
    Pettygrove vs. Hoyt & al.
    
    A sued out a writ of replevin against B and gave bond in the form prescribed by law, but neglected to enter his writ at the term of the Court to which it was returnable; whereupon B ♦filed a complaint for his costó, omitting therein to pray for a return of the goods. Execution issued for the costs only, and was satisfied; and then B brought his suit upon the replevin bond. — Held that the action could not be maintained.
    In this action, which was debt on a replevin bond, the parties agreed on the following statement of facts. Hoyt, the present defendant, sued out his writ of replevin against Pettygrove, for a schooner boat, the value of which, as stated in the writ and bond, was ^175. The writ was duly served on the execution of the bond now put in suit, which was in the form prescribed by statute ; and the boat was thereupon delivered to Hoyt. The writ of replevin was not entered at the term of the Court to which it was made returnable, and Pettygrove filed a complaint for costs, but made no claim in it, for a return of the boat. No return was ordered by the Court; —■ no writ of return issued; — and no return was ever in fact made. Execution issued in favor of Petty-grove for his costs, which were paid by Hoyt.
    
    If upon these facts, the Court should be of opinion, that there had been a breach of the bond, it was agreed, that the defendants' should be defaulted, and the damages assessed by the Court.
    
      
      A. G. Chandler, for the plaintiff.
    The case presents two questions. 1. Whether there has been a breach of the condition of the bond, and if so, then 2. what should be the measure of damages.
    It is contended, that as the original plaintiff in replevin did not enter his action in Court, he did not prosecute it to final judgment, which, it is a condition of the bond he should do; and that thereby the condition of the bond has been broken. Here then the question arises, what is prosecuting said replevin suit to final judgment within the meaning of the condition of the bond ?
    The mode of proceeding in replevin suits, is in several respects different from all others. One of no slight importance is, that before judgment and determination in whom the right in the property in question is, it invades or disregards the apparent right, and title, that which pertains to the possession; takes it from the possessor and transfers it to one merely claiming it as his without any evidence of title. To prevent the gross abuses and injustice which would otherwise result from this course, the law makes it a condition precedent to the disturbance of the possession and to the delivery of the property to the plaintiff in replevin, that he shall undertake to procure a decision, a judgment of Court in his action, upon the question, to whom does the property rightfully belong. The law goes far in changing the possession of the property, before it is known to whom it belongs, and is careful to make provision that the wrong, if any thereby has been done, shall be corrected by him who caused it. He must therefore give bond, to proceed in said action and to procure a final judgment therein.
    Such being the object of the law, it would seem to follow that the final judgment contemplated should be such an one as would make an end of the question in the suit.
    True, it is said in Badlam v. Tucker, I Pick. 286, that any judgment, is a final judgment, which terminates the suit, whether on the merits or not. This may be true in one sense, but not without some qualification or limitation in the sense in which that expression is used in the bond; for it is said on the same page that neither a judgment on nonsuit, or discontinuance, is a final judgment within the meaning of the bond, though they both terminate the suit.
    What that qualification or limitation is, is implied, in part at least, in the language used in the condition of the bond. It is to “prosecute, the said replevin to final judgment.” The plaintiff in replevin is to prosecute, by his proceeding to procure, and obtain the rendition of a judgment, final in the suit. Not that there shall be a judgment in consequence or resulting from his not prosecuting or proceeding. Hence the judgment on nonsuit and discontinuance are not such judgments as are intended, in the condition of the bond. The object in requiring the plaintiff in re-plevin to prosecute to final judgment, shows that judgments on nonsuit and discontinuance are not such as the bond contemplates. On the rendition 'of such judgments the bond is forfeited. Much more then is the bond forfeited, when the plaintiff in replevin omits to enter his action in Court, so that there is no judgment whatever “ in said replevin suitfor the judgment of Court for defendant’s cost in a complaint filed therefor, is not a judgment “ in said replevin suit;” for that suit is not then in existence, and this judgment for cost, is rendered because it is not in existence.
    In England, the requisition in replevin suits is “ to prosecute with effect,” and this has been construed to be synonymous with ours “to prosecute to final judgment.” Dane’s Ahr. ck. 171 a. 6, sec. 1; Badlam v. Tucker, 1 Pick. 286; Carthew, 519 ; 2 Selwyn’s N. P. 1117, note 8.
    
      Mr. C. then discussed at some length the question of damages.
    
      Bridges, for the defendant,
    cited Maine Stat. ck. 80, sec. 4; Bruce v. Learned, 4 Mass. 618; Ladd v. North, 2 Mass. 516; Arnold v. Allen and al. 8 Mass. 150; Turner v. Turner, 2 Brod. and Bing. 37; Badlam v. Tucker, 1 Pick. 286.
   The opinion of the Court was delivered by

' Mellen C. J.

’The condition of the bond declared on is in the legal form; namely, that Hoyt, the plaintiff in the action of replevin, should prosecute the said replevin to final judgment, and pay such damages and costs as the said Pettygrove should recover against him; and also return and restore the boat replevied, in like good order and condition, as when taken, in case such should be the final judgment. In the 4th section of ch. 80 of the revised statutes it is enacted, among other things, that “ in case the plaintiff in replevin shall neglect to enter and prosecute the suit, the defendant may, upon complaint, have judgment for a return and restoration of the goods and chattels replevied, and the damages for the taking, to the amount of six per cent, on the bond, with reasonable costs.” The bond is given with sureties to secure to the defendant in replevin the complete execution of the judgment which he may recover against the plaintiff. The judgment and execution thereon are sufficient to compel the plaintiff to do justice, if he has property to pay damages and costs, and to obtain a return and restoration of the property replevied, if not eloigned; but in failure of a satisfaction of the judgment by statute process, the bond must be resorted to, in order to reach the sureties, and compel them, to pay damages, equal to the injury sustained, by the neglect of the principal to satisfy the judgment in all respects. The sureties are bound to perform what the principal was adjudged to perform, or must pay damages as an equivalent for performance. It is a familiar principle that the Court cannot enlarge or vary the condition of the bond. The view we have thus taken will simplify the cause and lead us in a direct course to the legal conclusion. We have seen by the part of the 4th sec. above quoted, that Pettygrove was entitled, upon his complaint to a judgment for a return of the boat, for damages and costs, because the original plaintiff neglected to enter and prosecute the replevin : but for some reason, ho prayed and had a judgment for costs only. The Court observe, in the case of Badlam v. Tucker, 1 Pick. 284, “ whenever the defendant in replevin is entitled to a return, he should move for it on the rendition of such judgment.” It is very clear that a nonsuit or a discontinuance is a broach of the condition of the bond : and so also is a failure to enter and prosecute the action : for the original plaintiff was not prevented by the act of God, as by death. But though the condition of the bond was thus violated, the question is, whether the present action is maintainable, in the peculiar circumstances of the case ; the judgment for costs having been satisfied, and no judgment for a return or for damages having ever been rendered. As we have stated before, by the condition, the obligors were bound to pay the obligee such damages as he should recover, and he recovered none; and return the boat, if such should be the final judgment; and there never was any such judgment. All these facts are placed before us in the simple form of a statement of facts ; and all are to be considered upon their merits, without any reference to form, or technical learning ; and notwithstanding the labored argument of the plaintiff’s counsel, we are unable to find any solid ground on which the action can be sustained. —Accordingly a nonsuit must be entered.  