Daniel Shay was convicted in justice’s court and was sentenced to pay a fine of $50, besides the costs of prosecution, taxed at $12.50, within twenty-four hours, or in default of such payment that he be imprisoned, etc. Shay appealed to the circuit court. . The usual recognizance was given on such appeal. Default having been made in the circuit, this action was brought on the recognizance, and Carroll, one of the sureties, defends upon the ground that the judgment of the justice was not authorized by the statute, and could not be the foundation even of a valid bond on appeal. The judgment of the justice was clearly void under the decision in Brownbridge v. People 38 Mich. 753, and we think the same may be taken advantage of in the present case. The recognizance given under such circumstances cannot be said to have been given voluntarily, and it might be dangerous to hold that the giving of a recognizance, as in this case, would estop the surety from showing that no valid judgment was in force under which the respondent could have been subjected to the payment of a fine or imprisonment.
We think the ruling was correct and that the judgment must be affirmed.