
    Peter W. Newcomb vs. Edwin P. Worster.
    The insertion of an obligation which is unwarranted in the condition of a recognizance renders the recognizance void.
   Merrick, J.

This is an action upon a recognizance entered into by the defendant as surety with Louisa Richards as principal, before E. F. Hall, Esq., a justice of the peace for the county of Norfolk, upon an appeal to the superior court claimed by her from a judgment rendered against her by the said Hall in favor of the present plaintiff. She was entitled to the benefit of such an appeal if she duly recognized to the adverse party in a reasonable sum, with surety, that she would prosecute the same with effect, and pay all costs which should afterwards arise thereon. Gen. Sts. c. 120, § 26. But it was made a part of the condition of this recognizance that she should, in addition to the subsequently accruing costs, pay also all intervening damages. The latter was more than the magistrate had any authority or right to require; and the insertion of such an obligation, as a part of its condition, in the recognizance, was unwarranted and rendered it wholly illegal and void. Jordan v. McKenney, 45 Maine, 306. French v. Snell, 37 Maine, 100.

E. M. Bigelow, for the defendant.

W. Colburn, for the plaintiff.

Demurrer sustained. Judgment for the defendant.  