The opinion of the Court was by
Tenney J.— This is an action of debt upon a recognizance taken upon an appeal from the District to this Court to prosecute the same with effect, and to pay intervening damages and costs. The defendants consented to be defaulted and to be heard in damages. They thereby admitted their liability, and the Court limited the damages to the costs, which accrued after the appeal, the plaintiff insisting that he was entitled to the full penalty.
Formerly the conusors were liable to that extent on the breach of the condition in a recognizance. Paul v. Nowell, 6 Greenl. 239. By the statute of 1831, c. 497, the rigor of the law was so far mitigated, that the Supreme Judicial Court had the same power in actions on recognizances, to make up judgment for such a sum as should be due in equity and good conscience as upon bonds and other contracts under seal, where there had been a forfeiture; and chap. 115, § 78, of the Revised Statutes, provides that in all actions in this Court on a recognizance, entered into in the District Court to prosecute an appeal with effect, if the jury shall find, that any of the *400conditions have been broken, they shall estimate the damages, the plaintiff has sustained. This action was commenced in the District Court, to which no such power is given by the Revised Statutes in actions on recognizances, as was given to it in actions upon bonds by c. 50, $ 2 of the statutes of 1821.
The action of scire facias instead of debt is often resorted to in such cases, and such must be brought in the Court to which the appeal is made. Vallance v. Sawyer, 4 Greenl. 62. It may have been from such practice, that this Court alone are vested with the power given by the Revised Statutes and the statute of 1831. We can hardly suppose, that the Legislature intended that different rules for estimating the damages should be applied to the same subject matter in the two Courts. But the statute alone authorizes damages for a less amount, than the sum named in the recognizance, and it confines the power exclusively to this Court; and therefore the exceptions are sustained.
The action is now pending in the Supreme Judicial Court, which has authority to render judgment for such damages, as the plaintiff1 has actually sustained. This must be the costs, which have accrued since the appeal.