
    Isaac Hicks versus Hannah Atkins, Administratrix.
    Where a defendant against whom a judgment is given, reviews the action, and gives bond to prosecute his review to final judgment, and to pay the damages and costs which the original plaintiff may recover upon the review, or the original judgment and inte.e»t thereon, and alter entering the review becomes nonsuit, — in an action upon the bond, the original plaintiff shall recover the amount of the first judgment, with interest thereon. But whether for the costs of the nonsuit, dubitatur.
    
    This was an action of debt upon a bond for a review. The con dition recites a judgment recovered in the Court of Common Pleas, in January then last, by the plaintiff', against Joseph Howard, the principal obligor, for 3277 dollars’ damage, and costs, taxed at 8 dollars 71 cents, and that this Court, on *the [ * 104 J petition of the said Howard, had granted a review of the action, in which the said judgment was rendered, and a stay of execution, and concludes thus: “ Now, if the said Joseph Howard shall and do prosecute his writ of review aforesaid, at the next Supreme Judicial Court, in said county, in due form of law, to final judgment thereon, and shall pay all such damages and costs as the said Isaac Hicks may and shall recover against him on the same writ, or the original judgment herein first recited, with interest in case the same writ of review shall not be prosecuted as aforesaid, then this obligation to be void; otherwise of force.” The defendant’s intestate, Gibbs Atkins, executed the bond as surety.
    Upon oyer had of the bond and condition, the defendant pleads in bar of the action that the said Howard did prosecute the said writ of review, &c., [in the words of the condition,] as by the records of said Court, in said Court remaining, will appear.
    The plaintiff, in his replication, prays oyer of the said records, and has it. From the record it appears that Howard sued out his writ of review, and entered it at August term, 1804, from whence it was continued from term to term, until November, 1806, at which last mentioned term Howard became nonsuit, and Hicks had judgment for his costs, taxed at 55 dollars 79 cents. The plaintiff then demurs generally to the plea in bar, and the defendant joins in demurrer.
    
      Phillips, for the plaintiff,
    argued that Howard did not prosecute his review to final judgment, but, by becoming nonsuit, had failed so to do, whereby the condition of the bond was broken, and the penalty became forfeited. If a hearing in equity is claimed, the plaintiff holds himself entitled to recover, in this action, the amount of the first judgment with interest by way of additional damages, and the costs of the review.
    
      Whitman, for the defendant,
    observed that this action, being against a surety, was less to be favored than a like action would be, if brought against a principal, whose own fault or loches had caused the forfeiture.
    But he contended here was no forfeiture of the penalty. Hoioard did prosecute his writ of review to final judgment, for a judgment rendered on a nonsuit is as truly a final judgment [ * 105 ] * as one rendered on a verdict or demurrer. If he had failed to enter his action, the bond must have been forfeited ; but not so when the action is entered and prosecuted from term to term, as was the case here.
    But if the Court should consider the penalty forfeited, the utmost the plaintiff can claim in equity is the costs of the review, together with the interest of the original judgment; for this is all he has lost by the review. Against this the defendant is not disposed very earnestly to contend.
   The opinion of the Court was delivered by

Parsons, C. J.

Joseph Howard,, the principal in this bond, had, on petition to this Court, obtained leave to review an action, in which the plaintiff had recovered judgment against him, and on giving the bond, execution was stayed.

By the condition of the bond, Howard was, among other things, to prosecute his writ of review to final judgment, and to pay such damages and costs as Hicks should recover against him on that writ, or the original judgment with interest in case the writ should not be so prosecuted. Howard- sued out his writ of review, but was afterwards nonsuit, and upon the nonsuit Hicks recovered his costs, which have never been paid. The facts are stated in the pleadings, and there is no question but that the condition of the bond is broken and the penalty forfeited. And the defendant seems to admit that Hicks on this bond can recover the costs- of the nonsuit, which have not yet been paid, with the interest upon the first judgment.

The defendant then prays to be relieved in equity against the penalty, and insists that the review was prosecuted to final judgment within the intent of the condition, and that Hicks can have judgment only for the costs upon the nonsuit, with the interest of the first judgment as additional damages.

But we are all of opinion that the plaintiff shall have execution for a sum equal to his former judgment, with interest thereon and costs ; that the writ of review was not prosecuted to final judgment, the plaintiff having become nonsuit, in which case the formel judgment was to be paid with interest.

* The Court having some doubt whether the costs of [* 106 ] the nonsuit could be recovered on this bond, as the damages and costs to be paid on review are such as are recovered on final judgment, the plaintiff agreed to waive the costs, and to take his execution for a sum equal to the former judgment, with interest thereon; and to take out his execution against Howard on the judgment for costs on the nonsuit.  