#### Commonwealth *v.*Rhoads.

Under the act of 1783, a writ of error and not an appeal lies to a judgment of the Common Pleas on a forfeited recognisance. The appeal provided by that act, lies only to the orders of the court on applications to remit or moderate the forfeiture. Hence an appeal taken from the judgment, assigning errors in the proceedings, and also that the court should have remitted the forfeiture where the record did not show such an application was made to the court below, was quashed.

Appeal from the Common Pleas of Philadelphia.

*Jan.*IT. This was an action of debt brought to December Term, 1845, on a recognisance of bail taken by the Recorder of the city of Philadelphia, in July, 1845, to answer in the Quarter Sessions a charge of a conspiracy to cheat and defraud; which recognisance had been forfeited by non-appearance. Judgment on the verdict was entered in June, 1846, and this appeal taken. Reside the errors assigned in the record and bill of exceptions, there were two, alleging the judgment to have been immoderate, under the circumstances of the case, and that the court below should have remitted the recognisance. But it did not appear, from'the record, that any application to remit had been made in the court below.

*B. Ingersoll*

now moved to quash the appeal, because it was taken to the proceedings at law, on the recognisance, the remedy being by writ of error.

*V. L.*Bradford, contra

By the act of 1T83, these recognisances are to be sued in the Common Pleas; and that court and the Quarter Sessions are empowered to order the recognisances to be levied, moderated, or remitted, in their discretion; with a proviso, allowing- appeals to this court, “ from such orders and judgments.” The statute, therefore, points out the remedy, which we are not at liberty to depart from.

*Jan.*27.

Gibson, C. J.

There is no such thing as an appeal from a judgment in an action, according to the course of the common law, which is not given by statute; and this appeal has brought up the record of an action of debt for the penalty of a recognisance forfeited in the Quarter Sessions, and sued in the Common Pleas. The appellant relies on the second section of the act of 1T83, which declares such recognisances to he recoverable in the Common Pleas; “which courts” (the Common Pleas and Quarter Sessions) “may, and are hereby empowered to, order the said recognisance to be *489levied, moderated, or remitted, on hearing the facts and circumstances of the case, according to equity and their legal discretion.” Perhaps either court may entertain the petition, but not at the trial. The abatement or remission of the penalty would have been more appropriately the act of the court in which the recognisance was forfeited; but the statute is peremptory. But from the order of either court there is an appeal. When that has been disposed of, or when the time has elapsed without an appeal, the recognisance may be sued in the Common Pleas for the sum fixed by the order, or for the amount of the penalty. At the date of the statute, an action of debt could be brought only for a specific sum, and that sum was consequently intended to be liquidated, where there was a petition to remit or abate, before the impetration of the writ. The petitioner, or perhaps the commonwealth, has an appeal to the Supreme Court from the order; but if he file no petition, or do not appeal in time, he waives his right, and the attorney-general, or the proper officer of the county, may proceed. If action be brought pending the appeal, its pendency may be pleaded in abatement of the writ. This course is plain, simple, and consistent; while it would be impossible, without inextricable confusion, to jumble together the petition to abate or remit, and the common-law proceeding by action for the entire penalty.

Appeal quashed.