
    * Meriam Johnson versus Joshua Randall.
    A justice of the peace, taking a recognizance for appearance, must return the recognizance to the court where the recognizor is to appear; and if such court has not power to award execution upon a scire facias, it must certify the recognizance to some court where such execution can be awarded.
    A justice of the peace can bind the putative father of a bastard child to answer only by taking a bond, and not by recognizance.
    The writ in this case was a scire facias commenced in the Court of Common Pleas, praying for an execution upon a recognizance, entered into by the original defendant to the plaintiff before a justice of the peace, conditioned to appear in the Municipal Court, and there to answer to the plaintiff, on a charge of being the putative father of her bastard child. The writ alleges that the defendant was called to appear at the Municipal Court, but made default. There is a demurrer with causes, and a joinder in demurrer, on which the plaintiff below had an award of execution.
    The demurrer was argued March term, 1809, by Parker for the plaintiff, and Thurston for the defendant.
    While the argument was proceeding, the Court observed to the plaintiff’s counsel that he could not support his declaration, (since it did not appear, from the record, that the justice had returned the recognizance to the Municipal Court, or that the Municipal Court had certified it to the Court of Common Pleas, where it should be entered of record;) that a scire facias upon a recognizance must be sued in the court where the recognizance was recorded; that justices of the peace, taking recognizances for appearance, must return them to the court where the recognizor was to appear; and if from the jurisdiction of that court, it could not award execution upon a scire facias, it ought to certify the recognizance to some court, where such execution could be awarded; that, by the statute of 1783, c. 51, the Sessions are directed to certify the recognizances returned there, by any justice of the peace, to the Common Pleas, if the recognizance be forfeited for the default of the conusor, with a record of the default; and for the same reason, the Municipal Court ought to certify the recognizances returned there, with the default of the conusor thereon, to the Common Pleas, where it should be entered of record; and if a court refused to certify a recognizance, * without a sufficient cause, this [ * 341 ] Court could compel it by mandamus.
    
    The plaintiff then moved for leave to amend, upon payment of costs; but the defendant, denying the charge, said he was ready to answer the plaintiff at the Municipal Court, take his trial, and pet form the judgment; and that his default upon the recognizance arose from accident, and was not intentional.
    The Court then proposed to the parties to proceed to a trial in the Municipal Court; and that in the mean time this action should stay; and if the defendant should appear and abide the order of the Municipal Court, then no further proceedings should be had ; and to this the parties agreed.
    The defendant afterwards refused to appear and take his trial in the Municipal Court; and the plaintiff, having examined the records of the Municipal Court, and found the recognizance regularly returned and certified to the Court of Common Pleas, and there entered of record, obtained leave to amend his scire facias, to make the averments comport with the record.
    To the writ and declaration, thus amended, the defendant demurred; relying on this, as the ground of his demurrer, that a justice of the peace is not authorized to require a recognizance from a man charged as the putative father of a bastard child, but a bond only to the mother. 
    
    
      
       See Stat. 1785, c. 66, § 2.
    
   At an adjournment of this term, holden on the 29th of July, the opinion of the Court was delivered to the following effect by

Parsons, C. J.

The point made by the defendant’s counsel came before us, in the case of Merrill vs. Prince, at the last term in Cumberland; and the Court were clearly of opinion that a justice could only bind the putative father to answer by requiring a bond from him, and not a recognizance. That case will be reported, with the reasons at large of the opinion of the Court.

The statute mentions a bond as .the security to be given by the putative father. And when the condition of a bond [ * 342 ] * is broken, the Court may relieve against the penalty upon equitable terms; but not against a recognizance, if it be forfeited. It is our opinion that in this case the demurrer must prevail, and the declaration be adjudged bad and insufficient for the plaintiff to maintain his action.

Costs for the defendant. 
      
       Vide post.
     