
    Ebenezer Hovey vs. Hiram Coy & als.
    
    Where an action of replevin was tried upon the general issue, and a verdict was given in favor of the defendant, and judgment rendered thereon for costs, but not for a return of the property; and execution was issued against the plaintiff in replevin, and he was arrested thereon and committed to prison, and was released therefrom by taking the poor debtor’s oath ; the replevin bond is thereby forfeited, and on judgment for the penalty, execution is to issue for the amount of the costs and interest.
    Debt on a replevin bond. From facts agreed by the parties, it appeared, that the original action of replevin in which the bond was taken, was tried on the plea of non cepit only, and the verdict of the jury was for the defendant in replevin. There was no judgment for a return, but merely for costs for the defendant. Upon this judgment execution was duly issued against the plaintiff in replevin, and he was arrested thereon-, committed to prison, and was released upon taking the poor debtor’s oath. If the plaintiff is entitled to recover, the defendant is to be defaulted, and execution is to issue for such amount as the Court shall direct; otherwise the plaintiff is to become nonsuit.
    The case was submitted without argument by
    Fose &/• Lancaster, for the plaintiff, and by Williams &f McCobb, for the defendants.
   The opinion of the Court was by

Shepley J.

The statute c. 63, § 9, provides, that the plaintiff in replevin shall give bond to prosecute the replevin to final judgment; to pay such damages and costs as the defendant shall recover against him ; and to restore the. goods in case such shall be the final judgment. He has not performed that part of the condition of his bond, which required him to pay the costs. The bond secures a return of the goods only, when the defendant in replevin has obtained a judgment for a return. The bond has become forfeited by the neglect to pay the costs. The defendants are to be defaulted, and judgment is to be entered for the penalty, but execution can issue only for the amount of costs with interest.  