To the writ of habeas corpus the sheriff of Washington county made return that he detained Constantine *283Jacquemine in custody in obedience to the mittimus of a justice of the peace of Issaquena county, charging him with killing Peter Rigrone. The chancellor of the fifteenth district, before whom the writ was returnable, proceeded to inquire into the cause of the detention, and having heard the testimony, ordered that the prisoner be enlarged, upon his entering into bond, before the sheriff of Issaquena county, in the penalty of $2,500, with two or more good' sureties, to be approved by the sheriff, conditioned for the appearance of Jacquemine before the circuit court of Issaquena county, to answer the state on said charge. This order was made the 27th of August, 1872. On the 30th of the same month, the sheriff took the bond or recognizane of Jacquemine, and Wilson and Mayfield, his sureties. Subsequently, Jacquemine was indicted by the grand jury of Issaquena county, for the murder of Peter Rigrone, and not appearing, judgment final was rendered upon his bond or recognizance.
Wilson and Mayfield affirm, in this court, that the .bond or recognizance imposed no legal duty ór obligation upon them, because the sheriff could not be invested with authority to take it. It did not pertain to the office of sheriff, at common law, to-take a bail bond in such circumstances; his right so to do (if it exists at all) is by virtue of a statute. The authority of the sheriff is defined in article 235, Code of 1871: “ He may take bonds or recognizances from those whom he may arrest,” on the process of any circuit court, charged with a crime “not punishable with death,” and if the court or judge has omitted to determine the amount of the penalty, he may “ fix it.” He shall not, however, take bond if the process was issued in term time, and returnable forthwith. The conditions upon which the sheriff may take bail, under so much of this article as has any apparent application, are, that he must have arrested the prisoner under process of the *284circuit court. He has no discretion as to the amount of bail, unless the court or judge has omitted to “ fix it,” and then it must be for a grade of crime bailable under the laws. Section 2787 directs that when a defendant charged with a crime, shall be “ committed ” to jail for default it giving bail, it shall be the duty of the committing court or magistrate to state in the mittimus (among other things) the amount of bail required and number of sureties, and to direct the' sheriff to enlarge him on his entering into recognizance as required. This section has reference to investigations before justices of the peace, as conservators thereof, or any court or magistrate competent to inquire preliminarily into the commission of crimes, and to hold, by bail, or in close confinement, the accused to answer any indictment that may be preferred.
It it very manifest that this.bond or recognizance was not authorized to be taken by the sheriff under any of these statutes.
Can the judge or chancellor, before whom a prisoner is brought on habeas corpus, direct the sheriff to take and approve a bail bond ? Section 1409 declares that the judge shall immediately proceed to inquire into the cause of imprisonment, and shall either discharge, admit to bail, or remand the prisoner. The words are plain; there is no obscurity or doubt as to their import, and no room for interpretation. “ The judge shall admit to bail.”
Jacquemine having been committed to jail to answer for the killing of Peter Rigrone by a justice of the peace, the question before the chancellor, on the trial of the habeas corpus, was as to the character of the “ killing,” felonious or not, and then as to its grade, murder or manslaughter. He adjudged that the prisoner was entitled to bail, and it was his plain duty, under the law, then and there to have taken the bail bond. The committing magistrate must have supposed *285that the “killing” was murder, otherwise he would have stated in his mittimus that the sheriff should release the prisoner from confinement on executing a hail bond, with sureties in the prescribed amount.
Our reading of the statutes accords with the construction of the habeas corpus act in force in 1852. Pace v. State, 25 Miss. 54. The 4th section of the act of 11th June, 1822, is essentially the same with sec. 1409 of the Code of 1871. In reference to the former, the court said: “ The bond was not taken or approved by the judge making the order for bail, but by the sheriff, who had no. authority under the statute,” etc. In Butler v. Foster, 14 Ala. 323, it was said that unless there be a statute authorizing it, a court or judge cannot delegate authority to a sheriff to take a bail bond. The habeas corpus act of Alabama, §§ 3736-8, differing from ours, directs the judge to determine the amount of the bond, and then the sheriff of the county may approve the bail and discharge the prisoner. In Antonez v. State, 26 Ala. 84, it was held that it was only by virtue of the statute that the sheriff denied his authority.
Because the chancellor himself did not take the bond and approve the recognizance of the prisoner and his sureties, but delegated the authority to the sheriff, we are of opinion that the bail bond upon which the judgment was taken was invalid.
Wherefore, the judgment of the circuit court is reversed.