Dodge v. Kellock

*267The opinion of the Court was delivered by

Weston J.

In Bridge v. Ford, 4 Mass. 641, cited in the argument, which was debt on a recognizance, entered into before a justice of the peace, conditioned for prosecuting an appeal, it was held essential that the recognizance should appear to have been returned, and entered of record in the Common Pleas. . The recognizance declared on, contains no averment to this effect, although it is of a similar character. It is said that this case is distinguishable from that, as there the appeal was not prosecuted, which was done here, and judgment rendered upon the appeal. Hence it is insisted that the recognizance was returned, and that it would so have appeared, upon an inspection of the record. But we are satisfied that the averment of this fact, which is essential to the liability of the defendant, should have been distinctly and affirmatively made in the declaration ; and that is matter of substance, of which advantage may be taken on general demurrer. The declaration is therefore bad as it stands ; but may be amended upon motion, on payment of defendant’s costs.