delivered the opinion of the Court.
The language of the 8th sect, of the revised statute, ch. 92, on which the indictment is founded, is this : — “ Be it enacted that if any person, not being really and bona fide a sheriff, deputy sheriff or constable, shall pretend himself to be either of said officers, and take upon himself to act as such, or to require any person or persons to aid or assist him in any matter appertaining to the duty of sheriff,” Sic. To subject a person to the penalties of the above provision he must do both the acts specified ; he must pretend himself to be a sheriff, deputy or constable, and assume to act as such. The offence is charged in the words of the statute ; but the proof was, not that the defendant pretended himself to be a deputy sheriff but that he did an act in the name of the deputy sheriff mentioned, and with the intention of obtaining his sanction and adoption of it. This branch of the charge therefore, is disproved by the evidence, and this is a constituent part of the offence described in the statute. Neither do we think that the defendant in what he did, “ took upon himself” to act as a deputy sheriff, according to the true construction or design of the act, which evidently contemplates the open assumption and exercise of authority, claiming it as officially belonging to him; as in the instance put, of requiring aid and assistance.
We are all of opinion that the indictment is not maintained by the proof; and according to the agreement in the,case, the verdict must be set aside, and a general verdict be entered for the defendant.