
    Joseph N. Arnold versus Joseph Allen and Joseph Allen, Jun.
    The condition of a replevin bond was to prosecute the action at the county court, next to be holden at, See., rightly describing the next term of the Common Pleas, and held good.
    To a replevin bond, the defendant pleads m bar, that he duly entered his action' at the Common Pleas, and prosecuted it with effect; that, upon a judgment there, an appeal was interposed by the plaintiff in replevin; that the creditor, at whose suit the chattels had been attached, had received full satisfaction for his damages and costs, and that the officer, plaintiff in the action on the bond, had been indemnified, and kept harmless, &c.; and, on demurrer to this plea, the defend ant had judgment.
    Debt on bond. Upon oyer it appeared that the bond was made to the plaintiff, as a deputy sheriff of the county of Norfolk, with the following condition, viz.: “ The condition of the above obligation is such, that if the above bounden J. A. and J. A., Jun., do appear at the next county court to be holden at Dedham, within and for the county of Norfolk, aforesaid, on the last Tuesday of September next, and then and there prosecute his action with effect against the said Arnold, for taking and detaining in his custody” [certain oxen and other chattels described,] “ and do make a return thereof, if a return shall be adjudged by law; and also to keep harmless and indemnify the said Arnold, for touching and concerning the replevying and delivery of the said oxen, &c.; then the above obligation shall be void; otherwise remain in full force and virtue.”
    * After oyer, the defendants plead in bar, that before the execution of the bond declared on, the plaintiff held and detained the goods and chattels mentioned in the condition thereof as a deputy sheriff, on writs against one David Holbrook, at the suit of one N. P. Hewes; that the said bond was made and given to the plaintiff in his said office, for the sole use and benefit of said Hewes, to whom all moneys by the plaintiff thereon to be recovered by way of damages were by law to be paid over; and that the defendants, on the said last Tuesday of September, appeared at the county court, being the Court of Common Pleas, then holden at Dedham, within and for the county of Norfolk, and prosecuted the said Joseph’s action with effect against the plaintiff for the taking and detaining in his custody the chattels aforesaid ; and thence the said action was continued to the then next term of said court, when and where the plaintiff had judgment for his costs of suit only, without damages or a return awarded; from which judgment the said Joseph Allen appealed to the then next Supreme Judicial Court, and recognized, &c. The plea then avers that Hewes had received full satisfaction for all the damages and costs recovered by him in his suits against Holbrook, and had discharged the plaintiff from his liability under and by virtue of said suits, and the executions issued thereon ; and that the plaintiff had been kept harmless and indemnified for touching and concerning the replevying and delivery of the said chattels, according to the meaning and intent of the said writing obligatory.
    To this plea in bar the plaintiff demurs generally, and the defendants join in demurrer.
    
      J. Richardson, in support of the demurrer,
    argued that the plea did not cover the condition of the bond: it is not averred that Allen prosecuted his action with effect. By his appeal he entirely vacated the judgment of the Common Pleas, and destroyed its effect. As to the averment that Hewes had received satisfaction of his demands against Holbrook, that satisfactian might have been by an extent on *tbe lands of Holbrook; or he might have paid the money himself; or, for any thing alleged to the contrary, the plaintiff may have paid it from his own pocket. If Holbrook made the satisfaction, he is entitled to have the chattels restored to him, which were taken to secure the payment. And the plaintiff in that case is accountable to him for them. 
    
    
      B. Whitman, for the defendants,
    contended that the bond was void, as there was no such court known as the county court. When the defendants had failed to enter their appeal, the plaintiff should have entered his complaint, and thereupon obtained his final judgment, and thus have avoided this circuity of action by resorting to the -bond. But, at any rate, the plea avers that the plaintiff has been saved harmless; and this being confessed by the demurrer, the penalty of the bond is saved. It is also averred that the creditor ifewes is satisfied.
    
      Richardson, in reply.
    The form of the bond in replevin is not prescribed by the statute, so that the name of county court was well enough, the Common Pleas being the county court, and the only one; and the time and place of its session was correctly stated. But it is too late for the defendants to object to the form of the bond; and if it.has any validity, they have confessed a breach in not prosecuting their action to effect.
    
      
       1 Mass. Rep. 421, Pike vs. Huckins. — 2 Mass. Rep. 514, Ladd vs. North. — 3 Mass. Rep. 303, Flagg vs. Tyler. — 4 Mass. Rep. 103, Hicks vs. Atkins.
      
    
   Per Curiam.

The first objection relied on by the defendant arises on the face of the bond, which was conditioned for Joseph Allen’s appearance at the next county court. It is said there was no court known by that name, and the defendant has argued from this, that the bond was void. — We are all satisfied that this objection cannot prevail. It would be yielding too much to technical nicety. The words county court must intend the Court of Common Pleas; and if this was such a variance from the statute, that the bond could not be held valid under it, it would still be good at common law.

* Are, then, the facts relied on by the defendants sufficient for their discharge ? — The action was to be prosecuted with effect. It was entered and prosecuted, and after an appeal from the judgment of the Court of Common Pleas was interposed, the original creditor Hewes was satisfied; and therefore he can have no claim on the plaintiff on account of the attachment of the cattle. The plaintiff was to be saved harmless ; and the plea in bar avers that he has been so, which is confessed by the demurrer. If the cattle have not been returned, still the plaintiff should not have commenced his action, until he was in some way damnified; for until then he had no cause of action.

Plea in bar adjudged good.  