delivered the opinion of the court.
The state is appellant from a judgment which rejects its claim to the penalty of a recognizance, for the appearance of a person charged with an indictable offence.
^Forfeitedpenered ón motion ^¡dit^of any pleading. Where a surrender is made ¡jf^Ae custody of the law, even after forfeiture hasbeen entered, aYa¡is itseif 0f it crimtoSnSiebaU are entitled to be ^whin*’ the anda¿quittedhet°re judgment tor recovery-0f the forfeited to^pp^at the firstterm.the charged.The record shows, the accused and her bail were called, and did not appear; that the court extended the time for bringing the body of the defendant, till the first day of the ensuing term; that during that time, the principal was surrendered, tried and acquitted.
Errors in the rendition of the judgment are assigned, as follows :
1. The surrender was made after the expiration of the time allowed at common law, to the bail, to claim an exoneratur.
2. During the pending of the proceedings, by notice on the part of the state, for the recovery of the penalty, and after the contestatio litis was formed, the court was without' authority to entertain a motion to discharge the bail.
3. The bail was discharged on motion, and without issue joined, while the state, having acquired a right to the penalty, was entitled to all the advantages of a party litigant in a court of justice. J
. 4. After a forfeiture has been duly entered, it cannot be set aside in any other manner, than according to the act of icio
5. Admitting that the court had the right of extending the time for the surrender of the principal, the bail could not avail themselves of the extension after the period was expired:
It has appeared to us, the District Court did not err. Forfeited penalties are recovered on motion, without the formality of any pleading. The surrender of the accused J 1 i* m i • ij» • ¶ having been made, the state having availed itself of it by trying the defendant, who was acquitted, and this being shown before judgment was awarded for the state, the bail were entitled to their discharge.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be aifirmed.