Error to Benton Circuit Court.

Henderson Wetherford and Clemsey Wetherford were jointly indicted in the Morgan circuit court at the March term, 1852, for a felonious assault upon one Cline, with intent to kill. After several continuances, at the April term, 1854, Clemsey Wetherford failing to appear, a forfeiture of her recognizance was taken. At the October term, 1854, Henderson Wetherford filed the following petition for a change of venue:

“ To the Honorable the Circuit Court within and for Morgan county, and state of Missouri: Your petitioner, Henderson Wetherford, would respectfully state that he believes the defendants can not have a fair trial of this cause in this judicial circuit on account of the prejudice of the circuit judge, and that he only became satisfied of said prejudice since the calling of this case. Defendants therefore respectfully ask that said cause may be sent by change of ventre to some judicial circuit where such prejudice does not exist. Henderson Wetherford makes oath and says he believes the matters stated in the foregoing petition are true. [Signed] Henderson Wetherford.”

The court thereupon granted the prayer of the petition and made an order removing the cause to the Benton circuit court. Henderson Wetherford and Clemsey Wetherford both entered into a recognizance to appear in the Benton circuit court. Clemsey Wetherford failing to appear to answer to the indictment in the Benton circuit court, her recognizance was forfeited and a scire facias awarded. On the return day of the scire facias, Clemsey Wetherford appeared and filed a motion to set aside the forfeiture of the recognizance and dismiss the cause and all proceedings had in relation to Clem-sey Wetherford, because the indictment was found in the county of Morgan and there never was any change of venue taken to the Benton circuit court, because the Benton circuit court had no right to take such forfeiture; that said Clemsey was not bound to appear in the Benton circuit court by force or virtue of said recognizance; and that the court had no jurisdiction of the same. The motion was sustained and the proceedings dismissed, and the defendant, with her securities, discharged.

The State brings the cause here by writ of error.

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