
    James Curry v. The State of Mississippi.
    1. Recognizance : not void for mistake in relation to time of holding the court. — A recognizance for the appearance of a party charged with crime is not void for a mistake in it, in relation to the time of the holding of the term of the court to which it is returnable.
    2. Scire facias : is a pleading and amendable as such. — A scire facias on a judgment nisi rendered on a forfeited recognizance is to he regarded as a declaration as well as process, and is amendable as other pleadings.
    Error to the Circuit Court of Adams county. Hon. Hiram Cassidy, judge.
    A recognizance was taken by a justice of the peace for the appearance of one McKeevin to answer a charge of forgery. Curry, the plaintiff in error, was surety. The recognizance was conditional for the appearance of McKeeyin “ at the next term of the Circuit Court of Adams county, to be holden at the courthouse thereof, in the city of Natchez, on the first Monday of May next, 1859.”
    The time of holding of said term was the sixth Monday after the fourth Monday in March, which in that year was the second Monday in May.
    A judgment nisi haying been entered against the cognizors, a scire facias was issued thereon. In the scire facias the recognizance was described as being conditioned for the appearance of said McKeeyin “ at the next term of the Circuit Court of Adams county, to be holden at the court-house in the city of Natchez, on the first Monday of May, 1859.”
    Curry moved to quash the recognizance because it was void. This motion being overruled, he pleaded nul tiel record to the scire facias, upon which plea issue was joined. The district attorney then asked leave to amend the scire facias, so as to make its recitals in relation to the recognizance correspond with the facts of the case. The amendment was made, and then the court found the issue of nul tiel record against plaintiff in error. Curry then sued out this writ of error.
    
      J. S. B. Thacker, for plaintiff in error.
    The condition of the recognizance is for appearance of principal “ at the next term of the Circuit Court of the said county of Adams, and State aforesaid, to be holden at the court-house thereof, in the city of Natchez, on the first Monday of May next, 1859.”
    The scire facias, originally, recited that the appearance in the recognizance was to a term of said Circuit Court “ to be holden at the court-house,” &c., “on the sixth Monday after the fourth Monday in March, being the second Monday in May.”
    Defendant below moved the court to quash the scire facias for the reason that the recognizance upon which it issued was void, which motion was overruled, and defendant excepted.
    Recognizances must be made returnable to the term of court next to occur by law after the time that they are taken. Butler v. The State, 12 S. & M. 470. The recognizance in this instance was for the appearance to a term of the Circuit Court of Adams county, to be holden on the first Monday in May, 1859, at which time no such term of said Circuit Court occurred by law. Tbe High Court can now quasb tbe recognizance. Butler v. State. Afterwards a plea of nul tiel record was filed by defendant below, and issue joined by the State.
    Upon tbe bearing upon tbe plea of nul tiel record and issue joined thereon, upon tbe application of tbe district attorney the court permitted tbe words, “ on tbe sixth Monday after tbe fourth Monday in March, being tbe second Monday in May,” to be erased from the scire facias, and in lieu thereof to be inserted tbe words, “ at tbe next term of tbe Circuit Court of tbe said county of Adams, and State aforesaid, to be bolden at tbe courthouse thereof in tbe city of Natchez, on tbe first Monday of May next, 1859;” and gave judgment upon tbe plea for tbe State, to wbicb defendant filed bis bill of exception.
    1. Tbe application to alter tbe scire facias came too late after tbe plea and issue thereon. It could be made only upon an application to set aside or quasb tbe writ. Code, p. 490, Art. 70.
    2. A scire facias (being process, Code, p. 490, Art. 73) can be amended only where some matter may have been omitted wbicb is required to be inserted in or indorsed on tbe process. Code, p. 490, Art. 70. Nothing of tbe kind bad been omitted in this instance.
    3. Tbe amendment made to the scire facias had tbe effect of destroying what was before a valid process, though not sustained by tbe recognizance.
    4. Tbe Statute of Amendments applicable to mere pleadings does not apply to process, because a special statute (Code, p. 490, Art. 70) regulates amendments of it, and process is not pleading, and a scire facias is a process.
    Under tbe issue of nul tiel record, there was a fatal variance between the recognizance and the scire facias unamended; 'and, when amended, tbe recognizance being void, the judgment should have been for tbe defendant below and not for tbe State.
    Tbe language of tbe recognizance is, “ the next term of court but that is qualified or rather ascertained by tbe words, " to be bolden,” &c., “ on tbe first Monday i'n May,” &c.
    
      The regular term of court occurred by law on the second Monday in May, and a surety might have had his principal forthcoming on thejirsi Monday.
    
      T. J. Wharton, attorney-general, for the State.
    There is no error, that I can perceive, for which judgment should be reversed. I think the motion to quash the recognizance was properly overruled. It was not void. It contained all the essentials required by law.
    Under the Code, all merely formal statements in such instruments have been abolished. All recognizances taken by any officer, in the discharge of his duties, shall be binding on the obligors therein, whether taken in the form presented or not, so. that the substantial matters required are set out; they shall only be void, so far as they are conditioned for performance of acts in violation of the law or policy of the State. Code, 139, Art. 201.
    It is true that the provision of the Code has relation more particularly to obligations entered into by public officers for the faithful discharge of their official duty. It marks a policy, however, which was intended to be carried out in all recognizances.
    So it is declared that all recognizances taken in criminal cases, whether they describe the offence committed or not, shall have the effect to hold the party bound thereby, to answer to such offence as he may have actually committed, and shall be valid for that purpose, until he be discharged by the court. Code, 632, Art. 368; Id. 620, Art. 291.
    After failure of motion to quash recognizance, plaintiff in error pleaded “ nul tiel record ” to the scire facias, on which the State took issue.
    Leave was granted to the State to amend the scire facias, and the record being inspected by the court, it was held that there was such a record. The bill of exception taken to that action of the court recites that the amendments consisted in erasing from the scire facias the words, from “ day to day, ¿during the sitting,” and “to be holden at the court,” and “on the sixth Monday after the fourth Monday in March, being the second Monday in May;” and inserting in lieu thereof the words, “ at the next term of the Circuit- Court of the said county of Adams, and State aforesaid, to be holden at tbe court-house thereof, in the city of Natchez, on the first Monday of May next, 1859.”
    The power to order the amendment remained in the court, notwithstanding issue had been joined on the plea of “ nul tiel record,” according to the rules and regulations prescribed in the Code, upon the subject of amendments. It was a matter purely in the discretion of the court. The discretion was wisely exercised to make the scire facias correspond with the terms and conditions of the recognizance. It did not impose a liability upon the party which he had not incurred by his own act. It conformed to the obligation he took upon himself in the recognizance. It subserved the ends of justice; made the scire facias conform to the recognizance; held the party to his own covenants; it obviated a merely technical objection.
    I think the judgment clearly correct, and ask that it be affirmed.
   Per Curiam.

The first error assigned is the refusal of the court to quash the scire facias upon the ground that the recognizance was void.

The recognizance was conditional for the appearance of defendant below, “at the next term of the Circuit Court,” to be held, &c., “ on the first Monday in May next, 1859.”

The scire facias recited a recognizance to appear “on the sixth Monday after the fourth Monday in March, being the second Monday in May.”

The recognizance was not void. See Code, 139, Art. 201; Id. 620, Art. 291; Id. 632, Art. 368.

Second and third. The plea of nul tiel record was properly overruled after the amendment of this scire facias which the court possessed the undoubted right to allow, so as to make it conform substantially to the recognizance upon which it was founded.

The scire facias is to be regarded as a complaint in the proceeding, as well as the process or writ by which the defendant is summoned to appear.

Let the judgment be affirmed.  