
    The State of Maryland vs. Murphy and Thompson.
    
      June 1839.
    If a party who has recognized to appear to answer to an indictment, appears accordingly, and is discharged by the judgment of the court without day, and that judgment is reversed upon a writ of error, and the record remanded with directions to proceed with the prosecution, the recognizance cannot be forfeited, if the party fails toie-appoar to answer to the indictment.
    Appeal from Anne Arundel County Court.
    In this case the appellee, J. B. Murphy, at February term 1837, had been indicted in Baltimore City Court for a misdemeanor under the act to prevent gaming. Upon his suggestion and affidavit, the cause was transmitted to Anne Arundel county court for trial, the traverser and the other appellee, Joseph B. Thompson, entering into the following recognizance:
    “And thereupon the said Jesse B. Murphy acknowledges himself lo owe and stand justly indebted unto the State of Maryland in the sum of $2000 current money, and Joseph B. Thompson, also present here in court, and who is by the court here deemed good and sufficient, in like manner acknowledges himself to owe and stand justly indebted to the State of Maryland in the sum of $2000 current money, which said sums of money they and each of them acknowledge, shall be made and levied of their bodies, goods and chattels, lands and tenements, lo and for the use of the State of Maryland, in case the said J. B. M. shall not make his personal appearance before Anne Arundel county court, to be held at the city of Annapolis on the fourth Monday of October next, to answer the charge aforesaid, and shall not depart the said court without the leave thereof.”
    At the October term of Anne Arundel County Court the traverser appeared, and demurred generally to the indictment, in which demurrer the State joined, and the county court adjudged that the said Jesse B. Murphy be dismissed and discharged of the said indictment, and that he go thereof without day.
    From this judgment the Slate sued out a writ of error from Chancery, and brought the cause to the Court of Appeals, where, at December term 1838, the judgment of the county court was reversed; and the State adjudged to be restored to all things which by reason of said judgment she hath lost, and the cause was remanded to the county court with directions to proceed in the prosecution aforesaid, and to a trial thereof in the same manner as if no judgment had taken place or any writ of error had been prosecuted.
    The record being sent back in due course of law, at April term 1839, Boyle, B. A. G. appeared on behalf of the State. ,££And the said Jesse D. Murphy being solemnly called to come into .court, according to the tenor of his recognizance aforesaid .comes not, but makes default. Thereupon the State prays that the recognizance aforesaid of the said Jesse I). Murphy and Joseph B. Thompson may be forfeited, but the county court (Dorsey, C. J., Brewer and Wilkinson, A. J.) overruled tire motion, and adjudged that they be discharged from their said recognizance.
    From this judgment the State sued out another writ of error.
    The cause was argued before Buchanan, C. J., Stephen, Archer, Chambers, and Spence, J.
    By Z. C. Lee and Boyle, D. A. G., for the State, and
    By C. F. Pitts and Glenn for the appellees.
   By the court.

judgment affirmed.  