
    Ephraim Lindsay versus Abel Blood.
    To an action of debt on a replevin bond, the condition of which was that, it toe plaintiff in replevin should prosecute his writ to final judgment, pay such damages and costs as shall be adjudged against him, and return the cattle, then, &c., — the defendant pleads that there has been no final judgment that he should return the cattle, or that he should pay damages or costs; and the plea was adjudged bad.
    Debt on bond. The defendant prays oyer of the bond, and of the condition, which is as follows: The condition of the above obligation is such that whereas the said Blood hath * commenced an action of replevin against the said Lind- [ *519 ] 6ay for two oxen said to be detained by the said L. in, &c., as in the writ, &c., is set forth, which action is to be heard and tried at, &c.: now, if the said B. shall prosecute the said replevin to final judgment, and pay such costs and damages as the said L. shall recover against him, and shall also return the said cattle, in case such shall be the final judgment, then this obligation to be void; otherwise,” &c.
    The defendant then pleads in bar that there never has been any final judgment that he should return said oxen to the said L., and that the said L. has not in said action recovered judgment against him for any costs or damages.
    The plaintiff replies that, at the Supreme Judicial Court holden, &c., he prosecuted the said action of replevin to final judgment by entering his complaint, and recovered on said complaint judgment against the said B. for a return of the said oxen, 1 dollar damage and costs taxed at 18 dollars 16 cents, which judgment is in full force, — “ and this the said L. is ready to verify by the record in such manner as the Court shall order.”
    To this replication the defendant demurs, and the plaintiff joins in demurrer.
    
      Todd for the plaintiff.
    
      Rice for the defendant.
   By the Court.

Without considering the merits of the replication, the plea in bar is clearly bad. One part of the condition of the bond is that the defendant, who was the plaintiff in replevin, shall prosecute his replevin to final judgment. In this bar he does not allege that he prosecuted his replevin, nor does he plead any excuse or justification for not doing it. Indeed, from the replication, which in this action he has demurred to, it appears that he did not prosecute his replevin to final judgment, but that the defendant in replevin obtained judgment on complaint filed.

As the defendant’s bar is bad, judgment must be rendered that the replication is a good and sufficient answer to it. 
      
      
        Sevey vs. Blacklin & Al. post, 541.
     