TOLISON vs. THE STATE

TOLISON vs. THE STATE. [PROCEEDINGS ON ¡FORFEITED RECOGNIZANCE.] 1. Sufficient*) of recognizance in description of offense ancl defendant’s name. Where tlie indictment charges the offense of living- in adultery or fornication, and describes the defendant’s name as Caroline T.; while the recognizance is signed by Lucinda Katharine T., and is conditioned for her appearance at the next term of the court, “ to answer' to an indictment pending in said court against her, for the offense of adultery and fornication”; and the recitals of the judgment nisi state, that it appeared to the satisfaction of the court that the said Caroline T. “signed her bond by the name of Lucinda Kathwine I”, — there is no variance or misdescription which is available to the recognizors, either on error, or on motion to set aside the final judgment in the court below. 8. “Stay-lmv" of 1861 construed, as to rendition of judgment against soldiers. — Under tlie 9th. section of the act “ to regulate judicial proceedings,” approved Decenfber 10, 1861, (Session Acts 1861, p, 36,) which forbids the rendition of judgment “ against any citizen or resident of this State, who is, or shall be, a volunteer in the actual military service of this State or the Confederate States, so long as he continues in such military service as a volunteer,” — a surety on a forfeited recognizance cannot have the final judgment amended mmcpro tunc, so as to discharge him, by proving that, prior to the term at which it was ren* dored, “he had enlisted and entered into the sendee of the Confederate States, and was in aetual service at the rendition of the judgment.” Appeal from tbe Circuit Court of Bandolph. Tried before tbe Hon. John T. Heflin. The. bill of exceptions in tbis case shows tbe following facts: At tbe spring term, 1860, of said circuit court, an indictment was found against Abner Nixon and Caroline Tolison, charging that they “lived together in a state of adultery or fornication.” Tbe defendant Tolison having been arrested, tbe sheriff took from her a recognizance, which was dated tbe 4th September, 1861; was signed by Lucinda Katharine Tolison, B. C. Harris, and B. G. Gibbs; and was conditioned that “tbe said Lucinda Katharine appear at tbe next term of tbe circuit court of Bandolph county, and from term to term thereafter until discharged by law, to answer to an indictment, pending in said court against her, for the offense of adultery and fornication.” At the spring term, 1861, the defendant having failed to appear, the following judgment nisi was rendered: Indictment for adultery and fornication. It appearing to the satisfaction of the court, that Caroline Toli-son, who has signed her bond as “The State vs. Abner Nixon, and Caroline Tolison. Lucinda Katharine, B. C. Harris, and Bansom Gibbs, agreed to pay the State of Alabama two hundred dollars, unless the said Tolison appeared at this term of the court to answer in this ease; and the said Caroline Tolison having faded to appear, — it is therefore considered by the court, that the State of Alabama, for the use of Bandolph county, recover of the said Caroline Tolison, B. C. Harris, and Hansom Gibbs, the said sum of two hundred dollars, unless they appear at the nest term of this court, and show cause why this judgment should not be made absolute.” On this judgment a scire facias was issued, which was directed to “Cornelia Tolison, (who signed her bond as Lucinda Katharine Tolison,) B,. C. Harris, and B. G. Gibbs,’ ’ and was otherwise in the usual form. The scire facias haying been duly executed and returned, and the defendants haying faded to appear and show cause, the judgment against them was made absolute at the February term, 1862; the principal defendant being described as Caroline Tolison, “ who signed her bond as Lucinda Katharine To-lison.” At the March term, 1863, the defendants appeared, “and moved the court to vacate and set aside the final judgment rendered against them at the last term, and also to vacate and set aside the judgment nisi rendered against them at a previous term, and to render said judgments at this term, nunc pro tunc, as of the terms at which they were respectively rendered; and thereupon the defendants showed to the court, by the record, and by other legal proper evidence,” &e., stating all the proceedings had in the cause, as above recited, “ and that said R. G. Gibbs, previous to the term to which said scire facias was returnable, had enlisted and entered into the service of the Confederate States of America, and was in actual service at the rendition of the judgment final.” “Upon this evidence, the court overruled the motion, and each part thereof, on the ground that any errors apparent in the proceedings are not clerical, and, therefore, are not amendable in this court at this term”; to which ruling of the court the defendants excepted. The appeal is sued out by B. 0. Harris, and errors are assigned by him jointly with L. K. Tolison. The errors assigned are, the rendition of the judgment nisi, the rendition of the judgment absolute, the refusal to set aside each of those judgments, and the refusal to amend the final judgment “so as to make it conform to the evidence.” J.-Falkner, for the appellants, cited Browder v. The State, 9 Ala. 58; Badger & Glayton v. The State, 6 Ala. 21; Howie & Morrison v. The State, 1 Ala. 113; Hall v. The State, 9 Ala. 827 ; Code, §§ 2401, 2406; Session Acts, 1861, p. 36, § 9. _M. A. Baldwin, Attorney-General, contra, cited Eldred v. Tlie State, 31 Ala. 393; Yasser v. The State, 32 Ala. 586 ; Welch v. The State, 36 Ala.'277. [MAJORITY — STONE, J.] STONE, J. In tbe proceedings bad in tbis canse, up to tbe rendition of judgment final on tbe bail bond, we find no error wbicb is available to appellants. — See State v. Eldred, 31 Ala. 393; Vasser v. The State, 32 Ala. 586; Welch v. The State, 36 Ala. 377. Tbe appellants contend, that tbe judgment should bave been amended nunc pro tunc, so as to discharge B. G. Gibbs from its operation, under tbe 9fch section of tbe act “to regulate judicial proceedings,” approved December .10th, 1861. — Pampb. Acts, 36. Without noticing tbe question of tbe legality of tbe evidence, under wbicb tbe amendment was claimed, or any other point except what is after stated, we think tbe applicant failed to bring bis case within tbe operation of tbe statute, and tbe court did not err in overruling bis motion. Tbe language of tbe statute is, “ That no judgment shall be rendered (except in attachment cases already commenced), against any citizen or resident of tbis State, who is, or shall be, a volunteer in the actual military service/)f tbis State, or of tbe Confederate States, so long as be continues in such military service as a volunteer,” &c. Tbe only facts pertinent to tbis question, on wbicb tbe amendment was claimed, are thus stated in tbe bill of exceptions : “ And that previous to tbe term of tbe court to wbicb it was returnable, tbe said B. G. Gibbs bad enlisted and entered into tbe service of tbe Confederate States of America, and was in actual service at tbe rendition of tbe judgment final.” Tbe judgment of tbe circuit court is affirmed.