
    James M. Smith, governor, plaintiff in error, vs. N. J. Craig et al., defendants in error.
    1. Defendants in error signed a recognizance for the appearance of the defendant, in the usual form. He appeared, and was found guilty and sentenced. At the same term of the court he moved for a new ■ trial, and the motion being overruled he brought the case to this court by bill of exceptions, and superseded the sentence or judgment of the court below by giving new bond to appear and abide the final judgment in the superior court. This court affirmed the judgment refusing the new trial. On the return of the remittitur affirming the judgment, the defendant did not appear to answer final judgment in the superior court; whereupon scire facias was regularly issued against the sureties on the first bond ; they failed to answer, and their recognizance was forfeited. At a subsequent term, within the statute óf limitations, a motion was made to set aside this judgment of forfeiture, and was granted ; and the state excepted to the latter (judgment and brought the case here.
    
      
      Held, that the supersedeas bond transferred the custody of the prisoner from his bail on the first bond to his bail on the supersedeas bond, and therefore the forfeiture of the first recognizance was illegal.
    2. Though the securities did. not appear and answer the scire facias, yet as all the facts before recited were of record, and made one record of the entire case, the court was bound to inspect it before granting the judgment of forfeiture ; and that judgment appearing on the face of the record to be illegal, the motion to set it aside was properly made and granted. See 56 Oa., 589.
   Jackson, Judge.  