John A. Wilcox and others v. The State, 24 Tex. 544

Roberts, J. It is objected, that the recognisance in this case is more onerous than the law requires. • It is presumed/ that reference is made to the terms of the recognisance, which requires the defendant to appear from day to day, and from term to term. The bail bond prescribed in the statute required the defendant to appear at the “ next term, then and there .to answer the charges exhibited against him, and that he will not depart therefrom, without the leave of the court.” (Hart. Dig., Art. 2889.) The object of this was to secure his appearance in.court.

The court could then, if the case was not tried, require him to enter into a recognisance, to appear from term to term, as was done in this case. And such was, as it is believed, the correct practice, under the statute referred to. The terms, that' he shall “ abide such judgment, sentence, or decree as may be rendered against him in said cause,” are simply to insure his attendance upon the court, so as to submit himself to its final judgment. It is objected that defendant was indicted by the name of -Mann, and entered into a recognisance by the name of H. A. Mann.

This variance was pleaded on the trial, and the issue was submitted to the jury, whether or not the person indicted was the person recognised; and they found that he was the same. The defendants presented this issue, and it was found against them, and no error is perceived in the action of the court in reference to it. It is contended, that the judgment is erroneous, because it is rendered generally against the administrator and administratrix of the estate of one of the securities. The court does not order execution to issue against any of the defendants, or otherwise direct the mode of its enforcement.

As to the administrator and administratrix, this is in violation of the statute which requires that the judgment “ shall be paid in the due course of administration,” and that no execution shall issue thereon against them. (O. & W. Dig. 130, "Art. 503.) The judgment will therefore be reversed and rendered in this court in proper form. Reversed and rendered.