
    Sammuel G. Brackett v. Elijah McLeran and Miles Shorey.
    
      Appeal. Record erf recognizance.
    
    A declaration in scire facias upon a recognizance for an appeal, setting forth the condition of the recognizance in the words of the statute, is not supported by a record, which shows only that the defendants “ recognized to the plaintiff in twenty dollars for the prosecution of the appeal in due form of law,"
    
    Scire Facias upon a recognizance for an appeal. The declaration set forth the condition of the recognizance in the words of the statute. Plea, nul tiel record. Trial by the court, June Term, 1850. Poland, J., presiding.
    On trial the plaintiff gave in evidence the justice’s record of the suit in which the appeal was taken, and the record of the recognizance, — which was in these words, — “And the defendants, as principals, and Miles Shorey, as surety, recognized to the plaintiff in the sum of twenty dollars for the prosecution of their said appeal in due form of law.” The plaintiff also gave in evidence the record of the county court, showing an affirmance of the justice’s judgment, and also the execution issued by the county court in the same case.
    Upon this evidence the county court decided, that there is such a record, as that declared upon, and rendered judgment for the plaintiff. Exceptions by defendants.
    
      A. Underwood for defendants.
    jlf. Hale for plaintiff.
   The opinion of the court was delivered by

Bennett, J.

There is one ground, upon which we think, the finding of the county court cannot be sustained; and we shall not take time to consider any of the other objections, which have been made to their decision. All that the record given in evidence shows, is the usual minute, made by the justice upon allowing the appeal. This, no doubt, was sufficient to enable the justice to make out a recognizance in due form; but we cannot regard the' minute as such record, as is declared upon.

The minute is, the defendants in this action recognized to the plaintiffs in twenty dollars for the prosecution of the appeal in due form of law.” The declaration sets out the condition of the recognizance in the words of the statute. It has often been held in this state, that the minute of the justice, made upon the writ, is not a record, that can be declared upon as a record of recognizance. The issue should have been found, upon the evidence, for the defendants.

Judgment of the county court reversed.  