
    Moses Taft, Appellee, against The Executors of John Tharp, Appellants.
    In issuing a writ of audita querela, the Judge of the County Court, taking the recognisance, must make record of the same ; but it is sufficient that he minutes on - dollars, to pro. the -writ, “that A. B. &c. recognised to the defendant in the sum of — secute the above writ in due form of law, before,” &c.
    
      'AUDITA QUERELA.
    The writ was allowed and signed by two Judges of the County Court. Below the writ the following minute was made:
    
      le John Palmer and Jonathan Green recognised to the defendant in the sum of 1,000 dollars, to prosecute the above writ in due form of law. Before me,
    
      “ Lemuel Bottom,
    
    “ Judge of the County Court.”
    Counsel lor the defendants moved for a rule upon the plaintiff’ to shew cause why the process should not be quashed, because the recognisance was not taken agreeably to the statute.
    Rule granted.
    Section 11th of the judiciary act provides, “that in cases proper for issuing an audita querela, the same, if judgment was rendered in the Supreme Court of Judicature, shall be allowed and signed by a Judge of the same Court. But if the judgment was rendered in the County Court, the said writ shall be allowed and signed by two Judges of the Court last mentioned, and sufficient security shall be taken by the Judge, or one of the Judges allowing the writ, for the redelivery of the body or estate (as the case may be) to the custody of the officer having the same in possession, if the same shall be awarded, and pay all intervening damages and costs, and, in default thereof, the payment of the debt, damages and costs; or in cases when neither body or estate shall be taken in execution, the recognisance shall be conditioned for the payment of intervening damages and costs, if the complainant shall fail to prosecute to effect.”
    Defendant’s counsel. Here the recognisance is taken “ to prosecute the above writ,” not to redeliver the body or estate to the custody of the officer having the same in his possession, if the same shall be awarded, and to pay all intervening damages and costs, and in default thereof to pay the debt,, damages and costs, as the statute had in this case provided.
    
      Daniel Chipman and Amos Marsh, for plaintiff.
    
      W. C. Harrington, for defendants.
   Sed per Curiam.

When a writ of audita querela is made returnable to the County Court, it is the duty of one of the Judges signing the same to take a recognisance conformable in all respects to the statute, and to make a record of the same, which the Court will intend was done in the present case. The Judge taking such recognisance must be always prepared on request to make out and certify a copy of his record, and such copy is always proferted in the declaration upon the recognisance. These are duties in the Judge. There is another distin§£ duty to be performed by him, provided by the 44th section of the same act, and that is to enter upon the writ a minute of the recognisance, with the name of the surety or sureties, and the sum in which they are bound, which minute is to be signed by him at the time of the signing of the writ.

The Judge here appears to have complied literally with this part of his duty.

By the expression “ in due form of law,” he -notified the defendants, that the recognisance-by him before .taken and recorded was conformable to the provision of the statute.

Rule discharged.  