Where the bond does not agree with its description in the declaration, semble an amendment should be allowed.
PER CURIAM.
The condition is no part of the obligation. It is inserted for the benefit of the obligor, to exempt him from the payment of the penalty if he chooses to comply therewith; but he has his option not to perform the condition, and to forfeit the bond if he is so disposed. Consequently the bond produced, which is for 625, does not agree with the bond set forth in the declaration; but as it has been a practice, agreed upon by the bar, to suffer an alteration in the writ when issued by the clerk, as this was, where he has committed a mistake, we will now recommend to the opposite attorney to consent to the alteration. However, he would not consent to the alteration at present, but agreed it should be made at any time after this day. Whereupon, by consent, a juror was withdrawn.
See Anonymous, post, 401, and Cowper v. Edwards, ante, 19.
(216)