The recognizance offered in evidence to support this action does not operate to bind the principal Nickerson, or his surety Field. Separate recognizances were ordered to be taken of the two persons, Nickerson and Smith, for their appearance at May term 1862, to answer to an indictment found against them and Caleb B. Watts. This recognizance, as extended and returned by the commissioner, purports to be a joint obligation of the two principals, Nickerson and Smith, binding both for the personal appearance of both, and the condition could only be saved by the appearance of both persons. Nickerson could only be required to recognize with surety for his own personal appearance, and not also for the appearance of his co-defendant in the same indictment.

A recognizance requiring more than is authorized by law ia invalid. Newcomb v. Worster, 7 Allen, 198. This recognizance, being invalid in this form as to the principal, is also invalid as to the surety.

The objection to the legality of this recognizance, in the form in which it is certified, is open upon this bill of exceptions.

Without expressing any opinion upon other questions raised by the defendant, we think, for the cause already assigned, the exceptions must be sustained.

Exceptions sustained.