The two first assignments of error question the regularity of the judgment because an alias sci.fa. was not issued against those defendants not served with process, and without formal discontinuance against them in the judgment. This proceeding is a civil action, and to be governed by the same rules, and there was therefore an undoubted right on the part of the State to discontinue as to those on whom the writ was not served,and proceed to judgment against the others. [Aik. Dig. 267, §56.] We are of opiniop that it is not necessary to enter a formal discontinuance of the action as to those on whom service of the process has not been effected. By taking judgment against the others, the cause is in fact and in law,discontinued as to them, and it could subserve no purpose whatever formally to enter the fact on the minutes of the Court. [See Oliver v. Hutto, at the present term.]
We think it sufficiently appears in the judgment nisi that the recognizance was forfeited — it is stated that the defendant being solemnly called to appear and answer the charge against him, came not, but made default — it was not necessary to call the sureties to produce their principal; their undertaking was for his appearance to answer the charge against him, and on his failing to appear the recognizance was forfeited.
The case of Howie v. Morrison, [1 Ala. Rep. 120,] shows that where a judgment is rendered on a forfeited recognizance it must follow the condition. The condition of this recognizance is, that the principal is bound in the sum of three hundred dollars, and the sureties jointly in the same sum, to be levied separately of their respective goods and chattels. The judgment is joint against the sureties, and therefore follows the condition of the recognizance, it would have been a departure from the condition, to have joined the principal in the same judgment.
In rendering judgment for a larger sum than the penalty of the bond, the Court erred. There is a considerable conflict of' *674authority on this point, and there may possibly exist cases in which the principal may be bound beyond the penalty of his bond, but if such be the law in regard to the principal, it cannot apply to a surety, as is explicitly admitted in the cases in which the principal was held to be thus bound. The judgment in this case, going beyond the penalty, must be reversed and here rendered for the penalty.