
    Monroe Ishmael v. The State.
    1. Scire facias—Judgment.—A bail bond, in which the principal and sureties are “jointly and severally ” bound in a specific sum, will not, when forfeited, authorize a judgment for the full amount of the bond against each of the parties bound; nor when such a bond is forfeited after the trial of the principal, can judgment be rendered for the amount of the fine (where the same has not been paid) and costs.
    2. Judgment.—In such case the judgment rendered upon forfeiture should be for the penalty of the bond and the costs in the proceeding to collect it, not including the costs of the criminal prosecution.
    Appeal from Hopkins.
    On the 25th of October, 1872, Monroe Ishmael executed a bond in the sum of one hundred dollars, with S. S. Ishmael and W. R. P. Ishmael as his securities, conditioned that he would appear “ at the February term, 1873, and remain from day to day,” &c., to answer an indictment for unlawfully using an estray. At the trial, Monroe Ishmael appeared by counsel, and being found guilty, his fine was assessed at fifty dollars. The fine was not paid, and a forfeiture of the bond being claimed by the District Attorney, a judgment nisi was rendered for one hundred dollars against the principal and against each of the sureties for a like amount. On this judgment scire facias issued on the 1st of July, 1873. At the October term, 1873, the court, on motion of the District Attorney, amended the judgment 
      nisi, and rendered judgment nisi against the principal and sureties, “jointly and severally,” for the fine, “and the further sum of one hundred and two dollars as costs of said suit and this proceeding.” At the same term the defendant and his sureties moved to set aside the judgment thus rendered, on the ground that no such judgment was authorized by law on the bond they had executed. This motion was overruled, and Ishmael and his sureties excepted. A judgment final was rendered at the same term against the principal and each of the sureties, “jointly and severally,” for fifty dollars and all costs expended in the proceeding on scire facias. From this judgment Ishmael and sureties appealed.
    
      George Clark, Attorney General, for the State.
   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.  