
    John C. Ditto and William Townsend, Plaintiffs in Error, v. The State of Mississippi.
    1. Judgment nisi and soiee nacías thereon : variance between. — A variance between the sum for which the judgment nisi is rendered, and the sum mentioned in the scire facias issued thereupon to enforce it, will be fatal; and this objection will not be obviated by the fact that the sum mentioned in the scire facias, is the same as that mentioned in the recognizance, upon the forfeiture of which the judgment nisi was rendered. The scire facias must be supported by the judg- ■ ment nisi, in every material respect.
    2. Judgment nisi and recognizance : variance between. — If the judgment nisi, taken upon the forfeiture of a recognizance, be for a less sum than that mentioned in the recognizance, although erroneous, it will not be set aside on the objection of the cognizors, because it is not to their prejudice.
    3. Soiee facias and recognizance : variance between. — A variance between the recognizance and the scire facias, issued - to enforce a judgment nisi, taken upon a forfeiture of the recognizance, as to the term of the court to which the defendant was bound to appear, is material, and will be fatal to the validity of the scire facias, if the objection be properly made by plea, but not otherwise. .
    4. Record ; recognizance. — On a writ of error to a judgment by default final, on a scire facias to enforce a judgment nisi, entered on a forfeited recognizance, the defendant cannot bring to notice anything contained in the recognizance, because, after judgment nisi, and scire facias thereon, the recognizance is not properly a part of the record of that proceeding.
    ’ 6. Judgment by default on sciee facias. — It will not be error to enter judgment by default on a scire facias to enforce a judgment nisi, where there is a plea un-disposed of to the indictment, to answer which the defendant was recognized to appear; the sole object of the recognizance being, to compel the defendant to appear, in order that he may be put on his trial,
    
      IN error to the Circuit Court of Carroll County. Hon. William L. Harris, judge.
    The facts are sufficiently stated in the opinion of the court.
    
      James P. Seales, for plaintiff in error..
    1. The court had no right to render a judgment by default, while there was a plea filed in the action to which no objection was taken. Yide 8 S. & M. 120.
    2. The record shows that judgment nisi was rendered for $100, and judgment final for $150. The judgment is therefore inconsistent with itself, and of course, erroneous.
    3. The scire facias recites a judgment nisi to have been entered upon a recognizance, conditioned for the appearance of Ditto, on the first Monday of December, 1854, when, in truth, as appears by the record, the condition was, that he should appear on the first Monday of June, 1854. This variance must be fatal, because the scire facias gave to defendant no notice of the real recognizance being forfeited, which it was bound to do, that they might have opportunity to answer, and show cause why it should not be final.
    
      D. 0. Glenn, attorney general,
    said that he was of opinion, that the positions assumed by counsel for plaintiffs in error, were correct, but that he would not confess error. He submitted the matter to the superior judgment of the court.
   Mr. Justice HaNdy

delivered the opinion of the court.

This is a writ of error to a judgment rendered in the Carroll Circuit Court, against the plaintiffs in error, as principal and bail in a recognizance entered into, upon a charge of gaming, and which was forfeited.

The errors assigned are:—

1. That the judgment upon the - scire facias, issued after the forfeiture, was rendered by default, when there was a plea filed to the indictment, and was not disposed of.

2. That the judgment nisi was for the sum of one hundred dollars, and the final judgment on scire facias, was for one hundred and fifty dollars.

8. That the scire facias recites a judgment nisi, rendered upon a recognizance, conditioned for the appearance of Ditto on the first Monday of December, 1854, when the record shows that the condition was to appear on the first Monday of June, 1854.

The first ground of error is untenable. It was immaterial to the question of the liability of the accused, arising from his failure to appear in court, according to the tenor of his recognizance, that the issue upon the indictment was still pending. He was bound to appear according to his recognizance, in order to be regularly put on trial for the offence for which he was indicted.

The second cause of error is well assigned. The variance between the sum of money for which the forfeiture was taken, and the sum stated in the scire facias issued to enforce that judgment, is material; and this objection is not obviated by the fact, that the sum of money for which the judgment nisi was taken was erroneous, and not conformable to the recognizance; and that the judgment final was for the sum stated in the recognizance. If the scire facias had been in conformity to the judgment nisi, and had properly described the recognizance, and had been in other respects regular, it would not be competent for the cognizors to complain that the judgment nisi varied in amount from the recognizance, because the error would not be to their injury. Dut where the scire facias is not supported in a material respect by the judgment nisi, a judgment final, inconsistent with the judgment nisi, is erroneous, and if to a party’s prejudice, must be reversed.

Of a like character is the third ground of error. The variance between the recognizance and the scire facias, as to the term of the court at which the defendant was bound to make his appearance, is material, and constitutes a good defence to the scire facias. But the defendant will not be entitled to the benefit of it, unless he sets it up by plea to the scire facias; because, after the judgment nisi, and when the scire facias has been issued to enforce that judgment, the recognizance is not properly a part of the record of that proceeding, and must be brought before the court by plea of nul tiel record, or other appropriate plea. If the defendant suffers judgment by default, on the scire facias, he cannot, on writ of error to that judgment, bring to notice any thing contained in the recognizance. And such is the attitude of the plaintiffs in error in this case.

For the second ground of error., the judgment on the scire fa-cias is reversed, and the case remanded for further proceedings.  