Browder v. The State. 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-the memoranda of record furnished a warrant for thus rendering it. [Gov-. ernor, 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 nul tiel record, was proper. But if it were otherwise, the recognizance could not 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.] U 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; thus 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 an 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 entered in the following, instead of the form then employed." Then follows a several judgment against each of the recognizors, for five hundred dollars, unless they show cause upon a scire facias, to the con Browder v. The State. trary. The case upon the indictment, for any thing appearing to the contrary, was still pending and undetermined; but if this has been disposed of, the proceedings upon the recognizance were in fieri, and it was clearly competent for the court to have amended or vacated an interlocutory judgment. This is all that was attempted, and if any memoranda of record was necessary to sustain the action of the court, it eannot be assumed, in opposition to the recital, that it did not exist. In the description of the recognizance, there is no discrepancy between 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, and that the court did not incorrectly rule the law, if the recognizance describes the offence charged with sufficient precision. In Howie & Morrison v. The State, 1 Åla. 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 be necessary to show a breach of the recognizance, without which it could not 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 exhibiting a circus for pay, without first obtaining a license from the clerk of the County Court," &c.; the judgment nisi recited that he was called to come into court to answer a charge of the State "for exhibiting 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 in itself, in not describing a legal charge-the correctness of which we need not now consider. Both these Browder v. The State. 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," are 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 be admitted that the 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 extenso, 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. Rhodes v. Sherrod. RHODES v. SHERROD. 1. The agent of a corporation, who accepts bills drawn on him by a stockholder, for the accommodation of the corporation, is a competent witness against the drawer or indorsers, when sued on the bills, and also if the action is for money paid, &c., by one party to the bill against another. 2. Although bills are drawn and indorsed for the accommodation of a corporation, it is competent for one party, when sued for money paid, &c. to show by parol, that the agreement was to contribute jointly in case of loss; and this, although the names, as indorsed on the bills, indicate a different liability. 3. Although the evidence stated in the bill of exceptions may not seem to warrant the verdict, yet an appellate court will not reverse where no question was made to the jury, on the effect of the evidence. 4. When a charge is not full, upon the evidence before the jury, or is even ambiguous, this is no cause for reversal, when no instructions beyond those given are asked for. 5. The circumstance that a party to a bill, sued by another party to the same bill, stands upon it as the last indorser, is not conclusive that he is not liable to contribute otherwise, when there is evidence before the jury of a collateral agreement. 6. This Court will not reverse on the ground that too much damages are given, assuming the evidence stated in the bill of exceptions as furnishing the rule, when no specific instructions are asked to the jury on the measure of damages. Writ of Error to the Circuit Court of Tuscaloosa county. THE suit is by Sherrod, against Rhodes, and the declaration contains counts on three bills of exchange, as well as the common counts. The bills are described as having the following parties, to wit: the first, Rhodes as drawer, A. S. Christian as first indorser, for $6,034 67. The second, drawn by A. S. Christian; James T. Sykes as first, and Rhodes as second indorser; for $6,034 66. The third, drawn by Jas. T. Sykes, with Rhodes as first indorser, for $6,034 67. · All of these bills were likewise indorsed by Sherrod, and accepted by David Deshler, as treasurer of the Tuscumbia and Courtland Rail Road Company. At the trial, the bills were produced, and read to the jury, without exception. Rhodes v. Sherrod. The plaintiff then offered David Deshler as a witness, whereupon he was asked by the defendant, whether he was a stockholder in the Courtland, and Tuscumbia Rail Road Company, and answering that he was, the defendant objected to his competency as a witness. The Court overruled the objection. The witness stated he was, when the bills were accepted, and for a long time before had been, the treasurer of said company, and that he accepted them as treasurer, by direction of the board of directors. He also stated, that the company had been engaged in a system of financiering, for the purpose of raising funds, from the year 1833, and this was continued up to the date of the bills. The mode of doing this was, for members of the company to draw bills upon their treasurer, and let him accept them; these bills were indorsed by other members of the company, and when due, the treasurer, if he had funds of the company, appropriated them to their payment, and if he had none, he procured other bills to be made in the same way, to take up the old ones. The plaintiff's name was always on nearly all of the bills of the company, made as before described. In 1836, the plaintiff wished to withdraw his name from the paper of the company, but the directors would not consent for him to do so, as it would injure the credit of the company, and it was finally agreed, the plaintiff would indorse any paper which any of the directors might make in this way, if they would let him be the last indorser, inasmuch as he was very wealthy, and his name a weighty one. That the witness understood this was for Sherrod's protection. When the witness wanted bills. made in this way, he usually called on any of the directors he first met to draw and indorse the bills, but as the plaintiff was to indorse all the paper, they were carried to him last. The bills in this case were made in the usual way, before stated, and were negotiated for the joint benefit of the company. It was the understanding, and there were resolutions of the company to that effect, that the parties on the bills were not to pay them, but they were to be paid by the company. The bills in this case were not paid by the company, but by the plaintiff, with the exception of the credits indorsed on one of them. |