The practice of taking recognizances to keep the peace is of long standing, and unless there is some way to ascertain whether the conusor has violated his recognizance, the practice is no better than an idle ceremony.
The defendant recognized to do two things: (1) to appear at the supreme court and answer to all such matters and things as should be objected against him one half of the state; and (2) that it in the meantime he would be of good behavior, and would not violate any of the provisions of the statutes relating to the sale of intoxicating liquors. In order to entitle the state to recover, it must appear that the condition of this recognizance has been forfeited in one or the other of these two things. As to the first matter which the defendant bound himself to do, his default would appear by his neglecting to appear and answer, and would be established upon his being called and his default recorded. As to the other matter which he bound himself not to do, that is, not to violate the statute, his default could only be established upon due inquiry to see whether he had kept the terms of his recognizance in that respect. If the verdict of the jury should be that he had not, the default, upon the recording of the verdict would become matter of record, just as when, in the other case, the defendant is called, and not appearing, his default is recorded by the clerk.
Commonwealth v. Braynard, 6 Pick. 113, was where the respondent was sentenced to pay a fine and costs, and to recognize to keep the peace for one year, especially as to one Rice. He paid the fine and costs, and within the year committed another assault upon Rice, for which he was indicted, convicted, and sentenced to pay another fine, with costs, which sentence he complied with. He was then sued to recover the amount of the recognizance, and it was held that the action was sustainable. Whether the action was debt, or scire facias, does not appear from the reported case, and it is not material to inquire.
I am satisfied that debt may be maintained upon this recognizance. The declaration can be amended so as to show that the recognizance was taken in a proceeding regularly before the magistrate before whom it was entered into.
Demurrer overruled. *Page 182