
    Commonwealth versus Thomas Downey.
    A recognizance must recite the cause of its caption.
    A scire facias can only issue from a Court in possession of the record upon which it issues.
    This was a scire facias, brought to recover the forfeiture of a recognizance entered into by the defendant, in the Municipal Court for the town of Boston, conditioned for his prosecuting an appeal by him made from a sentence of the said court against him, upon a conviction therein had for keeping a billiard-table, &c. The scire facias recited the presentment, conviction, sentence, and appeal. The recognizance is inserted at full length, with its condition, that, if the defendant should prosecute an appeal “ from a judgment given against him in the Municipal Court, holden, &c., for the sum of fifty dollars, and to recognize, in the sum of one hundred and fifty dollars, for his being of the good behavior for three years from, &c., and pay costs, at the next Supreme Judicial Court, to be holden, &c., then, &c.; otherwise,” &c. It then averred that the said recognizance was duly transmitted to the S. J. Court, at the term to which the defendant had appealed, and was there duly entered of record; and that the defendant, although * solemnly called to come into the said Court, and prosecute his said appeal with effect, did not come, but thereof made default. “ All which there in the said Court appears of record; whereby the said sum of one hundred and fifty dollars became forfeited to us,” &c.
    The defendant demurred to. the commonwealth’s writ, and assigned for causes of demurrer, — 1. That it does not appear that the said proceedings, had before the Municipal Court on said indictment, have been returned or certified to this Court, or are of record here. 2. That it does not appear that the proceedings on said indict ment, before said Municipal Court, are the same judgment mentioned in said recognizance. 3. That it does not appear, by said recognizance, that the said judgment, therein specified to have been given against the said Thomas, was rendered in favor of the commonwealth, or of any person. And there w'as a joinder in demurrer on the part of the commonwealth
    
      
      Aylwin,
    
    in support of the demurrer, argued that the recognizance was void, as not containing matter sufficient to warrant a judgment on its forfeiture. It neither shows any antecedent proceedings which authorized the taking of it, nor any intelligible object for which it was entered into. It neither shows that the inferior court had jurisdiction of the subject, nor that it proceeded regularly in requiring the stipulation.
    Nor are its defects cured by the recital of the proceedings in the court below. The writ of scire facias is a judicial writ, founded on some record in the court whence it issues,  as the very form of the writ shows. Were it otherwise, the Court could have no means of ascertaining the truth of the allegations. If the record was essential to the prosecutor, he should have removed it into this court by certiorari, before suing his scire facias.
    
    The recognizance must stand or fall by itself. It ought to be a complete record; and if it be forfeited, it should show that the forfeiture may properly be enforced in pursuance of some regular judicial proceedings. 
    
    * Thatcher for the commonwealth.
    
      
      
        Co. Lit. 290. — Fitz. N. B. 265. — 3 Lev. 223.
    
    
      
      
        Cro. Car. 34. — 1 Saund. 98.
    
   By the Court.

A recognizance should recite the cause of its caption. It is also a principle well settled, that a scire facias can issue from no court but one in possession of the record upon which it issues. For both these reasons, the commonwealth can take nothing by its writ in this case, 
      
      
        [Bridge vs. Ford, 4 Mass. Rep. 641, 7 Mass. Rep. 209.— Commonwealth vs. Daggett, 16 Mass. Rep. 447. — Ed.]
     