Opinion by
WilliaMS, C. J.
This is an action brought by the plaintiffs below, against the defendants on a reple-vin bond. The plaintiffs’ declaration contains two counts. The first is on the obligation as a penal bond in the usual form, setting forth the execution on the day of its date; the acknowledgement of the indebtedness of $3600,00; the. [155]*155liability of tbe defendants to pay tbe money, on request, and tbe failure to pay it, although often requested.
The second count sets fourth the making of the bond, &c. in the nsual form', averring that it was subjected to a condition which is in terms set forth as follows : “Now the condition of this'bond is such; that whereas said William S. Hathaway & William E. Clifford are about to replevy of one Alexander E. W. Webb and Anthony W. Carpenter, sheriff, &c. certain dry goods, and groceries, described in a certain writ of'replevin, now in my possession : Now if said William S. Hathaway & William E. Clifford shall appear at the return term of said writ and prosecute their suit to effect, and shall pay all costs and damages that shall be awarded -against them, then this bond shall be void; otherwise remain in full force.” Then are added the necessary averments that the bond was duly executed by Hathaway & Clifford, and Cameron & Dolbee as their securities ; that a writ of replevin issued, and that the goods were apprehended and delivered to them, the plaintiffs, in the action of replevin.
Then follows the avennent,.a§ a breach of the condition of the bond “ that Hathaway & Clifford had failed to appear at the return of said writ, and prosecute the same to effect, and pay all damages and costs that were awarded by the court against them; but bn the contrary that at the proper court, a judgment was entered against them, the said Hathaway & Clifford, for the sum of $302,01, as damages in favor of the defendants Carpenter & Webb; and costs of suit. That an execution had issued against the defendants in the said judgment, and a return made thereon of “ No property found? in my bailiwick on which to levy this writ.” The declaration then concludes with the' averment “That no part of the said judgment and costs have been paid, that the whole amount remains due and unpaid; that Hathaway & Clifford are non residents ■of the county of Des Moines.” The liability of the defendants, by reason of the promises is averred, and a general [156]*156averment of a request to pay, and a negleet and refusal to pay tbe same, or any part thereof, to the plaintiff.
Cameron and Dolbee were served with process, the other defendants not found. Cameron appeared and filed his demurrer to the declaration of the plaintiffs., .and for cause of demurrer, says.:
1st. There is no sufficient breach, assigned in plaintiffs’ declaration.
2nd. Plaintiff does not show., in or by said declaration, that any right of action has as yet accrued to him.
The demurrer was overruled by the court. It appears by the record, that a rule to plead was entered on motion of the plaintiffs, against Cameron, and that he failed to plead to the merits; having made no further appearance or defence in the case, after the overruling .of the demurer.
The record also shows, that judgment of default was entered against the .defendants., Hathaway, Clifford and Dolbee.
On the failure of Cameron to plead, a jury to assess the damages of the plaintiffs was .empanelled, and a verdict was rendered as follows: “¥e the jury find in debt the sum of thirty-six hundred dollars, being the amount of the penalty of the bond, and assess the damages by reason of the breaches of the condition thereof, at the sum of two hundred and seventy-two dollars, and sixty-eight cents.”— Judgment was rendered on the verdict for the penalty $8600 in debt, and also for $272,68 the damages sustained by reason of the breaches of the condition of the bond. It is also made a part of the judgment, “ that execution issue for the s.aid damages and the costs of suit, with directions to the sheriff to collect no more than the money so assessed and costs, and further, that the judgment of said debt, stand as a security for any further breaches that might be assigned on said bond.”
On the 23d day of October, 1848, Cameron and Dolbee sued out their writ of error.
The cause is now presented for adjudication, on the following assignments of error:
[157]*1571. Tbe- court erred-in oyerrüling tbe demurrer.
2. Tbe judgment should he-respondeat ouster.
3. Tbe- court erred- in- rendering judgment for tbe penalty, &c: -
4., Tbe-judgment rendered, is for more than tbe damages claimed in tbe declaration.'
It is contended, tbat tbe demurrer.to tbe declaration sbould bare been sustained by tbe court below, on two-grounds. 1. Tbat there is no absolute averment of a failure on tbe part of the defendants to pay,- or' satisfy the-bond. 2. Tbe declaration does not aver a proper and sufficient return to tbe execution, issued on tbe judgment ra-the action of replevin, to-prosecute which, the-boned here sued, was given.
By examining the declaration, we find tbat after a fall' recitation of tbe proceedings bad in tbe replevin suit as-inducements, showing tbe entry of final judgment against' Hathaway &• Clifford', the issuing of execution and the-return thereof by tbe officer,.it is averred “tbat no part of tbe said judgment and costs has been paid, and tbat the wliqle amount remains due and owing:’ This, we think,, is sufficient as an averment of nonpayment, or failure on tbe part of tbe obligors in tbe bond, to comply with the terms-of their obligation-; and fully answers this ground of demurrer.
Tbe-second- objection to-tbe- declaration,-is based upon'an alleged variance between tbe language used by the-sheriff,, ini making bis return to tbe execution issued on the judgment in- tbe action of replevin, and tbe return-prescribed by tlse statute. Tbe return of the- sheriff*,■ asset forth in tbe plaintiffs’ declaration, is “No property found in my bailiwick, upon which to levy this writ.” Tbe 23d section of tbe replevin act, see Hev. Stat., 587,. provides, “ tbat no suit shall be instituted on tbe bond given by tbe plaintiff as provided in this act,' nor against the officer who took tbe same, until an execution shall have issued on tbe judgment in favor of tbe defendant, in which it shall be returned, tbat sufficient property of tbe [158]*158plaintiff, cannot be found in tbe county, wbereon to levy, and make tbe amount of the said judgment.”
Tbe only inquiry then is, as to tbe return of tbe sheriff in this case, being a substantial compliance with tbe requisition of tbe statute? "We think it is. Tbe return of the sheriff is, “No property found, &c.” This return not only shows that “sufficient property” could not be found; but that “no property” could be found, clearly and fully including all that is expressed by the language of tbe statute, and more. It would be a rigid, and we think, unreasonable rule, which would declare such a return bad, for want of compliance with the requirement of the statute. The averment, as to the return of the sheriff, and the failure of the plaintiffs in the replevin suit, and oblig-ors in the bond, here sued to satisfy the judgment, is sufficient, in law, to enable the plaintiffs to maintain this action.
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Opinion by
WilliaMS, C. J.
This is an action brought by the plaintiffs below, against the defendants on a reple-vin bond. The plaintiffs’ declaration contains two counts. The first is on the obligation as a penal bond in the usual form, setting forth the execution on the day of its date; the acknowledgement of the indebtedness of $3600,00; the. [155]*155liability of tbe defendants to pay tbe money, on request, and tbe failure to pay it, although often requested.
The second count sets fourth the making of the bond, &c. in the nsual form', averring that it was subjected to a condition which is in terms set forth as follows : “Now the condition of this'bond is such; that whereas said William S. Hathaway & William E. Clifford are about to replevy of one Alexander E. W. Webb and Anthony W. Carpenter, sheriff, &c. certain dry goods, and groceries, described in a certain writ of'replevin, now in my possession : Now if said William S. Hathaway & William E. Clifford shall appear at the return term of said writ and prosecute their suit to effect, and shall pay all costs and damages that shall be awarded -against them, then this bond shall be void; otherwise remain in full force.” Then are added the necessary averments that the bond was duly executed by Hathaway & Clifford, and Cameron & Dolbee as their securities ; that a writ of replevin issued, and that the goods were apprehended and delivered to them, the plaintiffs, in the action of replevin.
Then follows the avennent,.a§ a breach of the condition of the bond “ that Hathaway & Clifford had failed to appear at the return of said writ, and prosecute the same to effect, and pay all damages and costs that were awarded by the court against them; but bn the contrary that at the proper court, a judgment was entered against them, the said Hathaway & Clifford, for the sum of $302,01, as damages in favor of the defendants Carpenter & Webb; and costs of suit. That an execution had issued against the defendants in the said judgment, and a return made thereon of “ No property found? in my bailiwick on which to levy this writ.” The declaration then concludes with the' averment “That no part of the said judgment and costs have been paid, that the whole amount remains due and unpaid; that Hathaway & Clifford are non residents ■of the county of Des Moines.” The liability of the defendants, by reason of the promises is averred, and a general [156]*156averment of a request to pay, and a negleet and refusal to pay tbe same, or any part thereof, to the plaintiff.
Cameron and Dolbee were served with process, the other defendants not found. Cameron appeared and filed his demurrer to the declaration of the plaintiffs., .and for cause of demurrer, says.:
1st. There is no sufficient breach, assigned in plaintiffs’ declaration.
2nd. Plaintiff does not show., in or by said declaration, that any right of action has as yet accrued to him.
The demurrer was overruled by the court. It appears by the record, that a rule to plead was entered on motion of the plaintiffs, against Cameron, and that he failed to plead to the merits; having made no further appearance or defence in the case, after the overruling .of the demurer.
The record also shows, that judgment of default was entered against the .defendants., Hathaway, Clifford and Dolbee.
On the failure of Cameron to plead, a jury to assess the damages of the plaintiffs was .empanelled, and a verdict was rendered as follows: “¥e the jury find in debt the sum of thirty-six hundred dollars, being the amount of the penalty of the bond, and assess the damages by reason of the breaches of the condition thereof, at the sum of two hundred and seventy-two dollars, and sixty-eight cents.”— Judgment was rendered on the verdict for the penalty $8600 in debt, and also for $272,68 the damages sustained by reason of the breaches of the condition of the bond. It is also made a part of the judgment, “ that execution issue for the s.aid damages and the costs of suit, with directions to the sheriff to collect no more than the money so assessed and costs, and further, that the judgment of said debt, stand as a security for any further breaches that might be assigned on said bond.”
On the 23d day of October, 1848, Cameron and Dolbee sued out their writ of error.
The cause is now presented for adjudication, on the following assignments of error:
[157]*1571. Tbe- court erred-in oyerrüling tbe demurrer.
2. Tbe judgment should he-respondeat ouster.
3. Tbe- court erred- in- rendering judgment for tbe penalty, &c: -
4., Tbe-judgment rendered, is for more than tbe damages claimed in tbe declaration.'
It is contended, tbat tbe demurrer.to tbe declaration sbould bare been sustained by tbe court below, on two-grounds. 1. Tbat there is no absolute averment of a failure on tbe part of the defendants to pay,- or' satisfy the-bond. 2. Tbe declaration does not aver a proper and sufficient return to tbe execution, issued on tbe judgment ra-the action of replevin, to-prosecute which, the-boned here sued, was given.
By examining the declaration, we find tbat after a fall' recitation of tbe proceedings bad in tbe replevin suit as-inducements, showing tbe entry of final judgment against' Hathaway &• Clifford', the issuing of execution and the-return thereof by tbe officer,.it is averred “tbat no part of tbe said judgment and costs has been paid, and tbat the wliqle amount remains due and owing:’ This, we think,, is sufficient as an averment of nonpayment, or failure on tbe part of tbe obligors in tbe bond, to comply with the terms-of their obligation-; and fully answers this ground of demurrer.
Tbe-second- objection to-tbe- declaration,-is based upon'an alleged variance between tbe language used by the-sheriff,, ini making bis return to tbe execution issued on the judgment in- tbe action of replevin, and tbe return-prescribed by tlse statute. Tbe return of the- sheriff*,■ asset forth in tbe plaintiffs’ declaration, is “No property found in my bailiwick, upon which to levy this writ.” Tbe 23d section of tbe replevin act, see Hev. Stat., 587,. provides, “ tbat no suit shall be instituted on tbe bond given by tbe plaintiff as provided in this act,' nor against the officer who took tbe same, until an execution shall have issued on tbe judgment in favor of tbe defendant, in which it shall be returned, tbat sufficient property of tbe [158]*158plaintiff, cannot be found in tbe county, wbereon to levy, and make tbe amount of the said judgment.”
Tbe only inquiry then is, as to tbe return of tbe sheriff in this case, being a substantial compliance with tbe requisition of tbe statute? "We think it is. Tbe return of the sheriff is, “No property found, &c.” This return not only shows that “sufficient property” could not be found; but that “no property” could be found, clearly and fully including all that is expressed by the language of tbe statute, and more. It would be a rigid, and we think, unreasonable rule, which would declare such a return bad, for want of compliance with the requirement of the statute. The averment, as to the return of the sheriff, and the failure of the plaintiffs in the replevin suit, and oblig-ors in the bond, here sued to satisfy the judgment, is sufficient, in law, to enable the plaintiffs to maintain this action.
Objections were made to the legality of the proceedings in the action of replevin, in which the bond here sued, was given. This court cannot, in this proceeding, go behind the judgment in that case. We must consider the judgment remaining as it does, unreversed and in force, as rem judieatum. As such, it cannot be impeached collaterally, for mere irregularity. Besides, these objections relate to matter of inducement in the declaration, which might have been omitted; and without which, it would have been good in law.
The declaration avers that the judgment remains unsatisfied, and the proper return of the sheriff on the execution is set forth substantially, so as to justify the commencement of the suit under the statute. The important aver-ments of the declaration, are made with sufficient regard to the rules of pleading, so as to put the defendants on their defence in accordance with the practice.
There is no error in the judgment of the court, overruling the demurrer.
But it is contended, that the judgment on the demurrer was improperly entered. . That the court should have giv[159]*159en a judgment of respondeat ouster. That tbe defendants were estopped, by tbe judgment' of tbe court, from pleading to tbe merits.
Tbe record shows, that after tbe default bad been entered against Dolbee; on tbe same day of tbe filing of tbe demurrer j a rule to plead by a time certain, during tbe term, was taken against Cameron, and that tbe demurrer being overruled, tbe default was confirmed as to bim, be having failed to plead. This was then a judgment for want of a plea.
We consider tbe practice in this state, well settled on this point. Tbe demurrer being overruled, tbe defendant bad -bis election to stand on it, or to plead over. It was bis privilege to move tbe court for leave to plead over, and proceed to trial on tbe merits. Having failed to do this, tbe court was justifiable in presuming that be stood upon bis demurrer. Upon failing to plead by tbe time appointed, tbe judgment against Mm was a legal consequence. This is tbe practice, not only in this state, but it prevails elsewhere. Godfrey v. Buckmaster, 1st. Scam. 447.— Gilbert v. Maggord, ib. 471. Conradi v. Evans, 2 ib., 186.
Tbe objection to tbe judgment rendered for tbe penalty, we think is not well taken.
This being an action at law on a penal bond, a judgment for tbe penalty was proper. From tbe character of tbe instrument, there could be but one breach assigned. It was competent for tbe plaintiffs to sue upon tbe bond, and at tbe same time, declare and claim damages for tbe breach of tbe covenant. Rep). 8tat. p. 471 § 16. Such has been tbe practice in this state under tbe statute, which provides that tbe judgment may be entered in debt for tbe penalty, as a security for tbe breaches, and also, at tbe same time, if breaches are assigned in the declaration, for such damages as may be proven to have been sustained by tbe plaintiffs. This mode of procedure fully protects tbe interests of tbe parties litigant, whilst it prevents, in cases [160]*160like this, circuity of action and accnnmlation of costs. In this there is no error.
D. Itorer, for plaintiff in error.
J. O. Hall, for defendant.
The 4th error assigned is well taken. The plaintiffs declare for the sum of one hundred dollars, as the damages which they have sustained by reason of the breach of the condition of the bond. The measure of the damages sustained by the plaintiffs did not depend upon the penalty but upon the breach of the condition of the bond. The plaintiffs, upon the ascertainment of the amount of damages, by proof to the jury, were entitled to recover pro tanto.
The sum. assessed by the jury, and for which judgment is- entered', is §272,68. That claimed in the writ is §3600, debt and §100 damages; judgment is entered for that amount in debt, and 272,68 as damages. The declaration, as to the damages, follows the writ of summons claiming (as damages,) one- hundred dollars'. This sum.is clearly claimed,.in the declaration, as tile plaintiffs’ damages for the breach of the condition.of'the bond. The plaintiffs can recover no more than they have claimed in their declaration, and’ as the judgment in debt was to the extent of the writ and declaration, the judgment and damages could not be any part of the judgment for debt as claimed in the argument. There is, therefore, in this, error in the judgment of the court below. Horner v. Hunt, 1, Blackf. 214. 3, Scam. 348.
This error- may, however, be cured by the plaintiff coming into court, now, and entering- a remittitur, otherwise-the judgment is reversed.
Judgment reversed.