The opinion of the Court was delivered by
Huston, J.It is unpleasant, no doubt, to a judge to reverse proceedings on account of defect of form, where it may be apparent that in another shape the party must succeed ; and it is as unpleasant to me as to any other judge: but where the defect is in form and in substance too, and nothing by which to amend, the proceeding cannot be supported, especially if the exception is made before the trial. We were told in this case that a suit had existed between William Hall and Hugh M’Cleary before the justice, and an appeal and a recognizance by M. Barr, as bail of M’Cleary, who had entered into recognizance according to law to prosecute the appeal with effect; and this may be all true, and the court of common pleas may have seen the appeal and decided on it; but nothing like this, or any part of it, appears to this court. I have searched every part of the record without finding any thing which alluded to a suit before a justice, or an appeal. The scire facias states that on, &c. M. Barr took upon himself for Hugh M’Leary, late of Armstrong county, in the sum of 150 dollars, that the said Hugh M’Cleary should appear in our court of common pleas on the third Monday of June then next following, and so from day to day, of a plea of trespass on the case, and by a certain William Hall against the said Hugh M’Cleary in said court prosecuted, until that plea should be determined, and judgment thereon rendered; and if it should happen that the aforesaid Hugh in the aforesaid plea should be convicted, &c. &c., proceeding to the end in language not more technical or intelligible, but not an allusion to any suit before a justice, or an appeal. Now this was necessary to authorize a justice to take a recognizance. In a suit- before him on an appeal, he could take a recognizance, but not on any or every suit in court. This court has relaxed in the strictness once required in the form of such recognizances, and this, I was going to say, from necessity; for so many of them were totally defective in point of form, as to amount in a great degree to taking away the benefit of appeal, or of bail on appeal. And if it had been stated in this scire facias that a suit had existed before a justice, a decision and *301an appeal, and a recognizance of bail on appeal, we would not readily have reversed on account of any defect of form in that recognizance, but have taken it to be what it ought to have been, if we possibly could have so considered it. The essential matter to give the justice any authority to take a recognizance is wanting in this case; does not appear in any part of the record before us; is not stated in the scire facias.
There was error in deciding that this scire facias was good, and the judgment is reversed.
Judgment reversed.