91 Ill. 590 | Ill. | 1878
The majority of the court are of opinion that this judgment should be affirmed.
It is first insisted that this recognizance is not conditioned as required by the statute. We are of opinion that it is unnecessary to the validity of a recognizance, that it should contain every condition which is provided in the statute. It is good for the conditions found in the statute, that are also embodied in the recognizance.
Under the former statute on the subject of recognizances it was held by this court, that bail, entering into a recognizance for an offender conditioned that he should appear at a given term of the court to answer a given' charge, and not depart the court without leave, took upon himself an obligation that the accused would attend from time to time, and from term to term, until the final order of the court, as long as the case was continued from term to term. The present statute requires no more. The statute simply states, more in detail, the legal effect which was declared by this court to attach to recognizances in the form in use before the passage of «the act of 1874. (Gallagher v. The People, 88 Ill. 335.)
The recognizance in this case contains a condition that the accused shall personally be and appear before the court on the 1st day of the March term, 1875, and then and there answer, etc., and abide the order of said court, etc.
Adopting the line of construction in this case which was adopted by this court in Norfolk v. The People, 43 Ill. 9, and in Stokes v. The People, 63 Ill. 489, we are of opinion that the language of this recognizance is sufficiently broad to require the appearance of the accused from time to time, and from term to term, so long as the proceeding in which he was charged was continued.
We have held that a recognizance of this character imposes that obligation under the statute of 1874. We must, therefore, hold the scire facias in this case to be sufficient.
We also think that the appellant failed to show due diligence in presenting his defence in the court below, and therefore was not entitled to have the judgment by default upon the scire facias set aside upon his motion. The setting aside of a default is a matter within the discretion of the circuit court, and unless it appears affirmatively that that discretion has been abused, this court will not disturb its determination.
Judgment affirmed.