Warner v. Howard , 121 Mass. 82 ( 1876 )

Devens, J.

While, by the Rev. Sts. c. 104, § 10, it is provided that in cases similar to the present the defendant “ shall recognize to the plaintiff with sufficient surety or sureties not only to enter the action, but also to pay all rent then due and all intervening rent, damages and costs,” the words “ in such rear sonable sum as the court shall order,” which existed in the St. of 1825, c. 89, § 2, from which this provision is taken, are omitted. There is a similar omission in the Gen. Sts. c. 137, § 9. It is contended by the plaintiff that such a recognizance should not now be taken in a penal of specific sum. There is no suggestion made, in the report of the commissioners on the Rev. Sts., of any intention to alter the form of the recognizance, nor in our opinion was such alteration made by enacting the statute with this omission.

The remedy provided by the Rev. Sts. was that which had before been in use by scire facias, or the action of debt. The action of debt was a suitable remedy only where the demand sued was for a sum certain, or was a pecuniary demand which could readily be reduced to a certainty. 1 Chit. PL (6th Am, ed.) 128. It was appropriate therefore, if there was a specific sum for which judgment was to be rendered, but not so if that sought to be recovered was in whole or in • part unliquidated damages.

A recognizance is an obligation of record, entered into before a court or magistrate duly authorized for that purpose, with a condition to do some act, required by law, which is therein specified. 2 Bl. Com. 341. And it is said by Mr. Dane, “ Our recognizance is taken in court or before a magistrate, and is a contract voluntarily entered into in a certain sum attested by the clerk or magistrate.” 5 Dane Ab. 277. No recognizance is known to us in use in this Commonwealth, which is not for a sum certain, although the recognizance for a debt is not for a penal sum, but for the payment of the debt itself. Gen. Sts. c. 152.

For two reasons, the sum, in which such a recognizance as this is taken, should be specific: First, that the sureties should know the extent of their liability. Second, that the court or magistrate who is to determine whether the sureties offered are sufficient should first ascertain the liability to which they are to be subjected.

This" is not such a case as those in which it has been held that the recognizance was good against the defendant, because he had been placed under a less obligation than that which might legally have been required of him. Shaw v. McIntier, 5 Allen, 423. Instead of a definite demand, the principal defendant was here required to find sureties for one which was undefined.

Judgment for defendants affirmed.