By the Court,
Savage, Ch. J.It is contended that the plaintiff should have shewn that his suit in the common pleas was commenced, in point of time, anterior to the next term of the common pleas, after the date of the recognizance. The word before is used in the statute to designate the tribunal or forum where the cause shall be prosecuted, and the word next designates the time when the suit shall be brought. The latín word coram, and not ante, would express the meaning of the legislature in that part of the statute which directs the contents of the recognizance. There is nothing in the opinion of Mr. Justice Platt, in Brown v. Van Buzen, 11 Johns. R. *671472, 3, which maintains a contrary construction ; the point now under consideration was not raised in that case, nor considered by him. In this case the suit was brought, as I infer, at the next term of the common pleas, but the writ was not issued until the term had commenced. That was enough.
The capias was in trespass, and that was all that need be stated therein, though the practice is to insert an ae-etiam clause.
The filing a bail piece without giving notice to the plaintiff’s attorney is not putting in bail within the meaning of the recognizance. The phrase putting in bail is technical, and has a legal meaning which is well understood. The plaintiff is not bound to know that special bail has been filed without notice. 6 Cowen, 608. The case of Cairnes v. Hunt, 8 Johns. R. 358, was different. There notice had been given of one real and one fictitious person, and the plaintiff treated it as a nullity, which the court said he could not do; that his proper course was to except. But here no notice was given, and the plaintiff was not bound to except, because he did not know that any bail had been filed.
The plaintiff was entitled to a general verdict, according to the former practice. The revised statutes, 2 R. S. 378, do not affect proceedings upon recognisance; they specify bonds for the breach of a condition other than for the payment of money. At page 485, § 29, recognizances to the people are directed to be prosecuted by action of debt for the penalty, and proceedings are to be the same, as in personal actions for the recovery of any debt, except that it shall not be necessary to allege or prove damages by reason of a breach of the condition of such recognizance; but on such breach being found or confessed, judgment shall be absolute for the penalty. The personal actions here referred to must be debt on bond, with condition other than the payment of money.
I am inclined to the opinion that the penalty of the recoge nizance was what the legislature intended should be recovered ; the revised statutes have directed a bond to be taken in such cases, instead of a recognizance.
Judgment affirmed,