¶1As the defendant has taken several exceptions to the declaration, in this case, we shall examine those exceptions in the first place, because, if any one of them be well founded, it will be unnecessary to examine the merits of the pleas, it being an established rule, that judgment is to be given against the party whose pleading is first defective in substance. 1 Chitty’s Pl. 647.
¶2One of the objections to the declaration is, that there is no sufficient allegation of any breach of the condition of the recognizance.
¶3As by the very term of the recognizance, no debt is due until there is a breach of the condition, it is very clear that the declaration must be adjudged insufficient, unless a breach of the condition is duly alleged.
¶4The language of the statute under which this recognizance was taken, is, u and the said court may take security by way of recognizance, of the person so charged for his appearance at any future term as maybe necessary.”
¶5And although the condition of the recognizance in this case is, in terms, alleged to be that Chesley should appear at the court, answer to the complaint, and not depart without leave, but abide the order of the court, yet in substance, it amounts only to this, that he should be ready in court, when called, to receive any order the court might make in the cause. It was not necessary that he should have entered any appearance. If then, he was there ready, when called, to do and receive what the court might order, there was no breach of the condition. Indeed, there could be no breach of the condition until *369he was regularly called. IT, when called, he had neglected to appear, this would have been a breach of the condition. ff after appearance he had neglected or refused to perform any order of the court, it would have been a contempt for which he might have been committed to prison, but would not have been a breach of the condition of this recognizance.
¶6Whenever any person enters into a recognizance to the state for his appearance at court, in this state, the invariable practice has been to have him called, to answer according to the tenor of his recognizance, and in case he does not appear, to have his default recorded- it has never been supposed that if a person so recognized merely left the court without license; the condition of the recognizance was broken whether he was called or not. The regular, safe, and convenient course in these cases, is, to have the default, as well as the recognizance, a matter of record.
¶7In the case of The Commonwealth v. Downey, 9 Mass. Rep. 520, which was a scire facias upon a recognizance, the default was averred to appear of record.
¶8We have, on the whole, no hesitation in holding, an averment in this case, that the defendant being called upon his recognizance did not appear, but made default absolutely necessary to the maintenance of this suit. And we are also inclined to be of opinion, that the default must be averred to appear of record.
¶9It is a defect in substance, in this declaration, that there is nothing in it which amounts to an allegation, that Chesley, upon being called made default ; and for this cause we are of opinion that there must be
¶10Judgment for the defendant.