43 Mich. 226 | Mich. | 1880
Lead Opinion
The writ of error in this case should have been sued out in the name of both the defendants below; and a severance effected afterwards under the rules.
Opinion on Motion to Strike
Motion to strike out bill of exceptions.
Motion to strike out bill of exceptions on the ground that the exceptions were not settled during the term at which the trial took place, nor was any order made during the term extending the time for the settlement of exceptions.
It is conceded that no order appears extending the time for settlement of exceptions, but it was shown in the court below that the judge made an oral order giving time, which the clerk neglected to enter: thereupon at a subsequent term the judge made an order nunc pro tunc, as of the proper time, giving time for the purpose. We think this was a proper method of correcting the neglect of the clerk, and that the judge had full power to do what he did.
We deem it proper also to note the fact that a motion was made on the first day of this term to dismiss the writ of error. All objections to the record as it then stood in this court ought to have been made at that time: it is not advisable to take up objections separately on distinct motions and on different days.
Plaintiff in error was sued upon a recognizance of bail. He pleaded the general issue and
The court instructed the jury that the recognizance taken and acknowledged before the county clerk was prima facie evidence against the defendant, and-that the burthen of proof was upon the defendant to show that the clerk’s certificate thereon was false, and that “notwithstanding the defendant swears that the instrument is a forgery, the certificate of the county clerk, being in due form and by the proper officer, in the absence of fraud and conspiracy, is entitled to more weight than the unsupported oath of the defendant.” This was excepted to and is assigned as error.
We are of opinion that the court erred in thus instructing the jury. The recognizance and certificate of the clerk thereto did not import absolute verity, and could not be considered as a record made in open court. Under the issue in this case the defendant was at liberty to impeach it, and having introduced testimony having that tendency, it became a question of fact for the jury. It was their province to pass upon the testimony, and to determine therefrom whether the defendant had executed the recognizance. They might have considered the official certificate of the clerk the better evidence, but the court could not properly instruct them that it was such as matter of law.
The judgment must be reversed with costs.and anew trial ordered.
