dissent">

The following dissenting opinion was delivered by

Whitman C. J.

This is an action of debt on a recognizance. It comes from the district court, with a report of the facts, and points of law thereupon raised, accompanied with an agreement by the parties, as, also, reported by the Judge, that, if the plaintiff, upon the case stated, is entitled to recover, the defendant is to be defaulted; otherwise that the plaintiff shall become nonsuit.

Nil debit and non est factum were pleaded, and issues thereon joined. No objection was taken by demurrer, as there might have been, to the plea of nil debit. But issue being joined thereon, it gave the defendant a right to avail himself of every matter in defence, which in general may be taken advantage of under such a plea; and the plaintiff might be called upon to prove every allegation in his declaration. Chitty on PI. 478. The plaintiff, then, under the state of the pleadings, as well as under the agreement of the parties, might be expected to make out a perfect right to recover; and cannot be sheltered behind technical objections.

He must show, that the recognizance was matter of record in the district court; and that it was in conformity to law, together with a breach of its condition, as matter of record in that court, in not prosecuting the appeal, as conditioned in the recognizance, in this Court. Now, it is believed that such recognizances are never extended, as matter of record, in the *193Court in which they are taken; but that the original recognizance is uniformly transmitted to the appellate Court, it being first merely noted in the conclusion of the judgment, and by way of showing that an appeal had been duly taken, that the appellant had recognized according to law, to prosecute his appeal. It is true, that, in Blackstone’s Commentaries, it is said, that a recognizance is “ an obligation of record, which a man enters into before some court of record, or magistrate, duly authorizedand that this being certified to, or being taken by the officer of some court, is witnessed only by the record of that court. That is, if certified to some court, it is witnessed only by the record of that court. If taken in a court of record, conditioned for any thing to be done in that court, it, of course, becomes a record of that court, and is to be witnessed only by its records.

The taking of a recognizance, conditioned for the performance of some act in another court, whether taken by an officer of a court of record, or by a magistrate, or some person specially authorized to take it, is a mere ministerial act; and in either case is not a matter, properly, of record till returned to the proper court, where, only, if any default takes place, it can be noted, and made matter of record. Till then the recognizance is no otherwise to be regarded, than if it were a bail bond, which, in effect, it is, taken by a sheriff, which is no record till returned into court, and made the ground work of proceedings there.

Recognizances are not unfrequently taken out of Court, by persons specially authorized for the purpose, who keep no records. Certain justices of the quorum are authorized to take them, as are also the individual justices of the district courts, when any one stands committed for a bailable offence. Rev. Stat. c. 140, <§> 38. In such case no record is made by either of them. The justices are expected merely to transmit them to the proper court, where a default may take place. And so recognizances may be taken, even to prosecute an appeal from the district court, by a person specially appointed for the purpose, who would keep no record concerning it. Magistrates *194and district courts often take recognizances of witnesses, conditioned for their appearance in this Court. No record is ever made, by either, of such an act, or any notice taken thereof 'on their records. They are simply taken and sent to the proper Court. There, only, are all recognizances, so transmitted, ’to be looked for; and there, only, can any default take place, :and be noted and become matter of record.

Accordingly, in Bridge v. Ford, 4 Mass. R. 641, it was ‘held, that, to maintain an action of debt on a recognizance to prosecute an appeal, from a judgment of a justice of the peace, it must appear that the recognizance had been ire turned to, and had been entered of record, in the appellate court. The same principle is affirmed in Bridge v. Ford, 7 Mass. R. 209; and again in Libby v. Main & al. 2 Fairf. 344. In either of those cases the averment might have been, with equal propriety as in this case, that the recognizance was ;a matter of record in the court appealed from; for justices are required by law (Rev. Stat. c. 116, § 19,) to keep a fair record of their proceedings; and, in case of appeal, the appellant (§ 11,) shall, at the appellate court, produce a “copy of the record.” And their records in civil causes, cognizable by them', are treated as such, uniformly. Their veracity cannot be impeached, any more than those of other courts; and on a plea of nul tiel record the trial is by inspection of them as of >other records.

Hence it is manifest that, there can be no distinction, in reference to this question, between appeals from the courts of justices of the peace, and other courts; and the authorities abundantly show it.

In the case of The People v. Van Eps, 4 Wend. 387, the •court, speaking of a recognizance, say, that “ it ought also to have been averred, that the default of the principal, for not appearing, was entered of record.” This could only be done, where the default took place. Again; in the same case, it is further remarked, “ it does not, strictly speaking, become a recognizance, or a debt of record, until it is filed or recorded in the court in which it is returnable.

*195In Vallance v. Sawyer, 4 Greenl. 62, which was scire facias, commenced originally in this Court, upon a recognizance taken in the court of common pleas, to prosecute an appeal in this Court, to which the defendant demurred, because, as he alleged, this Court had not original cognizance of the matter, C. I. Mellen remarked, in delivering the opinion of the Court, that “ the usage has invariably been to issue it, (the scire facias,) from that court to which the appeal is made, for the prosecution of which the recognizance is taken,” and to which the same is properly returned ; and that “ the very language of the writ, as to us appears of record, shows this.” And in Paul v. Nowell, 6 Greenl. 233, the same Chief Justice, in delivering the opinion of the Court, says of a recognizance to prosecute an appeal from the court of common pleas to this Court, “ it (not a copy of the record of it) has been returned to, and placed on the files of this Court ; and nothing more is required by our statute respecting appeals.”

In Johnson v. Randall, 7 Mass. R. 340, which was scire facias on a recognizance, the Court held, that the action could not be supported, as it did not appear, that the recognizance (not a copy of the record of it) had been returned to, and made a record of the court of common pleas, from whence the scire facias issued.

If the decision be in the case at bar, that the action can be supported, it will be the first instance of the kind on record. To support such an action, it must be averred, that a default had taken place. And how can that be made to appear ? It cannot appear by any thing to be found in the district court, to the records which, alone, is any reference made. Must it not appeal- by a record of the appellate court, if at all ? Yet nothing of the kind appears, or is pretended to exist.

The defendant, therefore, may well avail himself of the defence, that there is no such record in the district court, as is averred; for no record could be made there of any default upon a recognizance, like the one set forth; and may avail himself, moreover, of the defects relied upon, under the issue *196of nil debit; and the case seems clearly with him under the agreement of the parties, as to the judgment to be rendered.

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