At the February term of the city court of Montgomery, an indictment was found against Nat, alias Nat Gray, for burglary.
At the same term an order was made, by the court, to admit the accused to bail, in the sum of one hundred and fifty dollars.
A capias was issued, the accused arrested, and during the term time of the court, the sheriff admitted the accused to bail, taking his recognizance, with appellants as his sureties. The capias was for the arrest of the accused, on a charge of burglary, but the recognizance is, to answer an indictment for perjury.
At the June term, a forfeiture was taken, and a judgment nisi was entered against the accused, and the appellants for his failure to appear and answer an indictment for burglary. This judgment, at the succeeding October term, was made final.
On the trial to make the judgment nisi final against said appellants, they appeared and objected to said judgment being made final, “ upon the following state of facts It appeared that the said Nat Gray stood indicted for burglary in said court; and that during the session of said court, on the fifth day of March, 1868, an order was made that the accused might be admitted to bail in the sum of one hundred and fifty dollars, conditioned as the law prescribed, and that afterwards, on the seventh of March, 1868, the sheriff of Montgomery county, during the session of said city court, and at the s^me term at which said order was made, took said recognizance, which is the foundation of said judgment nisi, which said recognizance is in the following words and figures : (Here follows a recognizance in the usual form, to appear and answer an indictment for perjury.)
It was admitted said Gray made default, and that said appellants had been served with notice of said conditional judgment. These were all the facts in the case, in evidence; and on these facts, by consent of both parties, it was submitted to the court to be decided, whether said appellants were liable on said recognizance, “ the same as if all the *44questions presented by tbe above state of facts had been properly raised by pleading.”
The court decided for the State, and made the said judgment nisi final. The appellants excepted, and their bill of exceptions was signed and sealed, in which all these matters are stated. An appeal brings the case here for revision.
1. The first question to be considered is, as to the validity of the recognizance, upon the alleged forfeiture of which the judgment sought to be reversed is based. If the sheriff had no authority to take it, then it is null and void, and the judgment founded on it must be reversed. We think it clear that the order of the court fixing the amount of bail, gave the sheriff no authority to do so. Certainly, it did not authorize him to take bail in this case, being a felony, during the session of the court at which the order was made. If the order is a valid order, it would only have authorized the sheriff to take the bail in vacation. The order is very defectively made, and does not, in words, give the sheriff any authority to take bail at any time. It is as follows :
“ The State \ Burglary. February term, 1868. 239 vs. V May be admitted to bail in the sum Nat Gray, negro. ; of one hundred and fifty dollars.”
Section 4241 of the Revised Code, provides that “circuit and city judges may, during term time, by order, entered on the minutes, fix the amount of bail in all cases of bailable felonies pending in the court, and direct the sheriff to bail in vacation.” Thus, it is seen, the order does not directly give the sheriff any authority whatever in the matter, and if it did, and authorized him tojake bail during the term of the court, it would have been'a worthless order; the court could delegate no such power and give it to the sheriff.—Armstrong v. The State, 26 Ala. 81. But the court does not pretend to do any such thing; the order, at most, merely determines that the offense is bailable, and fixes the sum. There is no direction whatever to the sheriff. The decision of this question settles the case ; the judgment must be reversed.
2. There is another question that we hold to be equally *45fatal to the judgment as the oue above decided. It is this ; the indictment is for burglary.
The order of the court fixing the amount of bail is a case for burglary. But the recognizance is in a case for perjury. The judgment nisi, is for failing to appear to answer to an indictment for burglary. The appellants never stipulated that their principal should appear to answer to an indictment for burglary. We see no reason why sureties in such a case have not the same right to stand upon the terms of their contract, as well as in any other. They did not stipulate to answer for the appearance of their principal for a charge of burglary, but for the offense of perjury. This is not a case that falls within the influence of section 4245 of the Bevised Code ; that provides for the misdescription of an offense, but not for a case, where the offense is utterly of a different character. Eor instance, if the offense in the indictment is for stealing in a dwelling-house, and the offense in the recognizance is for stealing generally. In such a ease, the offense would be misdescribed, and would be cured by the said section; but this is not such a case.
The judgment of the court below is reversed and cause remanded.