
    William Bridge versus John Ford, Jun.
    In an action of debt on a recognizance taken by a justice of the peace, conditioned to prosecute an appeal from his judgment to the Common Pleas, it must be alleged that the recognizance was returned to, and made a record of that court
    In this action of debt upon a recognizance entered into before a justice of the peace, and of which a partial report was made, (vol. 4, page 641,) the plaintiff had leave, by consent, to amend by filing any new counts, the defendant waiving his demurrer. [ * 210 ] * The plaintiff accordingly filed three new counts In the first he recites, that, pursuant to a law of the commonwealth, passed March 4, 1790, entitled “An act to regulate the catching of salmon, shad, and alewives, and to prevent obstructions in Merrimack river, and in other rivers and streams running into the same, within this commonwealth, and for repealing several acts heretofore made for that purpose; ” one James Bowers, a minor, upon the complaint of the now plaintiff, and by force of a warrant, issued by James Abbot, Esq., a justice of the peace for said county, was on, &c., brought before the said justice to answer to said complaint, and after due examination, &c., it was adjudged by the said justice that the said Bowers should pay a fine of 13 dollars 33 cents, to be disposed of as the law directs, with costs, &,c.; from which judgment the said Bowers appealed to the next Court of Common Pleas, &c., and the defendant entered into a recognizance to the plaintiff, &c., with condition that Bowers should prosecute his said appeal with effect, &c., “ as by said recognizance here in Court to be produced more fully appears.” The plaintiff then avers, that Bowers did not prosecute, &c., and that the defendant at the same Court, although solemnly called, did not appear; and that an action has accrued to the plaintiff, &c.
    The second count contains the same recitals and averments as the preceding one; except that after reciting the recognizance, it adds, “As by the record of said recognizance with the said justice remaining more fully appears, a copy whereof, certified by said justice, the said Bridge brings here into Court.”
    
    The third count declares generally upon the recognizance, “ a 
      
      copy of which recognizance, certified by the said justice, the said Bridge brings here into Court of the tenor following,” viz. and recites it in hcec verba, with the condition ; adding an averment that Bowers did not prosecute his appeal, and that the defendant also made default.
    To these new counts the defendant still demurs, and assigns several causes of demurrer; amongst which are these, * viz. “ That it does not appear that the recognizance [ *211 ] was ever transmitted by the said justice to the Court appealed to, and there entered of record, as it ought to have been/’ and “ that the said recognizance is not declared on as a record of the Court of Common Pleas, to which nul tiel record might be pleaded; but as a record of the said justice, to which the plea would be immaterial.”
    
      Locke for the plaintiff.
    
      Stearns for the defendant.
    
      
       In the report of the decision referred to, the demurrer is stated to have been special, and the causes of demurrer are recited. I have since learned that the causes of demurrer were withdrawn before the argument. The new counts, and the demurrer to them, were also filed before the opinion of the court was delivered at Boston and the parties expected to be further heard ; but this was not known to the court at the time of the decision, which, of course, was upon the former counts.
    
   Curia.

The recognizance should have been returned to the Court of Common Pleas, to which court the appeal was made, and there filed as a record of that court, upon which the action should have been brought. The plaintiff has not declared, in either of his counts, as upon a record of the Common Pleas, and for this the declaration must be adjudged bad.  