
    Ditto et al. v. The State,
    30 Miss. Rep., 126.
    FORFEITURE OF RECOGNIZANCE.
    It is immaterial to the question of 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 is still pending. He is bound to appear according to the recognizance, in order to be regularly put on trial for the offense for which he was indicted.
    A variance between the scire facias and the judgment nisi is a fatal defect, sufficient to quash the scire facias. So, also, ⅛ a variance between the recognizance and scire facias, a good defense to the scire facias. But the defendant will not be entitled to it unless he sets it up by plea to the scire facias.
    
    
      If the defendant suffers judgment by default, on the scire facias, he cannot on writ of error to that judgment bring to notice anything contained in the recognizance.
    Error to Carroll circuit court. Iíaebis, J.
    
      James P. Scales, for plaintiff in error.
    1. The court bad no right to render a judgment by default, while there was a plea filed in the action to which no objection was taken. Vide 3 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. G. Glenn, attorney general.
   IÍANDY, J. :

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.
3. 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 tbe question of tbe liability of tbe accused, arising from bis failure to appear in court, according to tbe tenor of bis recognizance, that the issue upon tbe indictment was still pending. He was bound to appear according to bis recognizance, in order to be regularly put on trial for tbe offense for which be was indicted.

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

Of a like character is tbe third ground of error. Tbe variance between tbe recognizance and tbe scire facias, as to tbe term of tbe court at which tbe defendant was bound to make bis appearance, is material, and constitutes a good defense to tbe scire facias. But tbe defendant will not be entitled to tbe benefit of it, unless be sets it up by plea to the scire facias / because, after the judgment nisi, and when tbe scire facias has been issued to enforce that judgment, tbe recognizance is not properly a part of the record of that proceeding, and must be brought before tbe court by plea of nul tiel record, or other appropriate plea. If tbe 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 tbe plaintiff in error in this case.

For tbe second ground of error, tbe judgment on tbe scire facias is reversed, and the case remanded for further proceedings.  