The declaration is bad, for not averring that the *259recognizance was returned to the court of common pleas ; without proof of that fact the plaintiff could not recover. TarbelL v. Gray, 4 Gray, 445, & cases cited. Bowler v. Palmer, 4 Gray, 445, note. This objection, as the cases just cited show, should regularly have been taken by demurrer. But, as it appears by the record that the case was submitted to the decision of the court below, without averment or proof of this material fact, the judgment for the defendant must be affirmed.

Judgment for the defendant.