Dodge v. Kellock , 13 Me. 136 ( 1836 )

After a continuance for advisement, the opinion of the Court was drawn up by

Weston C. J.

Under leave to amend, a new count has been added to the plaintiff’s declaration, which has removed the objection, which was sustained upon the former joinder in demurrer, between these parties. 1 Fairf. 266. But we are constrained under the authority of former decisions, to give effect to other objections, which cannot be removed by amendment.

In Bridge v. Ford, 4 Mass. R. 641, which was debt on a recognizance taken before a justice of the peace, Parsons C. J. in delivering the opinion of the court, says that no presumption is to be made in favor of the jurisdiction of an inferior magistrate, and that “ in the condition of the recognizance the justice ought to have recited so much of the cause, that it might appear that he had legal cognizance of it.” And in the Commonwealth v. Downey, 9 Mass. R. 520, which was scire facias, upon a recognizance entered into by the defendant, in the municipal court for the town of Boston, conditioned to prosecute an appeal, “ from a judgment given against him in the municipal court,” the action was not sustained, because the recognizance did not recite the cause of its caption. This was held fatal, as well as another objection of a different character. In this last case the nature of the judgment, and the cause for which it was rendered, could have been ascertained by the judgment itself, as it might in the case before us. In neither is there any direct reference to the judgment, as remaining of record in the court, by which it was rendered.

As therefore neither the jurisdiction of the justice rendering the judgment, nor the cause for which it was rendered, appears in the recognizance, it presents no sufficient cause, upon which to charge the defendant. If we could go out of the recognizance to the other proceedings in the case, enough may be found to supply these omissions; but we do not feel at liberty to do so, against the authority of the foregoing decisions, by which it was held necessary, that the cause of caption, and the jurisdiction of the court or justice, taking a recognizance, should appear in the condition.

Declaration adjudged had.