1. “Bail signifies a guardian, or keeper, &c. A man bailed is, where any one arrested or in prison, is delivered to others, as his bail, who ought to keep him to be ready to appear at a time assigned, or otherwise to answer for him. And, therefore, the bail may keep the person committed to them in their custody for their indemnity. Or, if he be at large, they may re-seize him and bring him before a justice to find new bail, or to be committed to prison. And this they may do upon a Sunday.”—2 Com. Dig. 3; Cain v. State, 55 Ala. 170. Before the statute, 29 Car. 2, c. 7, all ministerial acts upon a Sunday were lawful, though not judicial; as an arrest by an officer upon process. Reid v. State, (in manuscript.) The statute excepted from its operation, arrests in cases of treason, felony, or breach of the peace.—7 Com. Dig. 399. Admission to bail, at common law, whether the prisoner was in custody on an accusation of misdemeanor, or of felony, was not matter of right, but rested in a sound judicial discretion, and its allowance was the exercise of judicial power.—1 Bish. Cr. Pr. § 693, et seq. In this State it has been controlled by constitutional and statutory provision. The Bill of Rights of all our constitutions, has contained substantially the same provision: “ That all persons shall, before conviction,- be bailable by sufficient sureties, except for capital offences, when the proof is evident, or the presumption great; and that excessive bail shall not in any case be required.” The policy of the statutes is, and has been, to afford the citizen every facility for obtaining a discharge from custody, before conviction, on giving sureties for his appearance to answer the accusation .preferred against him. On an indictment for a misdemeanor, no order of a judge, no adjudication of a court, is essential to the admission of a .defendant to bail. It is matter of right, and on the sheriff in whose custody he may be devolves the duty uncon*169ditionally of discharging him on sufficient bail. The duty of the sheriff is purely ministerial, and for the manner of its exercise, he stands answerable, as he is for the exercise of other ministerial duties.—Code of 1876, § 4830. If the indictment charges a felony, and the defendant does not give bail in open court, the’ court must make an order, and cause the same to be entered of record, fixing the amount of bail required; and the sheriff has authority, and it is his duty, to discharge sitch defendant, in vacation, on his giving hail, as required in such order.”—Code of 1876, § 4831. Not only on the court is conferred this power of delegating to the sheriff authority, and imposing the duty of taking bail in cases of felony, but the judges of the city and circuit courts, the only courts in which there can be prosecutions by indictment for felony, are required during term time, by order entered on the minutes, to fix the amount of bail required in all cases of bailable felonies pending in the court, and direct the sheriff to take bail accordingly in vacation.—Code of 1876, § 4849. These and other statutory provisions to which reference can be made, show the solicitude of the General Assembly, to ■furnish the citizen charged with an offence which under the Constitution ; is bailable as matter of right, facilities for obtaining discharge on bail. When bail is given, the defendant is still regarded, as being transferred from the custody of the officer of the law, to the custody of his sureties, whose right to re-seize the principal, and exonerate themselves by his surrender, is declared.—Code of 1876, § 4859.
2. The principal in the present case, was in custody on an indictment for murder, and the Circuit Court in which the indictment was pending, adjudging in term time, he was entitled to bail, fixed its amount, and directed the sheriff to take in vacation an undertaking for his appearance, with sufficient sureties. The appellants joined him in the undertaking, taken by the sheriff in vacation, which they now insist was executed on Sunday, and is void as violation of the •statute, which prohibits all contracts made on Sunday, unless for the advancement of religion, or in the execution, or for the performance of some work of charity, or in case of necessity.—Code of 1876, § 2138. What effect this statute has on the common law principle, that the acts of ministerial officers done on Sunday are valid, is not a question which ought, in the present case to be considered and decided to its full extent. By no just interpretation, can the statute be extended to the acceptance by a mere ministerial officer of an undertaking of bail, which the statutes, and the order of court *170command him to take, leaving nothing to his discretion,, except the sufficiency of the sureties tendered. If the principal had been at large, it would have been the duty of the sheriff to have arrested him. Or, it he had been on bail, his sureties could have surrendered him. Or, if an exigency existed requiring it, the sheriff could have transferred his custody to another, or could have changed the place of it. The acceptance of the undertaking on Sunday, is no more than a transfer of the custody, a change of its place. The bail, instead of the sheriff, became the keepers. It would be repugnant to the policy of the statutes, which are framed with so much care to afford the largest opportunity for relief' from actual imprisonment, on giving bail, to construe the statute referring to contracts made on Sunday, as lessening-the opportunity and prolonging the. imprisonment.—Rice v. Commonwealth; 3 Bush (Ky.), 14. The exception in the statute, “ in case of necessity,” has been heretofore held by this court, to embrace a contract made by a creditor to secure his debt from an absconding debtor.—Hooper v. Edwards, 18 Ala. 280; S. C. 25 Ala. 528. The Supreme Court of Illinois, in Johnston v. People, 31 Ill. 469, held the taking of a recognizance of bail from one charged with a criminal offence, was a worh of necessity, within the exception of their statute. In Flagg v. Inhabitants of Millbury, 4 Cush. 244, the Supreme Court of Massachuse,tts, say: “By the word ‘necessityy in the exception we are not to understand a physical and absolute necessity; but a moral fitness or propriety of the-work and labor done, under the circumstances of any particular case, may well be deemed necessity within the statute.” There seems to us no ground on which the defence against the undertaking, because of its execution on Sunday, ought to be sustained, and if sustained, it would diminish a right-of personal liberty, the statutes have been carefully framed to secure. The case of Shiffey v. Eastwood, 9 Ala. 198, was a mere private contract between individuals, in which officers-of the law had no agency, and which was not expressly authorized by statute, and ordered by a court of competent jurisdiction.
3. The statute provides that when an undertaking of bail is forfeited by the failure of the defendant to appear, a conditional judgment must be entered against him and his sureties for the sum expressed in the undertaking, of which notice must be given and that it will be made absolute, unless they appear and show cause against the same. On the appearance-of the parties, if sufficient cause is shown, to be determined *171by tbe court, the conditional judgment must be set aside; but if the excuse is not sufficient; or if they fail to appear, the judgment must be made absolute, for the entire-sum expressed in the undertaking, or any portion thereof, according to the circumstances. The court is required to hear excuses for defaults, on application, at any time, when not engaged in other business; and if the conditional judgment is set aside, no costs are to be imposed.—Code of 1876, §§ 4863, 4868. The defendants pleaded in bar, that at a former term of the court, a conditional judgment was rendered against them, and on notice, they appeared at the next term and made answer that the undertaking was executed on Sunday;and thereupon the court set aside the conditional judgment. 'Was this a final judgment pronounced, and which the-court had authority or jurisdiction to pronounce, discharging the bail ? In form, and in words, it is a mere vacation of the conditional judgment, not adjudging the validity of the undertaking, or the liability of the bail, and we can not suppose it was intended by the court to have any larger operation. The statute does not clothe the court with an absolute-power of discharging or fixing the liability of bail; nor does it confer the power to determine questions of fact without the intervention of a jury, on which the validity of the undertaking, or the liability, may depend. The power the court can exercise, is that of passing on the sufficiency of the excuse for the default of the principal at the former term. If that excuse is adjudged sufficient, the conditional judgment must be set aside without costs. If it is not entirely satisfactory— if it is shown that the default was not unmixed with negligence, or a wilful disobedience of the duty of appearance, the judgment may be accommodated to the particular circumstances of the case, and made absolute for the whole, or a part of the sum expressed in the undertaking as to the court may seem just.— Cain v. State, 55 Ala. 170. The appéarance of the principal, and his submission to the orders of the court is contemplated, in-all cases in which the court exercises the power of setting, aside the conditional judgment, or of rendering it absolute for less than its whole amount. It is not contemplated, the power shall be exercised in cases in which he does not appear, and the court can not hold him to answer the indictment. The judgment pleaded in bar, was a mere order vacating the conditional judgment, without an adjudication of the validity of the undertaking, or of the liability of the bail, and is not. a bar to the present action.
*1723. The execution of the undertaking by Lowery and Owens was not put in issue by a verified plea, and without such plea there could be no inquiry into that fact. Parties to such an undertaking 'may employ initials, a mark, or any other designation, and will be bound as if they had written their names in full, if such was their intention.— Wimberly v. Dallas, 52 Ala. 196.
Judgment affirmed.