Proceedings on forfeiture of bail.
(after stating the facts). The proceedings, as regard form, appear to have been substantially in accordance with the statute on the subject, and that provides that the bail bond endorsed by the justice of the peace as “forfeited,” and filed with the clerk of the circuit court, is a sufficient basis upon which the latter may issue his summons to the bondsmen in pursuance of the other section of the statute cited above. The objection that there was no complaint in the circuit court upon which the summons should issue is not well founded.
When forfeitnre set aside.
If the allegations of the answer were true, the appellant had a good defense. Therefore he should have been permitted to show by his witnesses, which he offered to do, that the allegations of his answer were true. The court, however, over his objections, excluded this testimony, and in that erred, and fatally so.
This case is nearly on all fours with the case of Flynn v. State, 42 Ark. 315, the only difference being, so far as we can discern, that in the latter case the defendant Flynn actually appeared at the justice’s office, and, on account of the press of business, the case could not be heard on that day, and another time for hearing was set, but of which the justice failed to notify the defendant, and the forfeiture was taken, notwithstanding this want of notice; whereas, in the present case, while the defendant did not actually appear, according to the very letter of her bond, yet her attorney and representative was present all the day, and the defendant was close at hand to appear whenever called. It follows that, in order to make the difference material, we would necessarily hold that the defendant, Burns, having failed to go through with the useless and reasonless performance of remaining all day personally present at the door of the closed office, was therefore guilty of a breach of her bond. We think that would be a too rigid construction of her obligation, in view of the explanatory circumstances offered to be shown as really existing at the time.
Reversed and remanded, with instructions to proceed according to this opinion.