2 Me. 62 | Me. | 1822
delivered the opinion of the Court as follows*
It is settled law that a recognizance should state the ground on which it is taken, so that it may appear that the magistrate taking it had jurisdiction and authority to demand and receive it. 4 Mass. 641. 7 Mass. 209. 9 Mass. 520. These cases shew that the Court issuing the scire facias must be in possession of the record of the recognizance. In all cases such scire, facias must contain an av-erment of those facts which shew the recognizance to have been legally taken and returned to the Court where the party recognizing is bound to appear, and such pro* ceedings of that Court as form the basis of the suit. In the present case, the writ does not state that any complaint was made to the Justice taking the recognizance, nor that any process was pending before him. Neither does the recognizance. Nor have we any facts by which we can ascertain by what authority he demanded and received it. It does not appear that he ha'd rendered any. judgment or passed any order against the party accused, or that any appeal had been claimed by him to the Circuit Court of Common Pleas, nor on what account the recognizance was entered into by the defendant. Nor is there any averment that the same had ever been returned to that Court, so as to become the legal foundation of the present action. In every view the process is defective, and we accordingly adjudge the writ insufficient.
