The British cases are not conclusively applicable to questions like the present. In the king’s bench, the bail are relieved on payment of the sum sworn to; while in the common pleas, their responsibility was, till lately, commensurate with the recognizance. The subject being within the equitable discretion of the court, is disposed of there, and might be so here, by rules of practice. But neither there nor here, has the plaintiff been restrained to less than the penalty, when the amount of the bail had been fixed by the court. It was not so fixed here; but, what is the same, it was fixed by the parties themselves. Even were that not so, as we have no rule of practice on the subject, the recognizance must be suffered to have its common law effect. And further, it is pretty clear that if the court had blundered in exercising its equitable power of summary relief, there could be'no redress by writ of error.
It is said the court gave judgment for more than the recognizance, as the sum recovered in the original action, with the costs of both actions, is of greater amount. But the judgment is expressly for the penalty, which is the debt at law, and cannot be exceeded. The condition of the release is for the ease of the bail and at his option. Where it happens, as here, to give him no advantage, it does him no prejudice, as it does not bar him from discharging himself by payment of the penalty. By the terms of the recognizance, he might possibly have been released by payment of less; but he could not be called on for more.
Judgment affirmed.