delivered the opinion of the court.
The entry on the minutes of the term at which the indictment was found was fatally defective in not sufficiently identifying the indictment upon which the prisoner was tried, as being the one which was found and returned by the grand jury. This defect in the entry having been discovered at the nest succeeding term, the circuit judge then ordered a fresh entry to be made, reciting the finding, and bringing in and filing of the indictment (properly identifying it), as having occurred at the preceding term; and the accused was thereupon put upon trial, convicted and sentenced.
The principal error assigned", is the action of the court in ordering at the second term a correction of the entry made at the preceding one; and if its action is to be construed as an amendment of the original entry, it was manifestly improper. If, however, it was a case where, under the statute, the court had a right to make an original entry at a term subsequent to that at which the indictment was found, then the first invalid entry might well be ignored, and the correct entry made at the succeeding term would be good as an original one.
By § 2795 of Code 1871, it is provided that “no entry of an indictment ‘found shall be made on the minutes of the court at the term at which the same is found, unless the defendant is in actual custody, or on bail or recognizance to answer such offence. But such entry may be made on the minutes of the court at any time after the appearance of the defendant.”
Wherever under this statute an accused person is not in custody nor on bail at the time of indictment found, no entry of the finding is to be made until after his arrest; after which event such entry may be made: and it seems manifest that in such case the power of the court to make the entry after arrest would not be lost because there had been an improper and insufficient entry before arrest.
The rightfulness of the second entry in the case at bar depends therefore on the question whether the accused was in custody or on bail at the time of indictment found. The learned judge below, correctly apprehending that this was the question involved, took proof on the subject, and arrived at *390the conclusion that the accused was not in custody nor on bail at the date of the finding of the indictment, and therefore overruled the motions for new trial and in arrest of judgment. If his conclusions of fact were correct, we concur in his view of the law; but we cannot agree with him in holding, under the proof disclosed by the bill of exceptions, that the accused was at large without bond when the indictment was found. He had been arrested immediately after the larceny, and by the committing magistrate had been required to give bond for his appearance at the Circuit Court, in the sum of $250, with two sureties. Failing to give the bond, he was committed to jail under a mittimus, correctly setting forth the nature of the commitment and the amount of bail required, and directing the sheriff in accordance with the statute to release him upon his entering into recognizance as required by the terms of the mittimus. This mittimus was lost by the constable while en route to the jail; but the prisoner was nevertheless received and incarcerated by the sheriff, and two days afterwards released upon a recognizance which in all respects complied with the requirements of the lost mittimus, as was shown by the proof taken. We presume that the sheriff was informed by the constable of the contents of the mittimus. ■
The sheriff who took this recognizance went out of office shortly thereafter, and failed to deliver it to his successor, in consequence of which it was not transmitted to the circuit clerk at the ensuing term of court. After the finding of the indictment, therefore, the clerk, having no knowledge of the existence of the recognizance, issued a eapias for the accused, who was rearrested, and gave a second recognizance in vacation.
The court below held that the first recognizance was invalid, and that the defendant was not under bond at the date of the indictment, upon the ground, as we suppose, that the sheriff had no authority to take a recognizance without a mittimus. We concede the principle, but dissent from the conclusion drawn from the facts. The sheriff undoubtedly derives his power to take the recognizance, under § 2788 of the Code, from the judgment of the justice of the peace making the commitment; and his action must strictly conform to the re*391quirements of the judgment. This judgment is certified to him by the mittimus, but the loss of the certificate does not vacate the judgment, nor deprive the sheriff of the authority to take bail. If notwithstanding its loss he does take a recognizance in exact conformity with the judgment of the court, as set forth in the missing mittimus (as is affirmatively shown to have been done in the case at bar), the obligation will be valid and binding upon the principal and his sureties. We conclude, therefore, that the accused was under recognizance when indicted ; that the return of the indictment into court should have been properly entered upon the minutes at the first term; that there was no power to make such entry at a succeeding term ; and hence that the judgment should be reversed, the indictment quashed, and the prisoner held to await the further action of the grand jury.
Let judgment be entered accordingly.