John Barringer v. The State, 27 Tex. 553

Moore, J. The scire facias in this case should have been quashed, and the judgment nisi set aside, because they essentially vary from the terms of the bond upon which they are founded. The appellant is, by the bond, only bound in the penal sum of five hundred dollars, yet the judgment nisi against him is for the sum of one thousand dollars. The scire facias and judgment nisi recite a bond with altogether different conditions from that executed by the appellant. The motion to quash the bond should, also, have been sustained. It does not conform to the order of the committing court.

The sheriff had no authority to demand of Kesler a bond, except by the order of the justice of the peace by whom the charge against him had been judicially examined. By this he and his surety were -only required to enter into a bond in the penalty of five hundred -dollars, for his appearance at the ensuing term of the District Court of Victoria county, to answer any indictment that might, be found upon the charge preferred against him.

The bond exacted by the sheriff from the principal and his surety, was not jointly and severally in the penalty of five hundred dollars; but from each of them severally for the amount of five hundred dollars, thus making the bond for double the penalty fixed by the justice of the peace. The bond taken was, therefore, different from that which the sheriff was authorized to demand. It is more onerous in its terms than he could legally have required, therefore void.

The judgment is reversed, and, it appearing that the bond upon which it was rendered is illegal, and not such as was authorized by the order of the justice of the peace under whose authority it was taken, it is ordered to be quashed. Reversed and rendered.