
    Anna Bingham versus Silas Pepoon and Another.
    A review bond, conditioned to pay the former judgment, with twelve per cent interest, with additional damages and double costs, if the judgment should bn affirmed in whole; and if affirmed in part only, to pay the part unreversed, with six per cent interest, was held good.
    Debt on a bond. The defendants prayed oyer of ihe bond, which was in common form; and of the condition, which, after reciting that the plaintiff had recovered a judgment in an action of trespass on the case, against the said Silas, for the sum of 532 dollars 73 cents damage, and 46 dollars 6 cents costs, and that the said Silas, at the time of rendering the said judgment, informed the Court that he would prosecute a writ of review of the said action, &c., proceeds thus: “ Now, the condition of the foregoing obligation is such, that if the said Silas shall prosecute a review of said action to effect, at, &c., and shall answer and pay to the said Anna the sum recovered as aforesaid, with interest therefor after the rate of twelve per cent, per annum, from the time of making up the judgment aforesaid, with additional damages and double costs, if the judgment aforesaid shall be affirmed in whole, or be not otherwise satisfied; and if affirmed in part only, then shall pay the said Anna what shall remain due to her by force thereof, and shall not be reversed by the judgment that may be given on such review, or otherwise satisfied, together with interest therefor after the rate of six per cent, per annum, without fraud, covin, or delay, then this obligation to * be void and of no effect; otherwise to be and remain in full force and effect.”
    The defendants then demurred generally to the declaration, and the plaintiff joined in demurrer.
    
      Howe,
    
    in support of the demurrer, contended that the condition of the bond was not conformed to the statute.  The words of the statute are — “ shall give bond, &c., to answer and pay to tile original plaintiff for the damages, goods, or chattels, recovered, after the rate of twelve per cent, per annum, being double interest from the time of making up such judgment, with additional damages and double costs, ir case the former judgment shall be affirmed in whole,” &c.
    By this provision, nothing more was to be secured but the interest, additional damages, and double costs. The bond in the case at bar secures all these, together with the original judgment. The intention of the law was to give the defendants a second trial, upon their indemnifying the plaintiff for the damages he should sustain by the review. He lost no security, for the first judgment was not final; and so the attachment, if there was any, was not lost. The judgment was not final, for no execution could issue until the judgment was affirmed. When a plaintiff reviews, no bond is given, and there is no provision for the stay of execution.
    In the sixth section of the statute, which provides for a review by one or more of several defendants, the provision is very different, it being enacted that he or they shall give bond to respond the whole sum given in damages, together with double interest, &c., as before.
    Should it be said that the bond, though not conformed to the statute, may yet be good at common law, it is answered, that, if not agreeable to the statute, it is void, as being against the statute of usury. The plaintiff, it is true, had a right to whatever security she originally had on the first suit, and to twelve per cent., but not to a new security, both for her debt and the double interest upon * it. Here was an absolute engagement to pay a debt and interest at twelve per cent, in one case, and six per cent, in another. The contingency went only to affect, not the whole interest, but the rate of interest; and where the casualty goes to the interest only, and not to the principal, it is usury.
    It is no answer that the statute allows twelve per cent., because the plaintiff has not conformed to the statute, and therefore the bond must be considered without reference to the statute. A bond to secure the twelve per cent, interest, without the principal, would be good.by the statute; and a bond to secure the principal, without the twelve per cent., would be good at common law. But they cannot be united, to secure to the plaintiff the benefit of both.
    
      Ashmun,
    
    for the plaintiff, was stopped by the Court.
    
      
      ]) Stat. 1786, c. 66, § 5.
    
   Curia.

The judgment in the first suit is a final judgment, although no execution can issue, and of consequence the attachment in the original suit, if there was one, is lost by the review.

It would be absurd to suppose that the legislature intended to impair the rights of the parties. We must, therefore, consider the bond as good, nor does the provision of the statute appear to us unreasonable.

The using of different language in different sections of the statute, seems to have been the effect of accident or inattention, as the two cases supposed afford no ground for a distinction. Let judgment be entered for the plaintiff,

Declaration adjudged good. 
      
      
        [Bacon vs. Otis, 11 Mass. Rep. 407. -Ed.]
     