On the Merits.
The sheriff was unwilling to accept the appellant as surety until $1,500 should have been deposited in bank to his credit; and, the money having been deposited, that fact is now made the basis of the objection that he is a mere stakeholder and has no standing in court to appeal from a judgment which has been rendered against him for the amount'. The sheriff, however, testified that he did not know whether the money was still in bank and that he was looking to the surety to satisfy the bond, and there is no evidence as to the ownership of the money deposited. Upon the face of the record, therefore, the appellant appears to have quite a lively interest in the issue presented by the appeal. The defendant, Simpson, was arrested, as we have <j3een, by virtue of a warrant issued by the justice of the peace upon an affidavit charging him with certain acts which were supposed by the justice of the peace to constitute a crime necessarily punishable at hard labor, and he made his application to be released and obtained the necessary order fixing the amount of his bond with reference to that charge, since there was no other pending against him. Before he had availed himself of the order so made, however, and given the bond required by it, he was charged, by a bill of information subsequently filed, with other acts constituting the crime intended to have been, but really not, previously charged, and, though already in jail, was rearrested and “committed to jail” to answer the charge last mentioned. Whereupon, without further application or order, he gave the bond out of which this litigation has arisen (and which was evidently framed, not with reference to the original charge as contained in the affidavit before the justice of the peace, or with reference to the order made by the judge of the district court, but with reference to the charge contained in the information, filed after the making of the order) and was released. It may be here stated that the offense with which it was the purpose to charge the defendant, both by the affidavit and the bill of information, is one for which he can be prosecuted only by information or indictment (Const, art. 9), and the only purpose, therefore, that could have been accomplished by a bond taken pursuant to the order, as and when given, was to secure his appearance before the grand jury or his presence until the district attorney should file his bill of information. The bond as given, however, and for which there was no order, was conditioned-to secure his appearance before the court to stand trial on the charge contained *315in the bill. Ancl as matters then stood the ■sheriff was without authority to accept it, ■since the accused had been rearrested and recommitted upon a charge with respect to which the court had made no order.
It has frequently been held by this court that bail for the appearance of a person charged with crime cannot be taken by the sheriff .without an order of court therefor (the .allowing of bail and the determination of the .amount being judicial acts which must be performed by the judge), and that the surety on a bond received by the sheriff without such order is not bound thereby. State v. Jones, 3 La. Ann. 9; State v. Lougineau, 6 La. Ann. 700; State v. Clendennen et al., 6 La. Ann. 744; State v. Gilbert, 10 La. Ann. 532; State v. Balize, 38 La. Ann. 542; State v. Toups, 44 La. Ann. 904, 11 South. 524.
In State v. Brusle, Sheriff, 34 La. Ann. 61, it appeared that Prank Thomas was charged t>y affidavit with having “shot and mortally wounded one Jack Talbot, who since died from the effects of the wound,” and that he ■was released on a bond for $250; that subsequently he was indicted for manslaughter and pleaded to the indictment; that the trial of the case was postponed, and that thereafter, on the suggestion of the district attorney, he was rearrested, but ordered to be released on furnishing another bond of $250, which he refused to furnish, asserting that he was entitled to his liberty on the bond already given. Upon his application for ha-beas corpus, however, this court held to the contrary, saying (inter alia):
“It is a common practice, when the indictment is returned, a true bill having been found, •for the judge to issue a bench warrant, or an order of commitment in the nature of a warrant, and to fix immediately the amount of bail precisely because the previous bond had gone .out of existence.”
Our conclusion, then, is that, as the order under which the sheriff acted in this case contemplated the taking of a bond with reference to the charge contained in the affidavit before the justice of the peace, and as the bond sued on was taken with reference to a different charge, subsequently made, by bill of information, upon which the accused was rearrested and recommitted, the sheriff was without authority either to take such bond or to release the accused, and the surety is not bound.
It is therefore ordered, adjudged, and decreed that the judgment appealed from, in so far as it condemns J. O. Brown, appellant herein, be annulled, avoided, and reversed, and that there be judgment in favor of said Brown, rejecting the demand here made against him.