
    Lawton and others v. The State.
    In making an entry of the forfeiture of a recognizance to appear, Ac., it is not necessary to enter up a formal judgment reciting the names of the parties and the amount recovered.
    Where judgment final by default on a recognizance recited that the recognizance was taken “before E. W., sheriff,” &c., whereas it was taken “before E. W., justice of the peace,” &c.: Held, That the recital being surplusage, the varianco was immaterial.
    A bond to keep the peace and to appear at the next term of the District Court, there to answer, &o., is valid; and the whole penalty is recoverable upon the failure to fulfill either condition.
    Judgment final by default in a scire facias on a recognizance goes for the full amount of the penalty without a jury.
    A recognizance payable to Anson Jones, president, &c., and his successors in office, can be enforced by scire facias in the name of the State.
    Error from Red River. Scire facias on a bond taken before a justice of the peace to keep the peace and to appear at the next term of the District Court to answer a charge of assault and battery. The bond was taken before annexation, in the name of Anson Jones, President of ihe Republic. The appellants were sureties on the bond. At the next term of the court, indictment being found against the principal and he failing to appear, an entry was made declaring the bond “forfeited,” and ordering a scire facias against the principal and his sureties on the bond. At a subsequent term of the court, the defendants, having been served with the scire facias, failing to appear and answer, judg-meat final by default was rendered against them for the amount of the bond ■without the intervention of a jury. The judgment recited that the bond had been taken before E. W., sheriff, &c. The sureties prosecuted this writ of error.
    
      Morrill & Trimble, for plaintiffs in error,
    argued that the entry of the “ forfeiture” of the bond was not sufficient { that there should have been a formal entry of judgment that the State have and recover from the defendants (naming- them) the amount specified in the bond, (naming it,) unless they shall appear at the next term, &c.
    Note 50. — Boone v. Roberts, 1T., 147; Harrison v. The State, 3 T., 190; The State v. Cox, 25 T., 404; The State v. Glaevecke, 33 T., 53; Brown v. The State, 43 T., 349.
    II. There is no such bond set out in the record as the one on which the judgment purports to have been rendered. The bond purports to have been taken before one E. IV., a justice of the peace. The judgment purports to be on a bond taken before one E. IV., sheriff, &c.
    III. The bond contained two conditions : one to appear at court, the other to keep the peace. The penalty was to secure the performance of both conditions; and unless botli conditions had been broken, judgment could not have been rendered for the whole penalty. IVhat part of the penalty was intended to secure the performance of the first condition, or what the second? Tins is uncertain, and the bond is therefore void; at least a breach ought to have been assigned, and a jury called to assess the damages.
    IY. The bond was payable to Anson Jones, President of the Republic of Texas and his successor in office, and cannot be enforced at the suit of the State which is not the successor of Jones.
    Hamilton, for defendant in error.
    I. It was not necessary for the judgment nisi to set out specifically the names of ilie parties to the bond or the amount of the penalty. The bond being a part of the record, it was sufficient to refer to it. The scire facias disclosed fully the proceedings upon which it was founded.
    II. The second assignment of error proceeds upon a mistake as to the record. The final judgment is rendered in favor of the State, and recites merely the fact that the bond was taken “before E. IV., sheriff,” &c.
    III. The bond is good, and the proceedings upon it regular.
    IY. The bond beiug made payable to Anson Jones, President, &c., the suit is well brought in the name of the State of Texas. This is a penal action, and comes within the provision of the second section of the thirteenth article of the State Constitution.
   Wheeler, J.

It is unnecessary to notice particularly the several objections urged for a reversal of the judgment. They are either not supported by the record or not of a character to require to be severally considered. A scire facias, though a judicial writ, is yet so far in the nature of an original that the defendant may plead to it, and it is in that respect considered as an action. (Bac. Abr., Scire Facias; 3 Toml. L. D., 426.) It is in law an action, and in tlie nature of a new original. (1 Shep. R., 36; 5 Pike R., 265.)

Tile scire facias in the present case is founded on an obligation of record. It recites the recognizance and the proceedings upon it; it contains all the essential requisites of a petition and citation; and appears to be in all respects regular and legal. (Note 50.)

The judgment is that the State of Texas recover of the defendants the sum of six hundred dollars, “the amount specified in their bond entered into before Edward West, sheriff,” &c. This is, it is true, a misdescription of the recognizance. It was not entered into before the sheriff, but before a justice of the peace. This description or recitation is doubtless a mistake of the clerk in entering the judgment. The recital, however, was not necessary, is mere surplusage, and does not affect the validity of the judgment, which is otherwise complete. The judgment is for a sum certain, and the recognizance on which it is rendered is correctly recited in the scire facias. The right of the State to maintain the action is placed beyond a question by the Constitution of the State. (Art. 13, sec. 2.)

Judgment affirmed.  