Ishmael v. State ( 1874 )

Reeves, Associate Justice.

The securities of Monroe Ishmael could not be held liable for more than the amount of their bond and the costs incident to the proceeding by scire facias to enforce its collection. The penalty of the bond is one hundred dollars, for the payment of which the parties were jointly and severally liable. The judgment nisi, as taken against each defendant for one hundred dollars, amounting in the aggregate to three hundred dollars, was erroneous, being contrary to the stipulations of the bond. It seems to have been regarded by the court as if a separate sum had been fixed for each party, as in a recognizance, and for which all the parties to the bond would be jointly and severally liable. But the bond did not authorize the judgment for separate sums, nor in the alternative for so much money as should be necessary to pay the fine and costs assessed against Monroe Ishmeal on the trial against him. The judgment as amended and rendered for the amount of the fine and costs is also erroneous, and defendant’s motion or exceptions should have been sustained. If the judgment was rendered in the absence of the defendant, as might have been done in a case of misdemeanor, as provided by article 3156 of the Digest, and the District Attorney desired to forfeit the bond, the judgment should have been for one hundred dollars, the penalty of the bond, and for the costs of that proceeding, not including the costs of the criminal prosecution. (Art. 3160.) There are other questions in this case that might be discussed, but as they are not presented by brief or argument, and not necessary to a decision of the case, they will not now be considered.

Reversed and remanded.