Curry v. State

2 Morr. St. Cas. 1362, 39 Miss. 511

Opinion

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; lb., 620, art. 291; lb., 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.