In this case which was commenced before a justice by warrant, the justice rendered a judgment, after four days’ adjournment from the hearing, in favor of defendant. Plaintiff appealed, and the circuit court of Shiawassee county dismissed the appeal on the ground that the defendant was in custody at the time of hearing, and that the justice was bound to render judgment at once, and lost jurisdiction by the adjournment. Comp. L., § 5380.

Assuming it to be true — which we do not now feel warranted in holding without further consideration — that if the. defendant had been in actual custody at the hearing the delay *177in judgment would have prevented an appeal, we do not think it appears he was in such custody, and as no return was procured from the justice to show how the fact was, it is too late now to assume anything not appearing in derogation of the justice’s action. It cannot be assumed the justice exceeded his jurisdiction, where he gave judgment within the time proper in ordinary cases. If he -did, there should have been an application to compel a further return.

The record shows that the suit was begun by warrant under which defendant was brought into court November 17, 1879. The cause was adjourned by consent after pleading, until November 21. On that day a written stipulation was made, signed by the attorneys of both parties, which provided that the cause “ is hereby adjourned to November 25th, A. D. 1879, at 10 o’clock a. m., without the appearance of either party, at which time it is hereby agreed that the case shall be tried.” The return shows the parties appeared at the hearing by attorney. It is fairly to be presumed there was no personal appearance, and if so the rule as to the course to be taken on defendants being in custody could hardly apply, unless in some manner the fact was brought to the attention of the justice. It does not appear that any one objected to the adjournment.

We think therefore that the appeal was valid and should not have been dismissed. '

The judgment of dismissal must be reversed with costs and the cause remanded for hearing.