¶1The objection to the regularity of the proceedings in the present case, arising from the failure of the magistrates who took the recognizance to return it to the justice before whom Orris Leach, the principal in the recognizance, was bound to appear, in order that the principal and sureties might be defaulted thereon, and these proceedings be transmitted to the court of common pleas, and there be entered of record before the issuing of a scire facias, is, we think, well taken, and must prevail. The proper course to be pursued in such cases seems to be well settled, and distinctly marked out, in several cases found in our reports. The case of Johnson v. Randall, 7 Mass. 340, assumes the rule to be, that justices of the peace, taking recognizances for the appearance of a party before another tribunal, must return them to the court where the principal recognizor is to appear, and if defaulted there, by reason of non-appearance before such tribunal, that court, in case it has not jurisdiction to issue scire facias and render judgment thereon, will certify all the previous proceedings, including the taking of the recognizance and the default thereon, to such other court as has further jurisdiction thereon. The cases of Commonwealth v. Gordon, 15 Pick. 197, and Commonwealth v. M’Neill, 19 Pick. 127, are to the same effect. All these cases seem to require, as a part of the proceedings requisite to charge the recognizors, that such recognizance be returned, in the first instance, to the court.or magistrate before whom the principal is bound to appear.
¶2The Rev. Sts. c. 135, § 30, have made no other change in these proceedings, besides that of providing that the omission to note or record the default shall not be a bar to the maintaining of an action on such recognizance. It is still necessary that such recognizance be returned to the magistrate; and *410the party must, in fact, make default in the performance of the condition thereof.
¶3A scire facias on a recognizance can only issue from the court to which these proceedings are all properly certified, where the tribunal before which the party was to appear has not jurisdiction in proceedings on scire facias. But there was nothing upon the record of the court of common pleas, and nothing had been certified to that court, authorizing the issuing of a scire facias. The recognizance was returned there, but not through the proper channel, nor accompanied by any record showing that it had been previously returned to the justice before whom the party had recognized to appear. It is conceded, in point of fact, that it had not been thus returned, but was sent, by the magistrates who took it, directly to the court of common pleas. This was irregular, and for *his cause the defence to the action is well maintained.
¶4Judgment for the defendant,.