
    BROWDER v. THE STATE.
    1. An irregular judgment nisi upon a recognizance maybe vacated and set aside, even after a scire Jadas has been issued thereon, and the appropriate judgment may be entered nunc p-o tunc.
    
    2. An undertaking to answer to a charge for “ resisting process,” is sufficiently significant in a recognizance to indicate the offence intended to be charged, although the statute makes tire offence consist in “ knowingly and wilfully resisting or opposing any officer of this State in serving or attempting to serve, or execute, any legal writ or process whatsoever.”
    Writ of Error to the Circuit Court of Barbour.
    . This was a proceeding by a scire facias upon a recognizance to'appear and answer to a criminal charge. At the spring term of the Circuit Court, holden in 1843, the recognizance was forfeited, a judgment nisi rendered against the recognizors, and a scire facias issued thereon was returned “ executed.” Without any proceédings thereon, the case of the indictment was continued at the fall term of 1843. At the next term a second judgment nisi was rendered, and a scire facias issued thereon was executed. To this sci. fa. the defendant pleaded the first judgment in bar, having first demurred thereto without success. The State demurred to this plea, and the demurrer being overruled, an issue ’ was joined and submitted to the Court, by which it was adjudged that the second judgment be vacated and the sci. fa. issued thereon be quashed.
    On motion of the solicitor, a judgment nunc pro tunc was rendered against the recognizors in lieu of the judgment nisi, entered at the spring term of 1843. A scire facias was issued upon the amended judgment, to which the defendant demurred, and his demurrer being overruled, he pleaded nul tiel record; whereupon judgment final was rendered for the State.
    In the recognizance found in the record, the recognitors “ severally” acknowledge “ themselves to owe, and be indebted, to the State of Alabama, in the sum of five hundred dollars,” conditioned, that “ William B. Deloach, jr., personally appear,” &c. “and answer to a charge of the State against him for resisting process,” &c. The judgment nisi is several, viz: that the State recover of Deloach and the plaintiff in error, each, the sum of $500.
    J. Buford, for the plaintiff in error,
    made the following points:- 1. A sc,i. fa. against bail is a civil action, [4 Ala. Rep. 678,] and the recognizance maybe looked to as a part of the record. [1 Ala. Rep. 114; 4 Id. 673; 5 Id. 25.] Robinson v. The State, 5 Ala. Rep.- 706, was a case of a judgment by default. 2. The recognizors acknowledged themselves “ severally” to owe, that is, each of them owed; this makes the recognizance joint, and the statute does not make it otherwise. [Clay’s Dig. 238, <§> 61.] If this be so, the judgment on it should be joint also. [1 Ala. Rep. 114; 4 Ala. Rep. 671.] 3. A misrecital of the recognizance in the sd. fa. is fatal. [5 Ala. Rep. 25.] 4. The judgment nisi and sd. fa. thereon, are the substitute for a declaration, and should describe the offence to be answered to, with as much precision as an indictment. [7 Porter’s Rep. 10 ; 1 Ala. Rep. 31, 119; 5 Id. 25; 8 Porter’s Rep. 472; Clay’s Dig. 430, § 20; 2 Stew. A- P. Rep. 220; 4 Porter’s Rep. 428.] Although the principal in the recognizance may have resisted process, yet-it may have been under circumstances entirely consistent with his innocence — these words do not in themselves import a criminal charge. 5. If only the sd. fa. upon the judgment nunc pro tunc is to be regarded, then it is insisted that the demurrer should have been sustained, because the sd.fa. does not show a sufficient warrant for thus rendering the judgment — it sets out nothing but the judgment itself, without disclosing the motion, and memoranda of record, to authorize it to be perfected.
    Attorney General, for the State.
    The vacation of the judgment first entered, and the quashing of the sd. fa. thereon,, was certainly proper; if not, it was not prejudicial to the plaintiff; and even if that question could now be raised, he cannot complain of it.
    
      The difference between the first judgment and that rendered nunc pro tunc, is, that the one was joint-and the other several, so as to conform to the recognizance — memoranda of record furnished á warrant for thfis rendering it. [Governor, use, &c. v. Knight,- at last term.] No objection appears on the face of the last sci. fa.; the demurrer to it was ’therefore properly overruled.
    As the judgment, sci. fa. and recognizance are consistent with each other, the judgment on the plea of mil iiel record, was proper.- But if it were otherwise, the recognizance could hot be looked to, to show a variance. [4 Dev. Rep. 475 ; 2 Dev. &Bat. Rep.- 53.]
    The description of the offence in the recognizance, need not be as precise and technical as in the indictment — in designating the offence its character is apparent — this is fully 'done in the present case, and it would not be consistent with our laws to require the strictness contended for by the plaintiff in error. [Clay’s Dig. 481, §§ 20, 30; 430, § 29.] U7 States v. Bachelder, 2 Gall.- Rep. 15.] It is believed that there can be no doubt, but the recognizance is several, and the judgment against each recognizor therefore correct.
   COLLIER, C. J.

The judgment rendered upon the plea of the defendant below, to the scire facias issued upon the second -judgment nisi, whether correct in point of form or not, certainly concedes to him all he asked, and quite as much as he was entitled to. It annuls that judgment, and quashes the scire facias ; thfis an end was put not only to the proceeding then before the court, but the judgment being set aside, of course no process could be issued upon it in future.

The order for the judgment nunc pro tunc recites, that it appeared to the court, from ah inspection of the recognizance, the judgment nisi, rendered at the spring term, 1843, and the entry on the Judge’s docket, made in the handwriting of the Judge presiding at that term, that said judgment nisi should have been entéred in the following, instead óf the forth then employed.” Then follows a several judgment against éach óf the recognizors, for five hundred dollars, unless they show cause upon a scire facias, to the contrary. Tlxe case upoix the indictment, for any thing appearing to the coixtrary, was still pending and mxdetermixxed; but if this has beexx disposed of, the proceedings upon the recognizance were in fieri, and it was clearly competent for the court to have amexxded or vacated an ixxterlocutory judgment. This is all that was attempted, and if any memoranda of record was necessary to sustain the action of the court, it cannot be assumed, ixx opposition to the recital, that it did. not exist.

In the description of the recognizance, there is no discrepancy betweexx the recognizance itself, the judgment nisi, and scire facias. They each affirm that the recognizors severally acknowledged themselves to be indebted in the sum of five hundred dollars. This we think very satisfactorily shows, that they were each liable to a judgment for that amount, axxd that the court did xxot incorrectly rule the law, if the recognizance describes' the offence charged with sufficient precision. In Howie & Morrison v. The State, 1 Ala. Rep. 113, it was said, that the judgment nisi should show that the accused was required to answer the charge which his recognizors had stipulated he should answer; this was supposed to bo necessary to show a breach of the recogxxizance, without which it could xxot be forfeited! It was accordingly held, that where the judgment nisi affirmed that the accused was called to answer an indictment for forgery, it was not supported by a recognizance which undertook that he should answer a charge “ for counterfeiting a certain draft,” particularly described by date, amount, and parties names. So in Badger and Clayton v. The State, 5 Ala. Rep. 21, the undertaking was, that the principal should appear and answer a charge of the State exhibited against him for exhibitixxg a circus for pay, without first obtaixxing a license from the clerk of the County Court,” &c.; the judgment nisi recited that he was called to come iixto court to answer a charge of the State “ for exhibitixxg a circus, without first obtaining a license according to law.” It was held, that the judgment did not' conform to the undertaking of the recognizors — and a dictum is added, that the judgment was defective ixx itself, in not describing a legal charge — the correctness of which we need not now consider. Both these are cases in which there is an obvious discrepancy between the recognizance and the judgment.

In the case at bar, the statute on which the charge was founded, is doubtless the following, viz : “If any'person or persons shall, knowingly and wilfully, resist or oppose any officer of this State, in serving or attempting to serve, or execute any legal writ or process whatsoever, he shall, on conviction thereof, be fined not less than fifty, and not exceeding one thousand dollars.” [Clay’s Dig. 430, § 20.] We think the terms- resisting process,” arfe sufficiently significant in a recognizance, to indicate the offence intended to be charged. In the case cited from 5 Alabama Reports, the judgment professed to recite the charge, but failed in describing it, as it was expressed, both in the statute and recognizance. Here the offence is merely designated in the recognizance, the terms of which are adopted by the judgment. This we think quite sufficient; it cannot he admitted that thé same precision, in this respect, is required in a recognizance, as in an indictment.

The scire facias begins by stating, that at the spring term, 1845, a judgment nisi was rendered as of the spring term, 1843, of the Circuit Court, then sets out the judgment in ex-tenso, merely' omitting the preamble which was recited in the record, as a warrant for its rendition. If the sci. fa. were-defective, without the aid of a statute, we are entirely satisfied that its defects would be cured by the act of 1833, “ to simplify scire facias’s, in criminal cases, and for other purposes.” [Clay’s Dig. 481.] See Ellison v. The State, 8 Ala. Rep. 273.]

It follows, from what has.been said, that there is no error in the record; the judgment of the Circuit Court is consequently affirmed.  