
    Dodge vs. Kellock.
    In debt on a recognizance entered into before a justice of tbe peace, conditioned for the prosecution of an appeal, the declaration should contain an averment that the recognizance had been returned to, and entered of record in, the Court of Common Pleas. And the omission thereof being matter of substance, the defendant may avail himself of it by general demurrer.
    
    This was an action of debt, commenced in the Court of Common Pleas, on a recognizance entered into before a justice of the peace for the prosecution of an appeal, payment of costs, &c. The plaintiff stated in his declaration that, though judgment in said suit had been rendered in his favour by the Court of Common Pleas for costs, &c., yet that the defendant had never paid the same. But the declaration contained no averment that the recognizance had been returned to, and made a part of the record in the Court of Common Pleas.
    
    There was a general demurrer to the declaration, which was joined.
    
      Barnard, for the defendant,
    cited the case of Bridge v. Ford, 4 Mass. 641; and Harrington v. Brown al. 7 Pick. 232.
    
      Farley, for the plaintiff,
    contended that the case of Bridge ®. Ford, was not analogous to the present, inasmuch as that was for not entering an appeal, while this is for the non-payment of the cost accruing after the appeal. Here also, judgment was rendered in the Court of Common Pleas in the appealed case, which could not have been done, unless the recognizance had been returned to, and made a matter of record in said Court. Proferí of the record of said judgment is made in the declaration, by which it appears that the recognizance was so returned and recorded.
    But this objection if it have any weight, should have been set forth in a special, not a general demurrer. Dole v. Weeks, 4 Mass. 451.
    
   The opinion of the Court was delivered by

Weston J.

In Bridge v. Ford, 4 Mass. 641, cited in the argument, which was debt on a recognizance, entered into before a justice of the peace, conditioned for prosecuting an appeal, it was held essential that the recognizance should appear to have been returned, and entered of record in the Common Pleas. . The recognizance declared on, contains no averment to this effect, although it is of a similar character. It is said that this case is distinguishable from that, as there the appeal was not prosecuted, which was done here, and judgment rendered upon the appeal. Hence it is insisted that the recognizance was returned, and that it would so have appeared, upon an inspection of the record. But we are satisfied that the averment of this fact, which is essential to the liability of the defendant, should have been distinctly and affirmatively made in the declaration ; and that is matter of substance, of which advantage may be taken on general demurrer. The declaration is therefore bad as it stands ; but may be amended upon motion, on payment of defendant’s costs.  