Indeed, a surrender to answer the judgment of the court, is not by the terms of §13435-23, GC, a cause for granting remission, but is only a condition upon which the relief may be awarded.
It is readily conceivable that there might be presented upon an application, facts which would show such a situation, as a refusal to remit, would constitute an abuse of discretion, but no such facts are present here.
The gist of the argument in behalf of plaintiffs in error, apart from treating what was done toward capturing Hand, is that the effect of the enforcement of the judgment would be to enrich the treasury of the county almost twenty four thousand dollars, and hence that reimbursement of the county, of' its actual outlay, should be the limit of the enforcement of the bond.
The answer to that argument is that the enrichment is but an incident to the obligation to pay the penalty in the event the recognizance shall become forfeited, and that neither the statute providing for the recognizance, nor §13435-23, GC, contains words of limitation to that effect.
The application and the proof in the court below presented an issue of mixed fact and law to be determined by that court, and, due consideration of the evidence, forbids a holding by this court that in the decision that court abused its discretion, and such would be our decision if the matter of in* demnity were not in the case.
To hold that the court below must have granted relief to the applicants, would be to decide that §13435-23, GC, confers the mandatory duty to remit instead of a discretionary duty in that respect. The section is barren of words which .could possibly have that meaning, and there is a vast multitude^ of cases holding that the common law as well as the statutes in duplication thereof, make the matter one of judicial discretion. And we know of no case or text book, in conflict with that multitude.
What our holding would be if a remission had been made, and the order making it were before us for review, we do not intimate. .
This record shows ho error, and the judgment will be affirmed.
JUSTICE, J, concurs.