1. Though a replevin bond, which does not conform to the Rev. Sts. c. 113, § 29, may be good at common law, yet the defendant in replevin is entitled, if he seasonably require it, to such a bond as is prescribed by statute, namely, a bond “ from the plaintiff, or from some one in his behalf, with sufficient sureties.” Such a bond was not given in this case, and the defendant’s motion to dismiss the action for .that cause ’"was rightly granted by the court of common pleas; it having been made at the return term of the writ. Clark v. Connecticut River Railroad, 6 Gray, 363. If the defendant had delayed the motion till a subsequent term, it would have been too late. Simonds v. Parker, 1 Met. 508.
2. The cause of the motion to dismiss the action is sufficiently stated.
3. A point, which does not arise on the papers in the case, was raised in argument. It was said by the plaintiff’s counsel, and admitted by the counsel for the defendant, that the motion to dismiss the action, and an affidavit of defence on the merits, were filed simultaneously; and the plaintiff has contended that the affidavit was a waiver or a revocation of the motion. We do not think so. By § 10 of the practice act, (St. 1852, c. 312,) it was necessary that the defendant should file an affidavit of defence, during the return term, to save him 'from the *461danger of a default. Hence it was decided in 6 Gray, ubi sup., that an affidavit filed after a motion to dismiss was not a waiver of that motion. A fortiori, it would seem that a filing of both at once should not prevent effect being given to each in its order. When two acts are done at the same time, that shall take effect first, which ought in strictness to have been done first, in order to give it effect. Plow. 540.
Judgment of dismissal affirmed