
    John Chandler and Others versus Beriah W. Smith.
    A bond given by the plaintiffs m replevin was holden sufficient, although bearing date the day after the service of the writ, although executed by two only of four plaintiffs, and although conditioned for a return of the chattels in like good order as when replevied, instead of as when taken.
    
    Replevin of a horse, attached by the defendant, a deputy sheriff of the county of Franklin. Issue was joined in the Common Pleas upon the property in the horse, and found for the plaintiffs. The action being brought by appeal into this Court at the last May term at Greenfield, a motion was made by the defendant to dismiss the suit, on the ground that the bond given by the plaintiffs was not sufficient, within the provisions of * the stat ute.  The cause stood over to this term, by direction of the judge, for the consideration of the said motion by the whole Court.
    [There were four plaintiffs, and the bond was executed by two of them only, and by two sureties. The bond was dated the 29th of October, 1816, and the writ, as appeared by the constable’s return, was served on the 28th of that month; and it was conditioned, among other things, to return the horse in like good order and condition as when replevied, in case such should be the final judgment in the action.]
    
      Mills,
    
    in support of the motion, contended that the writ was conditional, and, until the condition was complied with, the officer had no authority to serve it, and could not justify under it. The condition is that the plaintiff, and, of course, where more than one, that the plaintiffs, shall give bond, &c., to return and restore the chattels in like good order and condition as when taken, &c. 
    
    That the defendant may avail himself of this matter by motion, is laid down by the Court in the case of Cady vs. Eggleston & Al. 
      
    
    
      Alvord, for the plaintiffs.
    The defendant has the personal security of the plaintiffs, without any bond. The object of the statute is that sureties shall be furnished; and those in this case were abundantly sufficient. Where, as in the present case, the owners of chattels wrongfully seized live in distant sections of the country, it would be very absurd that no security, but that of every one of them personally, in addition to sufficient sureties, should entitle them to reclaim their property.
    
      The mistake in the date of the bond is an immaterial circumstance, and can have no operation.
    The slight difference in the phraseology of the bond from that used in the statute, will not be considered a sufficient ground to support the motion, especially as, if the words are not synonymous, all that the plaintiffs should he holden to do is to return the chattels in as *good condition as when delivered to them, not as when taken by the defendant from them.
    But the defendant comes too late with his motion. This can be considered, at most, as an irregularity in the process, but would not support a writ of error on the judgment.
    If, however, the Court should be of opinion that the grounds of the motion are sufficient, and that it was seasonably made, the defendant moves for leave to file a new bond. 
    
    
      
      
        Stat. 1789, c. 25, § 4.
    
    
      
       3 Mass. Rep. 310, Moors vs. Parker Al. — 5 Mass. Rep. 314, Morse vs Hodsdon & Al.
      
    
    
      
       11 Mass. Rep. 285.
    
    
      
      
        Com. Dig., title Pleader, 3, K, 5, cites Mar. 46. — Noy, 156.
    
   Per Curiam.

By the return of the officer upon the writ, it appears that he took a bond from the plaintiffs at the time he replevied the property. The date of the bond is immaterial, if the fact in the return is true; because the bond may have been dated on a different day from the date of the return hy mistake merely. If the truth of the fact can be questioned at all, it can only be on an issue/to the country, upon a plea in abatement. The defendant, having answered fully to the suit, thereby admitting a proper service of the writ, cannot now avail himself of the variance in the date between the service and the bond, upon motion, but must be considered to have waived this exception.

The other grounds of the motion we think wholly untenable, as the spirit and intent of the statute, in requiring security, have been fully attained.

Motion overruled.  