In the reasons assigned therefor by Judge Sayre for his refusal to discharge petitioners on their application, he states, that on hearing the first writ of habeas corpus returnable before him when he ordered the discharge of the prisoners, he thought that the order of the city court, Judge Thomas as associate judge presiding, holding petitioners for investigation of the charge against them by a future grand jury was void, because petitioners were not present in court as appeared, when such order was made, but he now finds that petitioners were not entitled to a discharge from the prosecution pending in the city court, except on an order of the court, or by lapse of the time without an order holding them. He adds: “The term of the city court has not yet expired. There has been no *55discontinuance of the original prosecution. It is immaterial whether the petitioners were in court when the order was made, because the order itself was immaterial while the term lasted. The order holding petitioners was the order of the city court of Montgomery, made while Judge Thomas was presiding there, for the conduct of criminal business. The order discharging petitioners on the first writ of habeas corpus was made by me as judge. It did not affect the status of the prosecution then pending in the court, and cannot, therefore, operate as a discontinuance of it. * * * I now order that petitioners be held by the sheriff of Montgomery county, under commitment of the recorder of the city of Montgomery.”
There can be no question but that the conclusion of the learned judge was correct. It is well settled with us, that- when one is bound over to the circuit or city court, to answer an indictment, his case pends through the term of the court .to which he is bound, unless sooner discharged. If the court should fail before the adjournment of its term, to take any action in the case, the mittimus by which the defendant is held, would become exhausted — functus officio — -leaving nothing upon which defendant could longer be detained. But, if the court, no indictment having been found, should enter an order of continuance of the case for further investigation by a grand jury, a discontinuance would be intercepted, the life of the mittimus preserved, and defendant properly held thereunder. — Rogers v. The State, 79 Ala. 59; Ex parte Stearnes, 104 Ala. 97; Fuller v. The State, 122 Ala. 32.
The city court having by the mittimus of the recorder obtained jurisdiction of the persons and' offenses of the petitioners, to dispose of their cases, this jurisdiction could not be taken away or interfered with by any officer authorized to issue the writ, to discharge them on 'habeas corpus. The first order to discharge them was, therefore, void, and the judge committed no error in refusing to discharge petitioners, under the writ in this case.
It is unnecessary to consider the matter of the rearrest of petitioners under a warrant from Justice ■Screws.
Affirmed.