39 Mich. 259 | Mich. | 1878
Suit was commenced upon a forfeited recognizance.
Upon the trial objections were made that there was a variance between the allegations in the declaration and the recognizance offered in evidence, and that the latter was fatally uncertain and defective.
In the declaration Gordon was charged with having, at a time and place mentioned, “feloniously and burglariously broken and entered” with intent, etc., while the language of the recognizance was- that he “did break and enter.” These objections were not well taken. The recitals in substance are alike, and the charge as set forth .in the recognizance was sufficiently certain and accurate. Daniels v. People, 6 Mich., 385.
The recognizance required the respondent to appear in court at a time certain to proceed with the examination, to appear in said court from day to day, as ordered by the court and to not depart without leave.
As we understand counsel it is not claimed that such a condition was improper or invalid, or that respondent would not be bound to appear from day to day during the examination. The claim made is that such a condition could not be so construed as to require the respondent to appear at some future day to which the examination might be adjourned; that there is a difference between formal adjournments for one or more days, and an examination carried on and continued from day to day.
Any magistrate, for an offense not cognizable by a justice of the peace, may adjourn an examination pending before himself, from time to time, as may be necessary, without the consent of the person charged, and to the same or a different place in the county, as he shall
Another objection was urged, viz.: that there was no record evidence that default had been made.
It appeared that the police justice, at the time the case was called and the accused failed to appear, made upon the' files in the case, a minute of that fact, also that the recognizance was forfeited and a re-arrest ordered. From the notes so made, it was the duty of the clerk of the police court to make up the record, which in this case was not properly done at the time.
The default and forfeiture were complete when the
The judgment must be reversed and a judgment rendered in favor of the People for the amount of the recognizance with costs.