delivered the opinion of the court:
To a scire facias on a forfeited recognizance for the appearance of Willis Field to answer an indictment against him, the appellees, proceeded against as his sureties, answered that, on the day fixed for his appearance, he, being a soldier in the Federal army, at a remote distance from the court, was refused a furlough, which he solicited, to enable him to attend in discharge of his recognizance, which he would have done had he not been thus prevented, without his fault and against his will. This, if true, was a sufficient defense — and was sustained by his own testimony, which was excepted to as incompetent. But he acknowledged a new recognizance in court, and, thereupon, the court, in the exercise of a sound discretion, delegated by the Criminal Code, remitted the forfeiture and dismissed the scire facias.
In that judgment we perceive no abuse of a sound judicial discretion^. On the contrary, it appears to have been properly exercised in harmony with the legislative purpose of conferring it; for if, as a witness on the trial, he was incompetent, the facts which he verified might, nevertheless, be heard as an ex parte affidavit on his own motion for remission, and, in that aspect, were entitled to some consideration — and his new
Wherefore, the judgment is affirmed.