Opinion of the Court by

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 *422or 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.

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