
    Leonard Gifford vs. John R. Whalon.
    The filing of a petition for a review, and the awarding of a supersedeas of the exe cution issued on the judgment in the action sought to be reviewed, are no bar ta maintaining an action on such judgment.
    This was an action of debt in the court of common pleas on a judgment recovered at the December term of that court for the county of Bristol, 1850. An execution was issued on the judgment; but before the service of the execution the defendant had entered in that court his petition for a review of the action in which the judgment was rendered, upon which petition the court issued an order of notice to the plaintiff, returnable at the March term, 1851; and also ordered, that a writ of supersedeas of the execution should issue, upon the defendants’ filing a sufficient bond to be approved by the court, conditioned to pay such sums of money as should appear to be due to the plaintiff upon the final judgment in review. The defendant gave bond according to the order of the court, and the writ of supersedeas issued and was duly served upon the plaintiff before the commencement of this action. At the March term, 1851, after the commencement of this action, the petition for a review was disallowed by the court.
    Upon these facts, the defendant contended and asked the court to rule that the plaintiff could not maintain his action; but the presiding judge (Hoar, J.) declined so to rule, and instructed the jury that the action might be maintained, and directed a verdict for the plaintiff. And to this ruling the defendant excepted.
    
      N. Morton, for the defendant.
    
      H Battelle, for the plaintiff.
   Fletcher, J.

There is no principle of law upon which the position taken for the defendant in this case, that the petition for a review, and the supersedeas thereon, are a bar to this action, can be for a moment maintained. It was said in argument, that there being a supersedeas of the execution .which issued on the judgment, if the plaintiff can maintain this action, he may pursue it to judgment and execution, and thus accomplish indirectly what he could not do directly. But it by no means follows, because the plaintiff can maintain the action, that he can obtain a judgment and execution to the prejudice of the rights of the defendant. The judgment and execution can be postponed in the discretion of the court, if necessary to secure the rights of the parties.

There may be very good reasons why the plaintiff should institute and maintain this action. It was made a point in the argument for the plaintiff, that the bond, which was given to obtain the supersedeas, made no provision for securing the payment of the judgment in the original action, in case no review should be granted, but only for the payment of such sums as should appear to be due after final judgment in the review.

It is apprehended that such bonds are very often defective in this particular. The statute provides, that a petitioner for a review may obtain a supersedeas of the execution, upon giving security to the adverse party, “ to pay whatever shall appear to be due to him, after the fin^l inrlrrmpnt in the review, or upon such other terms as the court shall think, just and reasonable.” Rev. Sts. c. 99, § 22. Although the statute in terms requires security only for what shall appear to be due after the final judgment in the review, yet the broad general provision, “ or upon such other terms as the court shall think just and reasonable,” would seem very clearly to warrant the court, before issuing a supersedeas, to require security for the payment of the judgment, in case no review should be granted, as well as for the payment of what may be found due after the final judgment in the review.

If the bond in this case did not secure the payment of the judgment, in case no review was granted, that would furnish a sufficient reason why this suit should be instituted to obtain that security. Exceptions overruled.  