
    Joseph Butler vs. The State of Mississippi.
    By the statutes of tiis state, recognizances for criminal offences must be made returnable to the next regular term of the circuit court after they are taken; a recognizance therefore, taken for the appearance of the accused at a time when no court sat by law, would be void ; and a judgment final thereon, and execution upon the judgment, would also be void.
    A void recognizance may be vacated at any time by the court to which it is returnable, even after a judgment thereon ; and all proceedings based upon it are void.
    
      In error from the circuit court of Warren county; Hon. George Goalter, judge.
    On the 6th of March, 1846, Miles C. Folkes, mayor of the city of Vicksburg, recognized William Mayhew, Joseph Butler, J. J. Rawls, Robert Wilson, Frederick Rogers, Henderson Markham, and W. J. Fotheringham, Mayhew in the sum of fifteen hundred dollars, and each of the others in the sum of two hundred and fifty dollars. The condition of this recognizance, was, that if “ the above bound William Mayhew shall be, and personally appear before the circuit court of Warren county, to be held at the courthouse thereof, on the third Monday of April, 1846, to answer the state of Mississippi, on a charge of exhibiting a faro bank, being interested in the loss or gain thereof, in the city of Vicksburg, on or about the 15th day of January, 1846; and shall not depart therefrom without leave of the court, but shall continue to attend said court from day to day, and from term to term, until legally discharged; then this recognizance to be null and void, otherwise to remain in full force and virtue.”
    On the 16th of June, 1846, this recognizance was entered forfeited in the circuit court of Warren county, and judgments nisi entered, because of the non-appearance of the parties on that day.
    On the 3d of August, 1846, a scire facias issued, reciting the recognizance to appear in April, 1846, the judgment nisi in June, 1846; and the order for the scire facias against each of the defendants.
    On the 7th of November, 1846, Butler made no answer to the scire facias, and execution was ordered against him.
    On the 17th of April, 1848, a motion was entered to quash the recognizance, because, 1st, returnable to a term of the court unknown to the law; and 2d, the defendant had no notice that a forfeiture would be taken at a term subsequent to the one named in the recognizance. The court overruled the motion, and the defendants excepted. Butler alone sued out this writ of error.
    
      W. C. Smedes, for plaintiff in error.
    
      Freeman, attorney-general, contra.
    
   Mr. Justice Thacheb.

delivered the opinion of the court.

On the 6th day of March, 1846, the mayor of Yicksburg took a recognizance from Mayhew, Butler, and others, conditioned that Mayhew should appear before the circuit court of Warren county, to be held on the third Monday of April, 1846, to answer the state on a charge, &c. On the 16th day of June, 1846, this recognizance was forfeited in the circuit court, and judgments nisi entered thereon, and scire facias issued on the 3d day of August, 1846 ; upon which execution issued on the 7th day of November, 1846, Butler having made no answer. On the 17th of April, 1848, a motion to quash the recognizance was overruled.

All recognizances taken from persons charged with a criminal offence, must, by our statutes, be made returnable to the term of the circuit court next to occur bylaw after the time that the said recognizances are taken. So, at common law, recognizances in cases of felony were to be certified to the general gaol delivery. Hawk. P. C. ch. 15, sec. 85, note.

This recognizance was taken conditioned for the appearance of the accused at a time when no court sat by law. The change of the time of holding the terms of the circuit court of Warren county to the second Monday in April, 1846, did not take effect until the 1st day of July, 1846. Laws of 1846, ch. 26, sec. 5, p. 187. The recognizance was therefore void. The Commonwealth v. Bolton, 1 Serg. &. Raw. 328; The State v. Sullivant, 3 Yerg. 281. Besides, this recognizance appears to have been made for the appearance of the accused on the third Monday of April, 1846. This is an additional defect.

The recognizance having been void, all the steps based upon it were void also, and it was likewise competent for the court to vacate the recognizance at any time.

The judgment of the circuit court is reversed, and the recognizance is here declared void, together with all the proceedings thereon.  