
    JANUARY TERM, 1844.
    David K. McEwin, et al. v. The State of Mississippi.
    It is not an error to issue a capias, after indictment for retailing spirituous liquors in less quantities than one gallon. That is the proper process whenever the offence is punishable by imprisonment as well as fine.
    A sheriff is authorized by statute to take the recognizance of any person he may arrest on the process of the circuit courts, and the amount of the security taken is left to his discretion.
    Judgment was rendered on a recognizance made returnable to the third Monday after the fourth Monday in April, at a court holden on the third Monday in March, the legislature having changed the time of holding the court from the former to the latter day, and directed all process to be returned to the latter; held, not to be error..
    It is error to render judgment by default, when the parties have agreed to consider a plea filed and issue joined.
    This was an indictment, found at the November term, 1841, of the Circuit, Court of Pontotoc county, against William Mann, for selling spirituous liquors in less quantities than one gallon. The clerk issued a capias, and indorsed it in these words : “Let the defendant be recognized, himself in the sum of $250, with two sufficient sureties in the sum of $125 each ; conditioned as the law requires.” On the 3d day of March, 1842, the sheriff arrested Mann, and took his recognizance, with James N. Wardlow and David K. McEwin as sureties, returnable on the 3d Monday after the 4th Monday in April, 1842 ; himself in the sum of $200, and his sureties in the sum of $190 each. On the 23d day of March, 1842, Court having commenced its session on the 3d Monday of that month, the defendant being called and not appearing, a judgment nisi was taken, and a scire facias ordered. At the next term, the defendants appeared, and pleaded in these words, to wit, u Nul tiel récord and issue in short by consent;” to which the district attorney replied as follows, to wit, “ Replication and issue in short by consent.” At the March term, 1843, the Court rendered judgment against the defendants, by default, from which they appealed to this Court.
    
      
      C. D. Fontaine, for appellants.
    This case comes into this Court by appeal from the Circuit Court of Pontotoc county.
    The first error relied on by the appellants’ counsel, is, that a capias issued on the indictment, instead of a summons, or venire facias of the nature of a summons, the proper process on all indictments for offences inferior in grade to felony or mayhew. See 2 Hawkins, p. 395; 5 Bl. Com. p. 318, Tucker’s ed.
    The second error relied on, is, that the clerk had no right, in the absence of any order by the Court, to command the sheriff to recognize the defendant, and require two sureties for his appearance at Court.
    The third error is, a variance between the amounts in which the defendant and securities are respectively recognized, from those mentioned in the indorsement of the writ.
    The fourth error is, that the Court below had no right to render judgment by default, it appearing by the record that the defendants had filed the plea of nul tiel record, and issue taken thereon by the district attorney.
    And lastly, that the Court erred in rendering a judgment on a recognizance, made returnable to the 3d Monday after the 4 th Monday in April, when in truth and in fac.t the Court was holden on the 3d Monday in March.
    For these errors the judgment is erroneous and ought to be reversed.
    
      John D, Freeman, attorney-general, for appellee.
    The first error assigned, is, that a capias issued. In this State, a capias issues upon all indictments where the defendant is subject to corporal punishment. This was an indictment for retailing contrary to the statute. The punishment is fine and imprisonment. The defendant could not be tried unless he was brought into Court personally ; a summons would not effect this object.
    The recognizance in this case is taken by the sheriff, under the statute which authorizes that officer to take the recognizance of any person whom he may arrest in circuit court process, when the offence is bailable. The Court requires him to take such recognizance, in a reasonable penalty. See H. & H. Dig. p. 219, s. 13. The order of the Court in this case, was merely directory, and the sheriff was not therefore bound to recognize the defendant in the precise sums directed by the Court. The law has left it to the discretion of the sheriff, to say what sum is reasonable. If the order of the Court were the only authority by which the sheriff could recognize, a variance between the amount ordered by the Court, and that taken by the sheriff, would be error; otherwise under our statute. The second and third grounds of error, are therefore not well taken.
    The fourth error, is, that a default was taken, when the record shows a plea. The record shows an agreement of counsel to file a plea of nul tiel record in short; but no such plea was filed, and the judgment by default was therefore properly taken. If the Court shall be of the opinion that the judgment by default was erroneous, they may then decide the plea of nul tiel record by inspection, and render the proper judgment.
    The last error assigned is, that the recognizance was made returnable to the April term, when the Court was held in March. This is explained by the fact, that after the recognizance was taken, the legislature altered the time of holding the Court from April to March, and made all recognizances, process, &c., returnable at that time. See Laws of 1842, p. 221.
   Mr. Justice Thacheb.

delivered the opinion of the Court.

This was an appeal from the Circuit Court of Pontotoc county.

The first objection stated, is, that a capias issued on an indictment for retailing spirituous liquors in less quantity than one gallon, when the proper process was a summons, or venire facias in the nature of a summons. The offence is punishable by imprisonment as well as fine, and a capias was the proper process to bring the body into Court. Such process has long been in practice in England, after indictment, in the case of misdemeanors, and is the practice here, except in cases punishable by fine only. This, however, could not constitute error in any event.

It is next objected, that the clerk had no authority, without an order of the Circuit Court, to command the sheriff to recognize the defendant, and require two sureties for his appearance at Court. This, also, even admitting it to ,be true, could not constitute an error that would affect the judgment below upon the scire facias which has caused this appeal. A sheriff acquires his authority, to take recognizances of persons whom he may arrest on the process of the circuit courts, from the statute, H. H. 294, s. 13. He is thereby invested with discretion respecting the amount of the security.

The objection, that a variance exists between the amounts in which the defendant below, and security,.are respectively recognized, from those mentioned in the indorsement of the writ, cannot avail, by reason of the power invested in the sheriff by the statute. Neither does it affect the judgment on the scire facias.

Again, it is urged that a judgment was rendered on a recognizance made returnable to the 3d Monday after' the 4th Monday in April, at a court holden on the 3d Monday in March. This resulted from a change by the legislature of the time of holding the terms of the Circuit Court of Pontotoc county, and in the returns of recognizances and process to that court. Acts of 1842, p. 221.

In fine, it is objected that the Court rendered a judgment by default, while a plea of nul tielrecord, and issue joined thereon, was filed in the action. There seems to have been an agreement by the representative of the State, and the attorneys for the defendant, to consider such a plea and issue filed. In such a view, and it is a mode of making up pleadings in short which we reluctantly recognise, the judgment by default was erroneous.

The judgment, for this reason, must be reversed, and the cause remanded for further proceedings.  