#### Joseph Harrington *versus*Joseph Brown *et al.*

Where in debt upon a recognizance, the recognizance was alleged generally, and upon *nul tiel*record it appeared to be a recognizance with a condition, the variance was held fatal.

Where the defendant appeals from the judgment of the Common Pleas on a com plaint originally brought before a justice of the peace, on *St,*1825, *c,*89, providing further remedies for landlords and tenants, that court has no authority to take a recognizance conditioned that the appellant shall prosecute the appeal and pay ail rent due and in arrears and all intervening rent, damages and costs, but such a recognizance is void.

The condition of the recognizance in such case should be, to prosecute the appeal and pay all such costs as may arise after the appeal, as provided in *St,*1820, *c,*79, §4

Debt upon a recognizance. In the first count it is alleged, “ that the defendants, at Dedham, on the 19th of September, *2391826, by their recognizance, acknowledged themselves to be indebted to the plaintiff in the sum of 110 dollars, as by the record remaining in the Supreme Judicial Court for the county ' of Norfolk will fully appear, which is in full force, whereby an action hath accrued,” &c.

In the second count it is alleged, that the defendants, at the Court of Common Pleas, &c. before the clerk of that court duly authorized by law to take recognizances, acknowledged themselves to be indebted to the plaintiff each in the sum of 110 dollars, it being an appeal from that court from a judgment therein rendered against Brown in favor of the plaintiff, upon a complaint made by the plaintiff against Brown that he was in possession of certain real estate belonging to the plaintiff, against law and against the right of the plaintiff, to which complaint Brown pleaded soil and freehold in himself; in which case an appeal by law well lay to the Supreme Judicial Court, the Court of Common Pleas having jurisdiction of the subject matter of the cause ; that the condition of the recognizance was, that Brown should enter the action at the Supreme Judicial Court, &c. and prosecute the same to effect, and pay all rent due and in arrears and all intervening rent, damages and costs, which sum of 110 dollars was adjudged by the Court of Common Pleas to be a reasonable sum, and the recognizance was returned &c. according to law ; that Brown has not paid the plaintiff all rents due and in arrears, and all intervening rent, damages and costs, but has wholly neglected the same; that by reason of such neglect the defendants have broken the condition of their recognizance, &c. which recognizance is in full force and unsatisfied, as by the record thereof remaining before the Supreme Judicial Court will fully appear ; whereby an action, &c.

To the first count *nul tiel record*is pleaded, and issue is taken thereon.

The first plea to the second count is, that the subject matter of the recognizance therein described, was not within the jurisdiction of the Court of Common Pleas, and that the clerk thereof was not authorized to take the same.

To this the plaintiff replies, that the subject matter of the recognizance was within the jurisdiction of the Court of Com*240mon Pleas, and that the clerk thereof, as a justice of the peace, and as the constituted organ of the court, was duly authorized to take the same ; and this he prays may be inquired of by the *Court;*whereupon issue is joined.

*Oct. 29th.*

Tn other pleas it was alleged, that the defendants had paid the *costs*secured by the recognizance ; which was admitted in the replications.

The original complaint against Brown, brought before a justice of the peace, was founded upon *St.*1825, *c.*89, giving farther remedies for landlords and tenants, which provides, that where the defendant in such a complaint shall plead the title of himself, or any other person, to the freehold of the demanded premises, in justification, he shall be ordered to recognise to enter the action at the Court of Common Pleas, “ and to prosecute the same with effect and to pay all rent due and in arrears, and all intervening rent, damages and costs and that either party “ shall be allowed to appeal from the judgment of the Court of Common Pleas, in the same manner as if the suit had been originally commenced there.”

The recognizance produced upon the issue of *nul tiel record*was upon the condition set forth in the second count.

*Leland*and S. *J.*Gardner, for the defendants,

cited, in reference to the first issue, 3 Stark. Ev. 1595, and note 3; [5th Amer. ed. *vol.*1, *p.*426 ;] *Ward*v. Griffith, 1 Ld. Raym. 83 ; *Bridge*v. *Ford,*4 Mass. R. 643 ; *King*v. *Marsack,*6 T. R. 775 ; Com. Dig. *Record, C.*

*Harrington, pro se.*

The opinion of the Court was afterward drawn up by

Parker C. J.

The first count would have been adjudged bad on demurrer, for it does not show by what authority the recognizance therein mentioned was taken; but issue is joined on the plea of *nul tiel record.*The proper course of pleading would have been, to have prayed oyer of the recognizance and to have demurred. However, on the issue of *nul tiel record*it must be adjudged in favor of the defendants, for the record shows a recognizance with a condition, which is not such a recognizance as is set forth in the declaration. 4 Mass. R. 641 ; *Ward*v. *Griffith,*1 Ld. Raym. 83.

But the question which goes to the merits of the case and *241settles it conclusively, arises under the first plea to the second count. This also ought to have been presented in the form of a demurrer, after spreading the recognizance on the record upon oyer. It is founded on the alleged want of jurisdiction in the Court of Common Pleas to require and take a recognizance in that form, or any recognizance except such as is prescribed in the general statute providing for appeals from that court. And we are of opinion that this objection is fatal. The *St.*1825, c. 89, § 3, [Revised Stat. c. 104, § 9,] provides for such a recognizance as is described in the second count, **o*be taken before the justice of the peace before whom the process is instituted, when the defendant shall plead a title in himself, or any other person, to the premises which he occupies ; but in the same section it is provided, that either party shall be allowed to appeal from the judgment of the Court of Common Pleas in the same manner as if the suit had been originally commenced there. This gives that court no power to take any recognizance but such as are to be taken in all cases of appeal, as provided by *St.*1820, c. 79, § 4 ; [Revised Stat. c. 82, § 6 ;] which is only to secure the costs after the appeal. The recognizance is therefore void ; and even if it were good to secure the costs, it sufficiently appears by the pleadings, that so much of the condition as relates to costs, has been performed, and therefore the replication to the pleas stating that fact would be bad.

*Judgment for defendants.*