
    William Bridge versus John Ford, Jun.
    In debt upon a recognizance to a party taken before a justice of the peace, conditioned for prosecuting an appeal, it must be shown that the justice had jurisdiction of the action, and that the recognizance has been entered of record in the Common Pleas ; and the condition must be set forth, and the breach alleged.
    This was an action of debt, brought upon a recognizance taken before a justice of the peace. The declaration contained two counts. The first alleged that the defendant, at a day therein mentioned, acknowledged, before the justice, that he was indebted to the plaintiff in the sum of fifty dollars, to be paid on demand ; and that an action had accrued to the plaintiff, to demand and recover the same. The second count stated that on the same day, before the same justice, the defendant appeared, and entered into a recognizance, a copy of which the plaintiff brings into Court, wherein and [ * 642 ] whereby the * defendant acknowledged himself to be indebted to the plaintiff in another sum of fifty dollars, to be levied upon his goods and chattels, lands and tenements, and in want thereof upon his body, to the use of the plaintiff; and that an action had accrued to the plaintiff, to demand and recover the said last-mentioned sum ; yet though requested, &c.
    The defendant prays oyer of the recognizance, and of the condition thereof, which latter is “ such that if the said James Bowers, a minor, shall, at the Court of Common Pleas for the county of Middle-sex, which is to be holden, &c., prosecute with effect an appeal by him made from a judgment obtained against him by the said William Bridge, at a justice’s court which was holden before me at, &c., on the day and year aforesaid, then the above-written recognizance to be void, and of no effect; otherwise to abide in full force and virtue.”
    The defendant then demurs to the declaration, and assigns the following causes of demurrer: —
    1. That it does not appear, by the declaration aforesaid, that the judgment appealed from has ever been affirmed by the Court of Common Pleas, or any complaint made by the said Bridge to the said Court against the said Bowers, for not entering his appeal.
    2. That it does not appear, by any averment in the said declaration, that there is any record of any such recognizance before the said justice.
    3. That the plaintiff, having declared upon a supposed debt arising solely upon a recognizance, ought not to have concluded with an averment that “ an action has accrued,” &c.
    The demurrer being joined by the plaintiff, the cause was argued by Stearns in support of the demurrer, and Jos. Locke for the plaintiff; and the action being continued nisi for advisement, the opinion of the Court was delivered in Boston, at the succeeding March term, by
   Parsons, C. J.

We are satisfied that this declaration is bad for several reasons.

1. It does not appear from any part of the record, of which the recognizance is now a part, that the justice had any jurisdiction in the cause therein referred to. We cannot conjecture * in what manner the process was instituted, or what was [ * 643 ] the cause of it, or whether it was a cause within the jurisdiction of a justice of the peace. And we cannot presume any thing in favor of the jurisdiction of an inferior magistrate, as it is not general, but given and limited by particular statutes. In the condition of the recognizance, the justice ought to have recited so much of the cause, that it might appear that he had legal cognizance of it. If it were not within his jurisdiction, the proceedings, as well as the recognizance, are void.

2. The recognizance does not appear to have been delivered to, and entered of record in the Common Pleas. Debt, as well as scire facias, will lie on a recognizance to a party; but this recognizance must be matter of record, and in debt upon it, the defendant may plead nul tiel record. Whenever, therefore, a justicie recognizes a party to appear at any court of record, it is his duty to transmit the recognizance to that court, that it may be entered of record.

3. There is a material variation between the declaration and the recognizance, as it appears to be acknowledged on a condition which is totally omitted in the counts. If this can be got over, as variance is not assigned for cause of demurrer, yet the declaration is substantially bad, for oyer of the recognizance being had, and it being spread on the record, it must now be taken as part of the plaintiff’s second count. The debt is then acknowledged on condition, and (unlike the case of a bond in pais upon condition) no debt is due until the condition is broken. But the breach of the condition is nowhere alleged. In 2 L. Raym. 1256, there is a precedent of debt on a recognizance of bail, and many other precedents of the like action are given and referred to in 7 Wentworth’s Pleadings, 54—88. In all, the recognizance is alleged, either to be taken by a court of record, or to be delivered to the court and recorded. In all, the condition is set oút, and a breach of it alleged. In a recognizance to the party, it may not be necessary that the breach of the condition be a matter of record, as it is when the recognizance is to the commonwealth, who can take only by record.

In this latter case, it is usual to call a party recognized to [*644] appear, * and to enter his default on the record. But this last point it is unnecessary to decide.

The condition of the recognizance is no part of the first count; but it is clear that an action of debt does not lie on any acknowledgment of a debt taken before a justice of the peace.

It appears to the Court that the declaration is bad, and insufficient in law for the plaintiff to maintain this action; and the defendant must have judgment for his costs.  