
    Jackson Fields et al. v. The State of Mississippi.
    1. Recognizance : scire facias : order of court granting bail not a part of the record in. — The order of the Circuit Court admitting a party to hail on an indictment against him, is not properly a part of the record of the proceedings to recover judgment for a forfeiture of the recognizance ; and hence will not he considered on a demurrer to the scire facias issued to make final a judgment nisi entered on a forfeiture of the recognizance.
    2. Same : same : objection to order granting bail must be by plea.— The proper mode in which to take advantage of an irregularity in the order of the Circuit Court admitting a party to hail on an indictment found against him, is to bring it before the court by plea.
    Error to tbe Circuit Court of Tippah county. Hon. John W. Thompson, judge.
    
      
      George L. Potter and 0. Davis, for plaintiff in error.
    
      T. J. Wharton, attorney-general, contra.
   Handy, J.,

delivered tbe opinion of tbe court:

This was a scire facias issued upon a judgment nisi, &c., upon a forfeited recognizance entered into by one John B. Fields, principal, and the plaintiffs in error, his sureties, conditioned for his appearance at the Circuit Court to answer an indictment for larceny. The scire facias appears to be regular and in due form on its face, and shows that the recognizance was entered into before the sheriff of the proper county by the parties; the day on which the accused was bound to appear in court; his default on being duly called, and the failure of his sureties, on being thereto called, to bring him in; and the judgment, nisi, &c., against them. The sureties appeared and demurred to the scire facias, on several grounds: 1st. That no authority was shown in the record for the taking of the recognizance by the sheriff. 2d. That the recognizance was not taken in pursuance of the order of court, which authorized it only to be entered into by the principal, and not by sureties. 3d. That the order is void because-it does not fix the number of sureties, and does not authorize the sheriff to take it.

In support of these objections, it is insisted that, by reference to an order made by the Circuit Court in the matter of the indictment against John B. Fields, and appearing in the transcript of the record in this case, and in virtue of which this recognizance was taken, it appears that no authority was conferred upon the sheriff to take the recognizance, and that the court had no power to confer such authority under the circumstances of the case.

But the objections are not available upon demurrer to the scire facias. The proceedings of the Circuit Court in the matter of the indictment are not properly a part of the record in the matter of the recognizance and the proceedings had thereupon. The recognizance and the proceedings had thereon are collateral to the matter of the indictment, and constitute the proper record in the matter of the recognizance. It is true that it emanates from the charge brought against the defendant; but that does not render it in law a part of the record pertaining to the indictment; for, frequently, the recognizance is the first thing filed in court against a party; and in all cases it is the ground of a distinct and substantive responsibility apart from the charge which gave rise to it. Hence the order of court admitting a party to bail on an indictment pending against him is not properly a part of the record in the matter of the recognizance ; for that proceeding commences with the recognizance as the first matter of record pertaining to it. If, therefore, a party would avail himself of the insufficiency of the authority under which the recognizance was taken, by way of defence to a scire facias upon the judgment of forfeiture, he must do so by plea, presenting the question in a proper manner for consideration. It cannot' be reached by demurrer to the scire facias, because it is not properly a part of the record of that proceeding.

Without considering the grounds of objection to the regularity of taking the recognizance taken on the part of the plaintiffs in error, we think that the demurrer was properly overruled, and the judgment is affirmed.  