¶1delivered the opinion of the Court.
¶2This was an appeal from the Circuit Court of Pontotoc county.
¶3The first objection stated, is, that a capias issued on an indictment for retailing spirituous liquors in less quantity than one gallon, when the proper process was a summons, or venire facias in the nature of a summons. The offence is punishable by imprisonment as well as fine, and a capias was the proper process to bring the body into Court. Such process has long been in practice in England, after indictment, in the case of misdemeanors, and is the practice here, except in cases punishable by fine only. This, however, could not constitute error in any event.
¶4It is next objected, that the clerk had no authority, without an order of the Circuit Court, to command the sheriff to recognize the *123defendant, and require two sureties for his appearance at Court. This, also, even admitting it to ,be true, could not constitute an error that would affect the judgment below upon the scire facias which has caused this appeal. A sheriff acquires his authority, to take recognizances of persons whom he may arrest on the process of the circuit courts, from the statute, H. H. 294, s. 13. He is thereby invested with discretion respecting the amount of the security.
¶5The objection, that a variance exists between the amounts in which the defendant below, and security,.are respectively recognized, from those mentioned in the indorsement of the writ, cannot avail, by reason of the power invested in the sheriff by the statute. Neither does it affect the judgment on the scire facias.
¶6Again, it is urged that a judgment was rendered on a recognizance made returnable to the 3d Monday after' the 4th Monday in April, at a court holden on the 3d Monday in March. This resulted from a change by the legislature of the time of holding the terms of the Circuit Court of Pontotoc county, and in the returns of recognizances and process to that court. Acts of 1842, p. 221.
¶7In fine, it is objected that the Court rendered a judgment by default, while a plea of nul tielrecord, and issue joined thereon, was filed in the action. There seems to have been an agreement by the representative of the State, and the attorneys for the defendant, to consider such a plea and issue filed. In such a view, and it is a mode of making up pleadings in short which we reluctantly recognise, the judgment by default was erroneous.
¶8The judgment, for this reason, must be reversed, and the cause remanded for further proceedings.