Evans and Arrington v. Keeland. It is not necessary that I should controvert any thing that was said in Pitts v. Cottingham, and Camp v. Camp: it may be admitted that these decisions are just exponents of the law as applied to vendor and vendee. In such contracts it may be conceded that the vendor may make such representations as to the value of the land he is selling, or express such an opinion as to its quality as he may be inclined, and if the vendee has an opportunity of examining the land himself he shall not be allowed to set up the falsity of the statements as a ground for the rescission of the contract. But the case at bar, is in my judgment, entirely dissimilar, both in fact and principle, from that supposed. Here it was a matter for the consideration of the jury, whether Arrington was not called on by the vendor to be the vendee's surety, and whether he was not induced by the representations of the vendor, to sign the notes. If he was thus induced, and these representations were made with the knowledge or belief that they were untrue, or without caring or stopping to inquire whether they were true or not, then the jury might very well have inferred that they were made with the intention to defraud; and under these circumstances, I cannot doubt, that no obligation would have attached to the undertaking of Arrington. Whether the statements of Bolling were matters of opinion or affirmations, if intended to deceive, and unfounded in themselves, is wholly immaterial. The law should have been stated to the jury as I have shown the facts required, instead of saying that "the vendor had a right to make any representations he might see proper as to the quality of the property, and if the security chose to rely on them, it would not avoid his liability, because it was Arrington's duty to have examined into the matter himself." Further, "that no representation made by the vendor to Arrington, to induce him to sign as security, would constitute a fraud of which he could take advantage, if those misrepresentations could have been discovered by Arrington by diligent inquiry and examination to have been false. The result of this view is, that the judgment should be reversed, and the cause remanded. In the legal principles stated in the opinion of my brethren, so far as they are not op Evans and Arrington v. Keeland. posed to what I have said, I in general concur; perhaps ap-· prove them in toto. ORMOND, J.-This cause has been again argued, and we have given to it the fullest consideration. The effect of this has been to confirm us the more fully in the judgment heretofore pronounced, as to the effect in law, of the declarations imputed to Bolling, the vendor. The only matter about which we entertained a doubt, was, whether as the charge was wrong abstractly considered, the defendant may not have been prejudiced by it, as the bill of exceptions does not profess to set out all the facts. Such could not however be the case, as the charges of the Court are predicated upon the testimony set out in the bill of exceptions. The language of the bill of exceptions, is, "upon this state of facts the Court charged the jury," and if other testimony existed, requiring the law to be charged differently, it should have been set out, and a charge asked upon it. It is the established law of this Court, settled by numerous adjudications, that a cause will not be reversed, though the Court may have committed an error in its charge, if it could not prejudice the party against whom it was pronounced. [Porter v. Nash, 1 Ala. 452; Randolph v. Carlton, 8 Ala. 607; McBride and Wife v. Thompson, ib. 650.] The case of Peden v. Moore, 1 S. & P. 81, settles the principle, that when the Court gives a wrong charge to the jury, this Court will reverse, although the evidence is not set out, so as to show that it is not abstract. This case does not come within the influence of that rule, because, here the testimony is set out, and the charge is predicated upon it, so as to enable this Court to say precisely, what influence it was calculated to exert upon the jury. When the Court said, that "the vendor had a right to make any representations he might see proper, as to the quality of the property, and if the surety chose to rely upon them, it would not avoid his liability, because he ought to have examined," &c., it is evident the Court is confounding the case of the vendee, with that of his surety; and even as to the former, it must be admitted the law is laid down too broadly. But how could this prejudice the party complaining of it. The Court might have Evans and Arrington v. Keeland. told the jury, that these representations were matters of opinion, and whether correct or incorrect, could have no influence on their verdict. Such being the case, it is self-evident, that the charge could not have prejudiced the surety. Again-When the Court say to the jury, that no representations made by the vendor to the surety, to induce him to sign as surety, would constitute a fraud of which he could take advantage, if such representations could, by diligent enquiry, have been ascertained to be false, he is again confounding the surety with the vendee, and even as to the latter, charging the law incorrectly. But when the Court say the vendor could make no representation of which the surety could take advantage, it must be understood in reference to the testimony before the jury, or there was no testimony, and it was abstract. In neither, aspect, could it possibly prejudice the surety. In truth, the charge as given, was more favorable to the surety in one aspect, than the defendant could have asked for, as it authorized the jury to find for him, if by diligent enquiry he could not have ascertained the representations to be false. This may be a hard case upon the surety, but we cannot bend the law to suit particular cases; and in our deliberate judgment, if such opinions as are here expressed, could be left to the jury, as evidence from which they might infer a fraudulent intent, so as to absolve the surety, when the same opinions, expressed in the same manner, would not vacate the contract of his principal, it would virtually put an end to the contract of suretyship. The judgment heretofore pronounced by the majority of the Court, must remain as the judgment of the Court. COLLIER, C. J.-I cannot seriously doubt that the law in this case has been incorrectly ruled, and upon points not abstract; consequently, I adhere to the dissenting opinion heretofore pronounced by me. Browder v. The State. BROWDER v. THE STATE. 1. An irregular judgment nisi upon a recognizance may be vacated and set aside, even after a scire facias has been issued thereon, and the appropriate judgment may be entered nunc pro 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 the 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 proceedings 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 recognizors "severally" acknowledge "themselves to owe, and be in Browder v. The State. debted, 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 sci. fa. against bail is a civil action, [4 Ala. Rep. 673,] and the recognizance may be 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. 233, § 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 sci. fa. is fatal. [5 Ala. Rep. 25.] 4. The judgment nisi and sci. 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. & 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 sci. fa. upon the judgment nunc pro tunc is to be regarded, then it is insisted that the demurrer should have been sustained, because the sci. 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 sci, 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. |