
    State of Tennessee vs. Wm. Sullivant and others.
    
    If, in a criminal case, the recognizance be taken for the appearance of the defendant to answer the charge, upon a day when the court does not sit, the recognizance is void, and no judgment can be had thereon against the bail.
    This cause arose upon a motion to quash a scire facias issued from this court against the defendants, as bail of William Porter. The scire facias recites, that the defendants entered into recognizance before the circuit court of Montgomery county, at August term 1830, in open court and in proper person, and acknowledged themselves jointly bound and indebted to the State of Tennessee in the penal sum of two thousand dollars, conditioned for the personal appearance of William Porter, before the supreme court at Nashville, on the first Monday in January next thereafter, then and there to answer the State of Tennessee on an indictment for perjury, and for his not departing thence without leave of the court. Th estíre facias further recites, that at January term, 1831, of the supreme court, before the judges of said court, the said defendants were then and there solemnly called to bring into court the body of said William Porter, to answer the State of Tennessee in an indictment for perjury, and came not, but made default: that the court entered a judgment -of forfeiture for two thousand dollars, unless, &c. The scire facias was made known to the defendants, and they appearing, to show cause why judgment final should not be entered, for cause moved that the said judgment nisi, and the scire facias issued thereon, be quashed.
    Thompson, in support of the motion. The legislature, on the thirty-first day of December, 1829, changed the time of holding the supreme court at Nashville, thereafter, from the first Monday in January in each and every year, to the third Monday in each and every year, which was the commencement of the term of the supreme court, after the passage of the act. See act of 1829, ch. 52: 1 Haywood and Cobbs’ Revised Laws, 170: 1 Alabama Reports, Loyd vs. the State, 34: Hawkins’ PI. Cr. ch. 15, section 84: and note 5, page 172.
    The legislature in this law, as in all others changing the sittings of the court, provided that the process and appeals theretofore issued and granted, should be returnable to the commencement of the new term, though issued to be returned to a previous day, and that such return should be good and effectual; but here the law passed before the recognizance was taken, and did not aid any imperfection in it.
    The recognizance notbeing authorized by any statute, and no authority given to recognize a party to appear upon the day fixed in the recognizance, it is of course void, there being no court in session at Nashville to try or receive him upon the day specified in the recognizance.
    
      A. Hays, Attorney General of the seventh Solicito-rial District, for the State.
   Peck, J.

delivered the opinion of the court.

This recognizance" was taken, requiring the defendant to appear at a time when no court sat. His plea must be allowed. We have no power to enlarge the terms of the recognizance, as to fix for him a manner of compliance different from the undertaking. No doubt there was a mistake in the judge who took the recognizance, or he was not informed that the time of holding the court had been changed. The recognizance is void; there was no authority to bind him to appear at a time, when appearance could avail nothing.

Motion allowed.  