¶1During the same term of court that the judgment of forfeiture was entered, the plaintiff in error appeared and moved the court to vacate the same, on the ground that he was sick and unable to attend the court on the day the forfeiture was had. The affidavit of the plaintiff in error, read in support of the motion, recites that Chase, on the 20th of December, was sick and confined to his bed ; was wholly unable to appear at court in person, owing to such sickness ; that he did not intentionally take or use any medicine or other thing, or use other means to make himself sick or less able to attend court' on that or any other day. This affidavit is strengthened by that of Dr. Justice, who states that, on the day above mentioned, he paid Chase a professional visit, that he found him sick in bed and that he believes, from his professional knowledge, that the plaintiff in error was wholly unable to attend said court, or to leave his bed a sufficient time to be taken there.
¶2When it is made to appear to the court by competent evi*484dence that the recognizor was disabled from attending court by reason of sickness, and that snch sickness was not the result of any fault or misconduct on his part, he should not be punished for his misfortune, especially as, by his appearance afterward, the ends of justice will be answered, and where the court is convinced of the existence of such an excuse, the judgment of forfeiture should be set aside.
¶3There are a number of respectable authorities which hold that sickness, of a character to prevent attendance in court, and existing without fault on the part of the recognizor, is a good defense to a scire facias on a recognizance. People v. Tubbs, 37 N. Y. 586; People v. Manning, 8 Cow. 297; Co. Litt. 206, a; see also Commonwealth v. Craig, 6 Rand. 732.
¶4It seems to us that the court should have set aside the forfeiture on the showing made and upon payment of costs.
¶5Judgment reversed and cause remanded, with directions to set aside judgment of forfeiture upon the payment of costs by plaintiff in error.
¶6Reversed.