
    Nathaniel J. Dean vs. The State of Mississippi.
    The mayor of the city of Vicksburg is authorized, by the charter, to recognize prisoners to appear at the circuit court, to answer for offences with which they stand charged.
    A recognizance, requiring the'prisoner to appear before “ the judge of the ” court to which the recognizance is returnable, is not thereby void.
    A recognizance, reciting that the offence of larceny, with which the prisoner was charged, was committed in a county different from that to the circuit court of which he is recognized, is not thereby rendered invalid.
    where the principal in a recognizance was recognized to appear, in the sum of seven hundred and fifty dollars, and the surety in a like sum of seven hundred and fifty, it is error for the court to render a joint judgment against principal and surety, for fifteen hundred dollars. '
    A recognizance should always set forth the cause for which it is taken, but it does not require a specific description of the circumstances of the offence.
    A suggestion to the high court of errors and appeals, that the principal in a recognizance, against whom a judgment was rendered in the court below, was dead before the judgment was rendered, cannot be noticed, or inquired into, by that , tribunal.
    On the 14th day of August, 1840, Miles C. Folkes, as mayor of the city of Vicksburg, took a recognizance in the following words and figures, to wit:
    
      “ State of Mississippi, )
    
    
      City of Vicksburg, ) s
    
    “ Personally appeared before me, Miles C. Folkes, mayor of said city,.N. J. Deán, David Dean, and Joseph H. Vannoy, who severally acknowledged themselves to be indebted to the state of Mississippi, as follows, to wit: the said N. J. Dean, in the sum of fifteen hundred dollars; the said David Dean, in the sum of seven hundred and fifty dollars ; and the said] Joseph H. Vannoy, in the like sum of seven hundred and fifty dollars, to be levied of their Respective goods and chattels, lands and tenements, to the use of the state now rendered, provided the condition hereof be broken. The condition hereof is such, that if the above named N. J. Dean shall be and personally appear before the judge of the circuit court of Warren county, at the court house thereof, on the third Monday of October next, to answer the State of Mississippi of a charge made on oath, by Thomas J. Scott, of feloniously taking, stealing and carrying away, on or about the night of the third day of August, 1840, in the town of Canton, in Madison county, State of Mississippi, about two hundred and seventy dollars in bills, or notes, on sundry banks, the property of J. D. Scott & Co. and Mr.'Latimore, as appears of record of the mayor’s court of Vicksburg, held on the 10th day of August, 1840, and shall not .depart therefrom without leave of the court, and shall continue to attend said court'from day to day, and from term to term, until legally discharged, then this recognizance to be void; otherwise, to remain in full force and virtue.
    
      “ Taken and acknowledged before me, this 14th day of August, 1840.
    
      “ Miles C. Folees, Mayor. ” (Seal.)
    On the 12th day of November, 1840, in and by the circuit court of Warren county, a judgment nisi was rendered against David Dean and Joseph H. Vannoy, as cognizors of N. J. Dean, in said recognizance, and a scire facias ordered to issue.
    • On the 14th of November; 1840, a motion was rnkde by the counsel of David Dean and Vannoy, to quash this recognizance, before the circuit court.
    1st. Because it requires the appearance of N. J. Dean, before the judge of the Warren circuit court.
    2d. It requires the appearance of Dean in Warren county, to answer to an offence, stated therein to have been committed in Madison county. Which motion was heard and overruled.
    tAt the April term, 1841, of the court, on the 24th day of April, 1841, the following proceedings were had, as set forth in a bill of exceptions, signed, sealed, and made a part of the record on that day ; which bill of exceptions is, in substance, as follows: '
    Oh the 24th day of April, 1841, a motion was made by said Dean and Vannoy, on whom.a sci. fa. had been served, to quash the í’ecognizance and scire facias ; because,
    1. Said recognizance requires N. J. Dean to appear, (or his bail to produce him) to answer before the court of Warren county, for an offence, stated in said recognizance to have been committed in the county of Madison.
    2. It requires the appearance of N. J. Dean before the “ judge of the circuit court of Warren county.”
    3. There is no judgment nisi upon the recognizance, on which a sci. fa. could or ought to have been issued, commanding said bail to appear.
    On the hearing of which motion, there was submitted to said court, the aforesaid recognizance, and the scire facias issued upon the forfeiture thereof, taken as aforesaid, aud an indictment in the following words, to wit:
    
      “ The State of Mississippi, i Warren circuit court, Warren County, to wit. j October Term, 1840.
    “The grand jurors of the State of Mississippi, taken from the body of the good aud lawful men of Warren county aforesaid, elected, empaneled, and sworn to inquire in and for the county aforesaid, on their oath present, that Nathaniel J. Dean, late of the county aforesaid, yeoman, on the first day of August, A. D. 1840, at Yicksburg, to wit, at the county aforesaid, with force and arms, four ten dollar notes of the Commercial Bank at Manchester, of the value of forty dollars, and two five dollar notes of the Commercial Bank at Manchester, of the value of ten dollars, one fifty dollar note of the Mississippi Union Bank, of the value of fifty dollars, of the goods and chattels of Thomas J. Scott and John D. Scott, then and there being found, feloniously did take, steal, and carry away, contrary to the statute in such case made and provided, and against the peace and dignity of the state of Mississippi.
    “ CHARLES T. FLUSSER,
    “ District Attorney, First Judicial District.
    
    “ Prosecutor for the State, Thomas J. Scott.”
    And this was all the proof before the court, on the bearing of the motiou, and ail the papers in the cause; which motion was overruled by the court, and said court proceeded to give judgment on said sci. fa. against David Dean and Joseph H. Yan-noy; to the overruling of which motion, and pronouncing said judgment, this bill of exceptions was tendered and granted.
    
      On the 10th of May, 1841, the said court rendered the judgment aforesaid, on the sci. fa. against Dean 'and Yannoy, in these words, to wit: “It is considered by the court, that the State of Mississippi have execution against the goods and chattels, lands and tenements, of the said David Dean and Joseph H. Yannoy, for the sum of fifteen hundred dollars, in the writ aforesaid specified, according to the form and effect of their recognizance therein mentioned, and also all costs of shit.”
    The errors assigned by plaintiffs in error are,
    1. The court erred in overruling the motion to quash the sci. fa. and recognizance.
    • • 2. The recognizance was not taken by a person having proper authority so to do.
    3. The recognizance was conditional for the appearance of Dean “before the judge of the circuit court of Warren county, on the 3d Blonday of October, 1840,” and the record does not
    ,show that such condition was’ not complied with. And the court erred in pronouncing judgment of forfeiture, on default of Dean to appear before the circuit court of Warren county on the 12th day of November, 1840.
    4. The condition of the recognizance shows that the circuit court of Warren county had no jurisdiction to inquire into the offence of which said Dean stood charged, (the same being alleged to have been committed in Madison county,) and no other proceedings were had which gave such jurisdiction to the court. And the appearance of Dean to answer said charge before said court, was not required or authorized by law.
    ' 5. The court erred in awarding execution against the bail, because the recognizance states that the amount acknowledged tobe due is “ now rendered ” instead of to be rendered for the use of the state.
    6. The final judgment against David Dean and Yannoy on said scire facias is a joint judgment for $1500, which is contrary to the true tenor and meaning of the recognizance.
    
      Tupper for plaintiffs in error.
    It will be seen that the validity, form and effect of the recognizance taken by the mayor of Yicksburg, are the only points to be considered by this court. Has the mayor of Vicksburg power under the law to take a recognizance from an individual for his appearance before the circuit court? If so, it must be derived from the charter of the city. My impression is that such power is not conferred, although I have not the charter before me.
    But if such power does exist, it certainly cannot enable that officer to compel an individual to appear at any specified time, before the judge of said court, much less to compel him to give bail for such appearance, to answer for a criminal offence. The recognizance was informal and invalid in this respect. But if it be not thus vitiated, the circuit court erred in pronouncing a forfeiture on the 12th of November, because, it must be observed, the condition of the recognizance required Dean’s appearance, not before the circuit court at a term to be holden, &c., but before the judge of the court, &c., to answer a certain charge preferred against him, as appears of record in the mayor’s court, &c., and not depart therefrom without leave of said court. What court? The reasonable and grammatical construction of the condition is that the mayor’s court alone is meant. The recognizance then is a nullity, as the conditions could not be reasonably fulfilled.
    As to the 4th assignment of error. The circuit court of Warren had no jurisdiction of an offence committed in Madison county. An offence must be tried in the county where the offence has been committed, unless the venue be changed, according to law. This proposition I presume will not be controverted. The condition of the recognizance then, as it required the performance of an act, not only unauthorized by, but contrary to law, was illegal and void. But does this case form an exception to the general rule ? It may be insisted that a thief may be apprehended and tried at any place or county, where he may be found in possession of the stolen property, although he may have first taken the property in another county. Still this is no exception to the rule. In that case, he is not tried for stealing the property in another county, but the law regards the thief as a continual wrong-doer so long as he keeps the stolen goods in his possession; and it is the offence of taking and carrying away the goods in the county where he is apprehended, for which he can be tried, and no other. It is unnecessary to cite authorities upon this point. It may be contended that an indictment was framed and preferred against Dean based on the recognizance. But what is the crime charged in the indictment? It is that of stealing in the city of Yicksburg, six notes of the Commercial Bank of Manchester, and one note of the Miss. U. Bank, amounting to $100, the property of Thomas J. Scott, and John D. Scott. The crime charged in the condition of the recognizance, and for which plaintiffs in error were bound, if bound at all, to produce Dean before the judge of Warren circuit court, was that of stealing about 270 dollars, in Canton, Madison county, the property of J. D. Scott & Co., and Mr. Latimore; two distinct offences altogether, as much so, for the purposes of this trial, as larceny and counterfeiting, or treason and arson. But it should be observed that although such indictment was adduced (improperly) on the trial of the motion to quash the recognizance and sci. fa. in the court below, it does not appear by the record that it was preferred by the grand jury, by themselves or through their foreman, according to law. After entering into this recognizance, what was the duty of David Dean and Yannoy ? Suppose they had taken measures forcibly to compel the appearance of their principal “ before the judge of the circuit court of Warren county on the 3d Monday of October, 1840,” according to their recognizance, would they not have been guilty of an illegal act, and of the commission of a trespass ? Ought they to be punished then for not doing so? Suppose Dean himself had voluntarily made his appearance according to his recognizance, his appearance would have been utterly useless and futile. He was charged with a crime of which the circuit court of Warren county had no jurisdiction. As well might he have been compelled to appear before the probate court, or any other court in the state, to answer to such a charge. Is it insisted tliat, as the offender was apprehended in Warren county, for larceny, there was evidence that such an offence was committed as to give the court of Warren jurisdiction ? It must be observed that there is no evidence — no intimations either in the recognizance or in the whole proceedings, that the money alleged to have been stolen in Madison, tvas found in the offender’s possession in Warren. But it is the recognizance alone, without any reference to extrinsic facts, so far as this point is concerned, that must govern this case. The cognizors, in deciding as to their duty, could look alone to the condition of their recognizance, and the 'crime of which their principal stood charged therein, and act according to law. They did so, it is conceived, in refraining from any compulsory measures to procure the appearance of N. J. Dean, at the circuit court of Warren county, on the day the forfeiture was taken against them.
    The fifth error assigned, it is believed, is well taken, as the awarding an' execution for what has already been rendered, according to the form of the recognizance, is doubtless erroneous.
    The sixth error assigned, is also a valid objection to the judgment, and sufficient of itself to authorize and require a reversal. A judgment of fifteen hundred dollars is rendered against David Dean and Yannoy, jointly. Whereas, by the recognizance, they are each bound, if bound at all, separately, for seven hundred and fifty dollars; and such is certainly the only judgment that can be rendered against them; otherwise great injustice, not contemplated by them" at the time of incurring the liability, might be done.
    
      J. D. Freeman, Attorney-General, for the state.
    The assignment of errors in the bill of exceptions is not well taken. The offence was larceny, and the defendant was therefore indictable in Warren county, where he was found with the money on his person, although the original taking was in Madison county.
    I can see no error in the judgment, nisi, but it is submitted to the court., that the judgment final against the sureties should have been several, for seven hundred and fifty dollars each, and not joint, for fifteen hundred dollars.
   Mr. Justice Thachee

delivered the opinion of the court.

A judgment was awarded in the Warren county circuit court, upon a scire facias, upon recognizance, against David Dean and Joseph H. Yannoy, securities of Nathan J. Dean, charged with larceny.

The first objection oifered in the court below, as a reasoft to quash the recognizance and scire facias, is, that the mayor of Ticksburg is not authorized by law to take recognizances. The charter of that city, section 41, conferred in 1839, fully conveys that power in all “ criminal and penal cases,” conferred upon justices of the peace.

The next objection was taken to the phraseology of the recognizance, which required the appearance of the party before “the judge of” the circuit court of Warren county, at the term next succeeding its date. No form of words is required for the validity, provided it contains the essential requisites, of such an instrument. The recognizance, in this respect, was more than sufficient.

• It was next objected, that the crime is alleged in the recognizance to have been committed in Madison county, of which the circuit court of Warren county had no jurisdiction. It is very true, that to legally convict the defendant in one county, when the original taking is proved to have been in another, it must be shown that the accused carried the property stolen into the county where he is indicted, because, in contemplation of law, he is guilty of, not only a carrying away, but also a taking, in every county through or into which the goods have been carried by him. 1 Hale, 507. 1 Hawk. ch. 33, sec. 52. But whether this was so or not is immaterial to the validity of the recognizance. The statute makes it the duty of those' authorized to act in such cases, to issue their warrant for the arrest of such persons as are charged on oath of having committed a felony, crime or misdemeanor; and, where the oifence is bailable, to take the recognizance of the accused, with sufficient security, to appear when and where, &c., to answer the same. The record shows all these preliminaries to the recognizance suffi- ' ciently.

The last error assigned is, that the judgment on the scire facias is a joint judgment against the said David Dean and Joseph H. Yannoy, for the sum of fifteen hundred dollars, while their obligation in the recognizance was not joint, but several, each for the sum of seven hundred and fifty dollars. Upon inspection of the record this objection seems to be well taken.

The judgment of the circuit court of Warren county is therefore reversed, and, as this is a case calling upon this court to pronounce the judgment which the court below should have done, it is directed by this court that judgment be entered up severally against the said David Dean and Joseph H. Yannoy, each for the sum of seven hundred and fifty dollars, and costs.

On the 20th of January, 1844, and after the foregoing opinion was delivered, the counsel for Dean filed a petition for a rehearing, accompanied with, the following affidavit.

Personally appeared in open court, T. C. Tupper, who being duly sworn, says, that to the best of his knowledge and belief, the above named N. J. Dean, died in the early part of the year 1841, in the city of New Orleans.

Affiant founds his belief upon the following facts: during the year 1841, one Daniel W. Dean, the brother of said N. J, Dean, returned from New Orleans to Madison county, where he had formerly resided, and reported the death, by yellow fever, during that year, of his brother in New Orleans, and that he was with him at the time of his death, and the fact is generally believed in the community where he formerly resided. Whether his death occurred before or after the 10th of May, 1841, this affiant does not positively know.

Sworn to in open court, this 20th January, 1844.

J. M. .Duffield, Clerk, H. C. E. and 'A."

The following is the petition for reargument:

To the high court of errors and appeals, of the State of Mississippi.

T. C. Tupper, counsel for David Dean and Joseph H. Yannoy, in the case of N. J. Dean, &c. vs. The State of Mississippi, prays for a rehearing of said cause for the following reasons.

When the cause was called on the docket, on the first week of the term, the papers in the cause were in possession of the attorney-general, and it was understood by petitioner that he would prepare a brief in the case, and that petitioner should reply if he chose to do so, and then the case should be submitted. On this understanding, the counsel for the plaintiffs returned home, and ascertained for the first time, on his arrival in this city, on yesterday evening, that the cause had already been submitted and decided, without an opportunity having been afforded to plaintiffs’ counsel, to see the brief of the attorney-general.

Counsel for plaintiffs further state, that N. J. Dean, for whose appearance, the said David Dean and Joseph H. Yan-noy were bound by their recognizance, is now dead, and counsel is informed that he died before the final judgment was rendered in the court below, of which fact, however, the said David Dean and Joseph H. Yannoy were not then apprized. This fact would have been suggested to this honorable court at the time the cause was submitted to the court, had not the counsel for plaintiffs believed that the case would not be presented to the court until the present week.

The counsel for the plaintiff's would respectfully suggest to the court, whether it was not erroneous to enter up a judgment against the said Dean and Yannoy, when it was impossible, by the death of their principal, to surrender him to the court.

The judgment of the court below was reversed; no valid judgment then existed against Dean and Yannoy, until the same was rendered by this court. And even if the said N. J. 'Dean was not dead at the time of the rendition of the judgment below, he was, beyond doubt, when the judgment was rendered by this court against his bail.

The above are deemed sufficient reasons for a rehearing, or for setting aside the judgment rendered against David Dean and Joseph H. Yannoy.

T. C. TuppeR.

The undersigned, practising attorneys of this court, respectfully pray the honorable court, to grant a reargument in the above stated cause.

January 16, 1844. John G. Ott,

H. A. H. Lawson,

W. R. Hill,

L. Maurv GaRRett.

The counsel for plaintiff, would beg leave to call the attention of the court again to the 4th error assigned, to wit:

That the recognizance was illegal and void, because the cause of taking it, as therein set forth, the commission of a crime in Madison county, was not such as to authorize the magistrate to require the prisoner to enter into a recognizance to appear before the circuit court of Warren county. It is well settled, that it is essential to the validity of a recognizance, that it show the cause of taking it. See 16 Mass. Rep. 447, and 9 Mass. Rep. 520. If a recognizance is void, that does not contain ,the cause for taking it, then, a fortiori, a recognizance setting forth a cause which does not authorize the taking it, is also void.

But if, on a reargument of the cause, the court should regard the recognizance to be valid, still the judgment is reversed, and as the death of the principal has been suggested, the bail ought to have the privilege of pleading that fact in bar, which can be done by remanding the causé to the circuit court of Warren county for further proceedings. ■

T. 0. Tupper.

Mr. Justice Thacher, delivered the following opinion, over-' ruling the application for a reargument.

This case comes up on a petition and motion for a rehearing.

As a general rule, we cannot regard, after the submission of a cause, any misunderstandings that may occur between the counsel in reference to the agreement of submission. It does not seem that in this cáse any injury accrued to the plaintiff in error, from a want of inspection of the attorney general’s brief by his counsel. That brief submitted all the points, with but little argument, and no reference to. authorities. The brief of the counsel for the plaintiff in error, brought all the points fully to the consideration of the court.

It is urged, that since judgment was rendered by this court, information of the death of the principal in the recognizance has come to the knowledge of counsel, and also that the death took place anterior to the final judgment in the court below. This is a fact concerning which tve cannot inquire. This tribunal is strictly appellate, and our only inquiry can be, whether the judgment below, as disclosed by the record, is correct. The judgment of the court below, in this case, was final, and the judgment of this court, decreeing such judgment as the court below should have pronounced, is a judgment nunc pro tunc.

A rehearing of argument upon the fourth error assigned, we imagine, would give us no cause for a change in our opinion. A recognizance should always set forth a cause for which it was taken, but it does not require a specific description of the circumstances of the offence. State v. Rye & Dunlap, 9 Yerger R. 386. If it shows a corpus delicti upon its face, it is sufficient. The recognizance in the case at bar gives a recital of the oath of him, by virtue of which the warrant of arrest issued, and has reference, also, to previous proceedings before the magistrate, in his office of record. It charges a larceny. And the recognizance need not set forth the evidence, nor the course of reasoning by which the magistrate arrived at his conclu'sion to require it. Though the original asportation was in Madison county, the removal of the accused, with the stolen goods, into another county, would constitute a new taking in that county. The case in 16 Mass. R. 446, Commonwealth v. Daggett, shows a recognizance “ to answer to such matters and things as should be objected against ” the principal, and contained no reference to any previous proceedings before the magistrate.” This was indefinite, and bad. The recognizance in the case at bar, sets forth, it is true, the oath of complainant to a charge of larceny, in which the original taking was alleged to have occurred in Madison county; but it likewise refers to antecedent proceedings, which authorized the taking of it, and an intelligible object for which it was entered into, and the jurisdiction of the magistrate follows from the transitory nature of the offence charged. 9 Mass. R. 492, Commonwealth v. Daggett. We cannot but consider the recognizance valid.

Motion overruled.  