
    WILLIAMS, TUCKER et al. vs. THE STATE.
    1. The sureties on a forfeited recognizance cannot, by a demurrer to the scire facias, test the legal sufficiency of the indictment against their principal. A demurrer to the scire facias can reach no further than the recognizance on ■which the judgment nisi is founded.
    Ebrob to the Circuit Court of Macon.
    Tried before the Hon. E. Pickens.
    
      MoSes Daniel was indicted in tbe Circuit Court of Barbour county, for “inveigling, stealing, carrying and enticing away ” a negro slave. On bis motion, tbe venue was changed to tbe county of Macon, and be entered into a recognizance, with plaintiffs in error as bis sureties, to appear and answer tbe charge of negro stealing, before tbe Circuit Court of Macon. He did not appear, and a judgment nisi was entered up against bim and bis sureties. A writ of sci. fa. was issued, and returned “made known,” as to tbe plaintiffs in error, wbo appeared and demurred to tbe scire facias. Tbe demurrer was overruled by tbe court, and they tben pleaded nul tiel record. Tbe plea was found against them, and they prosecuted their writ of error to this court.
    Moses Daniel was indicted by tbe name of Moses Daniels; be pleaded tbe variance in abatement, as a misnomer, but bis plea is untried. Tbe recognizance is in tbe name of Moses Daniel, and so is tbe writ of scire facias.
    
    Tbe overruling of tbe demurrer, and tbe judgment rendered by tbe Circuit Court, are bere assigned for error.
    P. T. Sayre, for plaintiff in error.
    Moses Daniels is indicted for tbe larceny of a negro; a recognizance is given by plaintiffs in error, for tbe appearance of Moses Daniel. Tbe recognizance was forfeited. Sci. fa. issues, reciting that Moses Daniel was bound to answer an indictment against bim. Nul tiel record is pleaded, and judgment given for tbe State. Daniel and Daniels are not tbe same name. — Humphreys v. Whitten, 17 Ala. Rep. 30; so that tbe record does not show that tbe facts set out .in tbe sci. fa. exist, and tbe judgment ought therefore to have been for tbe plaintiffs in error.
    M. A. BALDWIN, Attorney General, contra:
    
    Tbe want of an indictment against tbe party, in tbe court to which be is bound, is no excuse for not appearing. Tbe court, and not tbe party, must judge of tbe necessity of bis appearance, and tbe party is not legally discharged, except by an order of court.' — State v. Sterrrett, 6 Halst. R. 124; State v. Cooper, 2 Blackf. 226; 11 Mod. Rep. 200, cited in Yiner’s Abv. 168; 2 Hawk. 173; 1 Cbitty Cri. Law, 105; Ellison v. State, 8 Ala. Eep. 273; Sbreeve & Knapp v. State, 11 ib. 678; State v. Weaver, 18 Ala. Rep. 296.
   LICIÓN, J.

This case is very fully covered by the decision of this court in the case of The State v. Weaver et. al., 18 Ala. Rep. 293. It was there ruled, that the sufficiency of the indictment can not be brought in question upon a demurrer to the scire facias on a forfeited recognizance. The re-cognizors (except the accused) have no connection with the indictment, and the question of regularity or irregularity, in this respect, is wholly disconnected from their undertaking. They bind themselves that their principal shall appear and answer the charge against him, and if he fail to do so, the condition of their bond is broken, and they become liable for the penalty. A demurrer to the scire facias can reach no further than the recognizance on which the j udgment nisi is founded, and in this case it is not pretended that there is error to be found in the proceedings on the recognizance, but the error assigned relates to the indictment alone.

The plea of nul tiel record is unsustained, and the judgment rendered on it by the court below is free from exception.

Let the judgment of the court below be affirmed.  