
    The Commonwealth v. William Sherrit.
    Bail — Recognizance—Forfeiture—Motion to Vacate Order — Time to Make.
    A motion to vacate an order forfeiting a recognizance must be made at the same term at which such order is made.
    Same — Remission—Accused Must be in Custody.
    The accused must be in the custody of the court before a remission will be made on a forfeited recognizance.
    APPEAL FROM BOYD CIRCUIT COURT.
    December 7, 1869.
   Opinion of the Court by

Judge Robertson:

The appellee, William Sherrit, as surety in the recognizance for the appearance of Frank Sherrit at the October term, 1868. might, by motion, have been entitled to a vacation of the payment of the forfeiture had he filed his affidavit during that term, but, at the subsequent term when he made the application, the court had no jurisdiction except that of discretionary remission given by the 94th section of the Criminal Code which requires that before such remission, the accused shall, by voluntary surrender or otherwise, be in the custody of the court. Consequently, as the record does not show this indisputable prerequisite, the judgment of remission was unauthorized and erroneous. Commonwealth vs. Rowland, 4th Met.

Attorney General, for appellant.

Wherefore, the judgment is reversed and the cause remanded for a judgment consistent with this opinion.  