delivered the opinion of the Court:
This was a scire facias on a recognizance entered into by Felix Landis and Edward Cooper, at the May Term, 1863, of the Circuit Court of Fayette county, for the appearance of David Landis at the October Term of said court, to answer to an indictment for an assault with intent to kill. The scire facias recited that no term of the court was held in October, and that at the May Term following, the recognizance was duly forfeited. The defendants pleaded that the said David Landis did appear at the October Term, and did abide by all the orders of the court made at the said term. A demurrer was sustained to this plea, and this judgment on the demurrer is assigned -for error.
The demurrer was properly sustained. It appears by the scire facias that there was no October Term of the court in 1863, and the plaintiffs in error set up as a defense that David Landis did apjiear at that term, and perform all the orders of the court at that term. Technically, the plea is bad, as it is neither a denial of any material fact averred in the scire facias nor yet is it a plea in confession and avoidance. If the object was to raise the question, whether the lapse of the October Term discharged the recognizance, that is answered by the statute. Section forty-two, chapter twenty-nine, of the Revised Statutes, entitled “ Courts,” provides that, in case of a lapse of the term, “ all suits, writs, process, indictments, recognizances and other proceedings, shall stand continued over until the next term of the court, as effectually as if the same had been continued by order of the court.” The plea was clearly bad.
It is also assigned for error that the court erred in rendering judgment for five hundred dollars, the amount of the recognizance, instead of merely awarding execution on the recognizance. While an order merely awarding execution would have been sufficient, and, perhaps, technically more accurate, yet the rendition of a judgment in form, on which an execution will issue, can work no possible injury to the securities in the recognizance, and cannot be assigned for error. The result as to them is precisely the same.
Judgment affirmed.
L