¶1The opinion of the court was delivered by
¶2When a bond of recognizance is required by law to be taken, the authority is to take it in due form of law and is supposed to make a record thereof, at full length, and to preserve the same. Of this, when applied for, a copy is furnished, which is used in court. In case of the issue of the ordinary process of summons or attachment, the statute requires that the plaintiff shall give a recognizance conditioned “ that the plaintiff shall prosecute his writ to effect, and shall answer all damages if a judgment shall be rendered against him, a minute of which recognizance, with the name of the surety, and the sum in which they are bound, shall be made on the writ, and signed by the authority, otherwise the same shall, on motion, abate.” This minute is not the recognizance. It is a mere memorandum or certificate that a recognizance has been taken. It does not contain the condition of the recognizance. It need only contain the names and amount. The absence of this minute would never be ground of abatement, were it not for the absolute provision of the statute, in such case. Were it not for that, the courts would always permit it to be amended, provided a recognizance were actually taken, so that it could be amended with truth.
¶3The present case has been argued as if the writ of audita querela stood upon the same footing, and subject to the same law. Even if this were so, we do not discover that this minute is insufficient. It contains the name of the per*591son recognised, and the sum in which he was bound and the rest may be treated as surplusage. In ordinary cases the statute requires that the recognizance shall be to pay all damages, yet the minute always is “ to insure costs of prosecution,” and such is the form given in the statute of forms.
¶4But the statute regulating audita querela is contained in the statute regulating judicial proceedings, sec. 11, page 61, and is entirely different from ordinary writs. It provides that a recognizance shall be taken, the condition of which differs in different cases. It does not, in terms, require that any minute of the. recognizance shall be made on the writ, nor provide that the writ shall abate for want thereof. It may, therefore, much be doubted whether the want of a minute be any ground of abatement.
¶5Judgment affirmed.