The defendant Foster replevied a horse from the plaintiff, and he, with the other defendants as sureties, gave a replevin bond in the usual form. He failed to enter his writ, and the plaintiff brings this action on the bond to recover for the breach of it. The jury were instructed that the plaintiff was entitled to judgment for the penal sum of the bond, and were directed to determine how much was payable in equity and good conscience for this breach of the condition, in order that the court might award to the plaintiff a proper execution. Pub. Sts. c. 171, § 10. Upon this part of the case the defendants were allowed to introduce evidence that the plaintiff never had any title to the horse, and that it belonged to the defendant Foster. The plaintiff’s exception to the admission of this evidence raises the only question before us.
On a hearing to determine for how much execution shall issue for a breach of the condition of a replevin bond, it is established that any pertinent facts may be shown in diminution of the claim, unless the defendants are estopped to prove them *40by an adjudication in the previous suit. If the title to the horse had been put in issue, and determined in favor of the defendant in the replevin suit, the judgment would have been conclusive against the defendants in the suit upon the bond. But if a return had been ordered on a nonsuit of the plaintiff, the question of title would have been left open, as it is left open in the present suit, which is founded, not upon a failure to comply with an order for a return of the property, but upon a failure to enter the replevin writ.
The rules applicable to such cases were long ago stated by this court, and it is unnecessary to consider them further. Leonard v. Whitney, 109 Mass. 265. Davis v. Harding, 3 Allen, 302. Bartlett v. Kidder, 14 Gray, 449.
Exceptions overruled.