Sargent, J.
The language of the statute which prescribes the magistrate’s duties in cases like this, is as follows: “The justice shall make out a certified copy of the process and records in the cause, and file the same with the clerk of said court on or before the first day of the next term thereof.” Rev. Stat., ch. 222, sec. 4; Comp. Laws 564. The first three causes of demurrer assigned have reference to the provisions of this statute, which, the defendant claims, are peremptory in their requirements, and must be strictly followed in order to bind him; and he claims that it should be alleged in the declaration, as well as appear of record, that all said requirements have been complied with; and we may as well consider those three-causes of demurrer with the fourth together.
It is averred that the copy of the recognizance, with the other copies in the case, was duly returned to and filed iii said Supreme Judicial Court, and is now a record of the same. Now this could not have been done unless such copy had been returned to and filed with the clerk of said court, and the objection that it is not averred that said copies were returned to the clerk, can not prevail. The same averment in the declaration is a sufficient answer to the fourth objection. The objection that- it is not averred that such copy was returned on the first day of the term, can not prevail. The statute makes it the duty of the magistrate to return the copies on or before the first day of the next term, and if he fails to comply with this requirement, he may, perhaps, make himself liable, as in Ex parte John Neal, 15 Mass. 205, where a justice was fined five dollars by the court for neglecting to return a recognizance taken before him, he not having delivered the same until "Wednesday, the second day of the term; and though present in court, having given no sufficient excuse for his negligence, he was ordered to be committed until said fine was paid.
But the fact that the copies were not received until the second day of the term would not discharge the respondent from his obligation to appear. If the respondent was at court, waiting to be [604]*604called, and no copies were filed, and no one appeared to move against him, he should call the matter to the notice of the court, and move to be discharged; and though he would not ordinarily be discharged at once, yet the court, after waiting a reasonable time for inquiry, and for the copies to arrive, or to be sent for if necessary, and they did not come, would discharge him and order a record thereof to be made, showing that he had appeared, and, on motion, been discharged. But if a respondent did not appear at all, it could make no difference to him whether the copies were there the first day or not till the last day of the term; and if the copies came in the last day, and the respondent had not been discharged on motion before that, it would be in season to have him called, and the record of forfeiture then made.
We do not intend to decide that if the State’s counsel, having knowledge of the recognizance, should order the respondent called and have his default recorded, without any copies, and they should afterward be received during the same term, the respondent might not be held. Nor do we mean to be understood that if in such a case the forfeiture had been properly entered of record at the proper term, and no copies furnished at that term, leave might not .be obtained at a subsequent term to file the copies, as of the former term, and then a scire facias issue and the respondent be held. These questions do not now arise. But ordinarily the copies must be returned at the term at which the respondent recognized to appear, and scire facias, or the declaration in debt, should aver that such was the fact. This declaration should be amended in this particular.
The second objection is not well taken. The declaration follows the words of the statute, which require the justice to make out “a certified copy of the process,” &c., and a copy can not well be certified by any one but the person having the original record. This objection can not prevail.
The fifth cause of demurrer is well taken. After stating the proceedings in the police court, and the taking of the recognizance, and the filing of the same in this court, they should all have been referred to with a prout patet per reeordum. It is held that the default must not only appear of record, but that it must be alleged in the declaration that the same appears of record. Bridge v. Ford, 4 Mass. 641; S. C., 7 Mass. 209; Commonwealth v. Downing, 9 Mass. 520; State v. Chesley, 4 N. H. 369; People v. Van Eps, 4 Wend. 387; State v. Kinney, 39 N. H. 138, and cases cited. This declaration avers that the default of the principal and the sureties appears of record, and in this respect is correct. But this sentence is so disconnected from the preceding one, that the averment prout patet per reeordum can refer only to the default. Sometimes the declaration may be so connected as that this reference to the record may cover all the ground, both of former proceedings and the filing of the copies, as well as the default. State v. Dowd, 43 N. H. 454. But here it is not so. This averment can not refer to the preceding sentences, in which it is averred that the recognizance was taken, and a copy of the same filed in this court, and was now a record of the same.
[605]*605But it is as necessary to refer to this part of the record, with a prout patet per recordum, as it is to the default and the record of the same. “In debt on a judgment, or other matter of record, unless where it has been stated as inducement, it is necessary, after showing the matter of record, to refer to it by the prout patet per recordum. But the omission will be aided unless the defendant demur.” 1 Chit. Pl. 137. In this case the record of the recognizance in this court, is not stated as inducement, but is one of the main pillars on which the action rests. .In this case the plea must be nul tiel record,. The common form of a declaration in debt upon a judgment, is an illustration of the principle involved. Here a demurrer is interposed, and we think the declaration defective in this particular. Stevenson v. Grant, 5 Bos. & Pul. 103; also, Form of Declarations on Recognizances, 2 Chit. Pl. 472, et seq.; 2 Saund. Pl. & Ev. 750, et seq.; Waits v. Briggs, Salk. 565; Coke Litt. 303, a.
The sixth and seventh causes of demurrer raise the question of variance between the terms of the order of the police court, and the terms of the recognizance as taken. The order of the. court was, that the respondent appear at the trial term, &c., and abide the order of said court. The terms of the recognizance were, that said respondent make his personal appearance at the court, &c., and then and there answer to all such matters and things as may be objected against him in behalf of said State, and there wait and abide the order of said court, aéd not depart without leave of said court, &c. The recognizance contains many more words than the order, but the substance of the whole is, that the respondent shall appear at a particular term, and abide the order of said court.
In State v. Chesley, 4 N. H., supra,
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Sargent, J.
The language of the statute which prescribes the magistrate’s duties in cases like this, is as follows: “The justice shall make out a certified copy of the process and records in the cause, and file the same with the clerk of said court on or before the first day of the next term thereof.” Rev. Stat., ch. 222, sec. 4; Comp. Laws 564. The first three causes of demurrer assigned have reference to the provisions of this statute, which, the defendant claims, are peremptory in their requirements, and must be strictly followed in order to bind him; and he claims that it should be alleged in the declaration, as well as appear of record, that all said requirements have been complied with; and we may as well consider those three-causes of demurrer with the fourth together.
It is averred that the copy of the recognizance, with the other copies in the case, was duly returned to and filed iii said Supreme Judicial Court, and is now a record of the same. Now this could not have been done unless such copy had been returned to and filed with the clerk of said court, and the objection that it is not averred that said copies were returned to the clerk, can not prevail. The same averment in the declaration is a sufficient answer to the fourth objection. The objection that- it is not averred that such copy was returned on the first day of the term, can not prevail. The statute makes it the duty of the magistrate to return the copies on or before the first day of the next term, and if he fails to comply with this requirement, he may, perhaps, make himself liable, as in Ex parte John Neal, 15 Mass. 205, where a justice was fined five dollars by the court for neglecting to return a recognizance taken before him, he not having delivered the same until "Wednesday, the second day of the term; and though present in court, having given no sufficient excuse for his negligence, he was ordered to be committed until said fine was paid.
But the fact that the copies were not received until the second day of the term would not discharge the respondent from his obligation to appear. If the respondent was at court, waiting to be [604]*604called, and no copies were filed, and no one appeared to move against him, he should call the matter to the notice of the court, and move to be discharged; and though he would not ordinarily be discharged at once, yet the court, after waiting a reasonable time for inquiry, and for the copies to arrive, or to be sent for if necessary, and they did not come, would discharge him and order a record thereof to be made, showing that he had appeared, and, on motion, been discharged. But if a respondent did not appear at all, it could make no difference to him whether the copies were there the first day or not till the last day of the term; and if the copies came in the last day, and the respondent had not been discharged on motion before that, it would be in season to have him called, and the record of forfeiture then made.
We do not intend to decide that if the State’s counsel, having knowledge of the recognizance, should order the respondent called and have his default recorded, without any copies, and they should afterward be received during the same term, the respondent might not be held. Nor do we mean to be understood that if in such a case the forfeiture had been properly entered of record at the proper term, and no copies furnished at that term, leave might not .be obtained at a subsequent term to file the copies, as of the former term, and then a scire facias issue and the respondent be held. These questions do not now arise. But ordinarily the copies must be returned at the term at which the respondent recognized to appear, and scire facias, or the declaration in debt, should aver that such was the fact. This declaration should be amended in this particular.
The second objection is not well taken. The declaration follows the words of the statute, which require the justice to make out “a certified copy of the process,” &c., and a copy can not well be certified by any one but the person having the original record. This objection can not prevail.
The fifth cause of demurrer is well taken. After stating the proceedings in the police court, and the taking of the recognizance, and the filing of the same in this court, they should all have been referred to with a prout patet per reeordum. It is held that the default must not only appear of record, but that it must be alleged in the declaration that the same appears of record. Bridge v. Ford, 4 Mass. 641; S. C., 7 Mass. 209; Commonwealth v. Downing, 9 Mass. 520; State v. Chesley, 4 N. H. 369; People v. Van Eps, 4 Wend. 387; State v. Kinney, 39 N. H. 138, and cases cited. This declaration avers that the default of the principal and the sureties appears of record, and in this respect is correct. But this sentence is so disconnected from the preceding one, that the averment prout patet per reeordum can refer only to the default. Sometimes the declaration may be so connected as that this reference to the record may cover all the ground, both of former proceedings and the filing of the copies, as well as the default. State v. Dowd, 43 N. H. 454. But here it is not so. This averment can not refer to the preceding sentences, in which it is averred that the recognizance was taken, and a copy of the same filed in this court, and was now a record of the same.
[605]*605But it is as necessary to refer to this part of the record, with a prout patet per recordum, as it is to the default and the record of the same. “In debt on a judgment, or other matter of record, unless where it has been stated as inducement, it is necessary, after showing the matter of record, to refer to it by the prout patet per recordum. But the omission will be aided unless the defendant demur.” 1 Chit. Pl. 137. In this case the record of the recognizance in this court, is not stated as inducement, but is one of the main pillars on which the action rests. .In this case the plea must be nul tiel record,. The common form of a declaration in debt upon a judgment, is an illustration of the principle involved. Here a demurrer is interposed, and we think the declaration defective in this particular. Stevenson v. Grant, 5 Bos. & Pul. 103; also, Form of Declarations on Recognizances, 2 Chit. Pl. 472, et seq.; 2 Saund. Pl. & Ev. 750, et seq.; Waits v. Briggs, Salk. 565; Coke Litt. 303, a.
The sixth and seventh causes of demurrer raise the question of variance between the terms of the order of the police court, and the terms of the recognizance as taken. The order of the. court was, that the respondent appear at the trial term, &c., and abide the order of said court. The terms of the recognizance were, that said respondent make his personal appearance at the court, &c., and then and there answer to all such matters and things as may be objected against him in behalf of said State, and there wait and abide the order of said court, aéd not depart without leave of said court, &c. The recognizance contains many more words than the order, but the substance of the whole is, that the respondent shall appear at a particular term, and abide the order of said court.
In State v. Chesley, 4 N. H., supra, under a statute authority “to take security by way of recognizance of the person for his appearance at eouz’t,” the cozzdition of the recognizance was that he should appear at the court, answer to a cez’tain complaint, not depart without leave, but abide the order of the court; and it was there held, that the recognizance, as stated, aznounted in substance ozily to this, that the respondent sliould be ready in court to answer whezz called to z'eceive any order the court might make in the cause. So in this case, we think there is no substantial difference betweezi the terms of the order and those of the recognizance. People v. Stager, 10 Wend. 431. Thez’e is no questioiz but that the order and the recognizance were in terms alike for the appearance of the respondent at a certain term of the coui’t, at which he did not appear but made default. A quaere might well arise whether the recognizance would not be good and valid, so far as it followed the order, even though there might, in other matters, be a vazúance so wide that the recognizance might in those particulars be held to be void.
The eighth cause of demurrer has no substantial foundation in fact. Ninth. If either Wiggin or Davis had brought izz the body of said Farrar, they would not both have made default as it is alleged they did. Tenth. It is entirely immaterial, what day in the term said Fan’ar or said Wiggin and Davis were called. It may as well have been the last day of the term as the first., or any other day, provided the respondent had not, on motion, been discharged. And, [606]*606although the form of the declaration might perhaps he improved by alleging that the respondents were three times solemnly called, in open court, yet we think the allegation here must be held sufficient. Eleventh. It is entirely immaterial whether Sawyer brought the copies to court himself or sent them by another. If the copies were duly received by the clerk that is sufficient.
The demurrer is therefore sustained for the third cause assigned, so far as that it is not stated at what term of this court the copies were returned; and also for the fifth cause. There should be inserted, at the point indicated by brackets in the case, these words : “All which by the record thereof now remaining in said court more fully appears.”
The declaration might be improved in form perhaps, in various other respects, but these are all the defects that seem essential, and although they would be cured by verdict if not demurred to, yet upon demurrer we must hold the declaration bad in these particulars.
Demurrer sustained.