
    State v. David Stevens.
    Debt lies on a recognizance to the State.
    The declaration in debt on recognizance need not state the occasion of taking the recognizance.
    Debt on recognizance; for that .the said David Stevens, before C. H., Esq., one of our justices assigned, &c., at-, in said county, on-, acknowledged himself indebted to the State of New Hampshire in the sum oh $25, to be levied on his goods and chattels, lands and tenements, and, for want thereof, on bis body ; on condition, nevertheless, that if one B. S., of -, should personally appear before the aforesaid C. H., Esq., &c., at-, on-, to answer to the matters and things which should then and there be objected against him by S. II., of -, in behalf of said State, concerning an assault made upon her, the said S. H., and other misdemeanors tending to the breach of the peace, and should do that which should then and there be enjoined upon him by the said justice, and should be of good behavior to all the citizens of the State of New Hampshire, especially towards the said S. H., and not depart without license, then the aforesaid recognizance to be void and of none effect, otherwise in full force and effect; as, by the record of said recognizance with the said C. H. remaining, appears, an authenticated copy of which is in court to be produced ; and at a court liolden by the said justice, on-, at-, upon hearing the complaint of the said S. H., on behalf of said State, touching the matters and things then and there by her alleged against the said B. S., and examination thereon being had, the said B. S. was ordered by our said justice to recognize himself in the sum of $100, with two sufficient sureties, in the sum of $50 each, for the appearance of the said B. S. before our justices of our Superior Court of Judicature then next to be liolden at-, on-, to answer to such things as should then and there be objected against him in behalf of said State ; and the said B. S. did then and there refuse to recognize, as he was ordered as aforesaid, and did then and there depart from the court then and there holden before our said justice, without license, in contempt of the authority of our said justice, contrary to the tenor of the recognizance aforesaid of said David Stevens; and the said David Stevens, being then and there three times solemnly called to bring the body of said B. S. into court then and there holden before our said justice, did not bring the body of the said B. S. when called upon so to do, but then and there made default, whereupon the recognizance aforesaid of the said David Stevens became and was forfeited, and was then and there adjudged and declared forfeited by our said justice ; all which, by the record thereof, with the' said justice remaining, appears; whereby an action hath accrued to said State to demand and have of said David Stevens the aforesaid sum of $25 at said -; yet, though often requested, said David has never paid the same, but unjustly detains it; to the damage of the said State of New Hampshire, as they say, the sum of $60.
    To this declaration the defendant demurred, and assigned for causes: —
    1. That it does not appear that any suit, prosecution, or process had been instituted, and was pending before the justice, against the said B. S., or any other person, when the recognizance was entered into ; or that B. S., or any. other person, had been, or then was, brought before the said justice, to be examined or tried for any criminal offence.
    2. It does not appear that the justice was authorized to take any recognizance when he took this.
    3. By law, no action of debt lies on such recognizance.
    4. That the declaration is bad, insufficient, informal, &c.
    Joinder in demurrer.
    Noyes, for plaintiffs.
    
      Webster, for defendant.
   The opinion of the Court was now delivered by

Smith, C. J.

[He first stated the substance of the declaration, and then continued as follows:] It seems to be admitted that C. H. was a justice of the peace, and that, under certain circumstances, he was empowered to take recognizance; but it is contended that this declaration does not state a case of that description.

By the statute of Feb. 9, 1791, N. H. Laws, ed. 1805, 55 (he has the same authority at common law in this State), when any persons brought before a justice for examination or trial, he may postpone the matter to a future day, and he may take a recognizance of the party, for his appearance before him at such future day, in the same manner as the sessions and this court may do. If he may take a recognizance of the party, any other may lawfully recognize for him. He may order sureties. David Stevens, in ..this case, was probably a surety. He may take this recognizance in the same manner as this court may do. In such case, the recognizance in this court does not state, nor need a declaration upon it, how the party came before the court; whether on complaint and recognizance before a justice of the peace; on indictment and capias ; on voluntary act; or by order of the court when no prosecution pending. And, for the same reason, it need not state these things when taken before a justice of the peace. The party submitted to the justice’s order to recognize, and shall not now object. If the order was illegal, he might have refused, and, if committed, have had a habeas corpus and obtained his discharge ; or, if the act of the justice was wanton and malicious, he would have remedy by action.

Besides, there may have been good cause for this recognizance, and yet no prosecution instituted or pending before the justice at the time. Suppose the justice saw the assault on S. H., or heard B. S. threaten to kill her, &c. In such case he might lawfully order B. S. to recognize for his appearance before him, at a future day, to answer, &c., and, in the mean time, to be of good behavior. Such a case would be properly described in this declaration. And if there is any possible case in which the recognizance may have been lawfully taken, it is sufficient.

But I form my opinion on the ground first stated, that, in debt on recognizance, it is not necessary to state the occasion of taking the recognizance. As it is a debt solemnly acknowledged before a court of justice, it is presumed to be a lawful transaction, and binding, till the contrary is shown,

It is further objected that debt does not lie on recognizance. The authorities are the other way. Com. Dig. Debt, A. 3; 4 Blackst. 253; Tidd, 237, 238, 994; Cro. Eliz. 608, 817 ; 3 Wooddes. 96; 2 Selw. 467; 1 Wilson, 284; Com. Dig. Pleader, 2 W. 10. Judgment for the State. 
      
       As to the authority of justices of the peace to take recognizances, see Bell, C. J., in State v. Eastman, 1800, 42 N. H. 265, 267-273.
     
      
      
        а) A declaration on a bond or other specialty [or record] need not state how the debt accrued, otherwise than the making of the obligation, the rendering of the judgment, &c.; not the consideration, suit, &c.
      
        Sed vide Willes, 18, 19.
     
      
      б) Debt is sometimes brought upon a recognizance of hail: 1 Chitty, 104; 2 Chitty, PI. 177-181; but the remedy against bail is more frequently by scire facias. Willes, 18.
      Debt lies on recognizance. See Gilbert’s Cases, Essay on Action of Debt, 394, 395.
      Debt doth lie on recognizance for good behavior. 1 Hall’s Law Jour. 286.
     
      
       I. Commonwealth v. Green, 1815, 12 Mass. 1, is a direct decision that debt lies on a recognizance to the State. In State v. Davis, 1862, 43 N. H. 600, and State v. Chesley, 1828, 4 N. H. 366, no objection was raised to this form of action.
      II. Upon the question whether the occasion of taking the recognizance should have been stated in the declaration, the authorities are not unanimous. State v. Stevens is sustained by Champlain v. People, 1848, 2 N. Y. (Comstock) 82, and People v. Kane, 1847, 4 Denio, 530.
     