1. To sustain an action upon a recognizance given to prosecute an appeal, it must be sufficiently proved that-the recognizance was returned to and entered of record in the appellate court. The defendant contends that neither of these was done in a legal manner. It appears that in fact the recognizance was not returned with the other papers in the case, and has not as yet been spread upon the records of the court. It had, however, before the institution of this suit, been placed on the files of the superior court.
*392The question raised by this bill of exceptions seems to have been directly and fully met by the case of Benedict v. Cutting, 13 Met. 181. It was there held that, in the case of an appeal taken, the entry of the action in the appellate court carnes with it all the papers, including the recognizance returnable to that court, and they become a record of that court. This being so, all was done that was requisite in this respect to entitle the plaintiff to maintain his action.
Where the record has not been actually extended, the docket and papers on file in the case may be referred to, to supply the evidence that would be furnished by the full record. McGrath v. Seagrave, 2 Allen, 443. Park v. Darling, 4 Cush. 197. Tillotson v. Warner, 3 Gray, 574.
2. The fact of a recovery of the costs of the former action, in a suit on the judgment, payment of which was also a portion of the subject of the recognizance, does not discharge the recognizance, so far as it embraces the performance of other acts; and it is for those that this action is brought. The present is the only action brought on the recognizance.
3. No objection is open upon this bill of exceptions as to the declaration. If the plaintiff did not complete his amendment in that respect, but confined himself to a discontinuance as to one of the defendants, the defendant made no further point as to that at the trial. If an amendment as to this was required, it might at once be ordered, and would furnish no reason for a new trial. Gen. Sts. c. 129, §§ 41, 42.
Exceptions overruled.