The only question is, whether the recognizance entered into by the defendant, is discharged by the first judgment of the superior court; and manifestly, that must de*444pend on the decision of another question, viz. whether the juc[gment of the superior court rendered in September, 1824, in the case of Horatio Lockwood v. Lewis S. Lockwood, was a final judgment. I shall attempt to shew, that it was ; and that the recognizance was thereby discharged.
Here I would premise, that it is a principle well established, that “ bail is highlyfavoured in law, and statutes for their saving should be liberally expounded.”
It is conceded by the counsel for the plaintiff, and by my brethren who constitute a majority of the Court, that the special bail is discharged the moment the first judgment in chief is rendered for the defendant; and that the lien on land and personal property created by attachment, is removed by such judgment in favour of the defendant. It is also agreed, that if the principal had pledged money or any other property with the surety, to indemnify him for becoming bound as special bail, or for prosecution, or for an appeal, it must be returned to the pledgor, on the rendition of a judgment in chief; and if it be not so returned, an action will immediately lie in his favour against the pledgee. These principles were conceded in the argument, and are not now denied. They have been too long established to be questioned. Butler v. Bissel, 1 Root 102. Fleming exr. of McDonald v. Lord, 1 Root 214. 2 Swift’s Syst. 175, 6. Clap v. Bell, 4 Mass. Rep. 99. Bingham v. Pepoon & al., 9 Mass. Rep. 339. Their force and application to this case are attempted to be evaded ; — with what reason I shall shew hereafter.
In Clap v. Bell, 4 Mass. Rep. 99. the plaintiff brought a writ of replevin, to replevy certain chattels,which the defendant, who was a deputy-sheriff, had attached as the property of the plaintiff It was proved, that Brazier and Davis commenced a suit against Clap, in February, 1803. On the 8th of January, 1806, a verdict was given for Clap in that suit, and judgment thereon was rendered for costs against the then plaintiffs. On the 13th of February then following, Brazier and Davis sued a writ of review of that judgment, which was served on Clap, on the 21st of the same February, and was pending when this suit in replevin was brought. Clap sued the writ of replevin, on the 15th of October 1806, having previously demanded the goods of Bell, the deputy-sheriff, who refused to deliver them, but held them, by direction of Brazier and Davis, they claiming a right to ¡⅛⅛ them under the attach*445ment until the determination of the review. The counsel for the defendant contended, that a review was a continuation of the original suit,being confined to the same pleading &c., and not an original suit. They likened it to a judgment of an inferior court, from which there lies an appeal, in which case goods attached are still holden to respond the judgment of the court having the appellate jurisdiction. Parsons, Ch. J., in delivering the opinion of the Court, says: “ We are all of the opinion, that when goods or estate are attached, by virtue of an original suit, to secure the judgment which the plaintiff may recover, if on the appeal, judgment be rendered for the defendant, the attachment is ipso facto dissolved, and the sheriff can no longer hold the property attached against the demand of the defendant.” There would seem to be some colour for the argument of the defendant in that case ; for by the law of Massachusetts, the plaintiff has a right to review his cause, and have it tried a second time. Our petitions for new trials are original suits to all intents and purposes, and a new trial is never granted of course, or ex debito justifies, as will be more fully shewn hereafter.
The same doctrine was holden, by the supreme court of Massachusetts, in the case of Swett & al. v. Sullivan, 7 Mass. Rep. 242. This was a suit against the defendant as special bail for Abraham Ogden. The defendant Ogden prevailed on the first trial; the plaintiff reviewed the cause, and obtained judgment for a large sum against Ogden ; and then instituted his scire-fa-cias against Sullivan as his bail. Parsons, Ch. J., in giving the opinion of the court, says: “ If the final judgment mentioned in the last statute [1786. c. 66. s. I.] should be taken to be the judgment on review, great mischiefs would be the consequence. Either party might review at any time within two years after entering judgment on the appeal. The bail might, therefore, be holden for several years, when the situation and property of the principal might be essentially changed ; and a party arrested might find it impracticable to procure bail.” P. 347, 8. And again : “ It is therefore our opinion, that the final judgment mentioned in the statute of 1784, [c. 10. s. 3.] is the first judgment on which the plaintiff may sue out an execution. If no appeal lies from the judgment of the common pleas, or if none is made, that judgment is final; or if there is an appeal, then the judgment on the appeal is final; for on either of these judgments execution may issue.” P. 348. The bail was held to be discharged.
*446It is impossible for me to discover why these concessions atKi decisions are not binding as to the point now in judgment. Let me examine the recognizance entered intobythe special bail, and compare its obligation with that entered into by the defendant on the appeal. The condition in the recognizance of special bail, is, “that the defendant [in the suit] shall appear and abide final judgment, and answer all damages in case he should not make his plea good.” 2 Swift's a Dig. 491, 2. On the appeal in this cause the recognizance set forth in the declaration has this condition : “ That if the said Lewis S. Lockwood should fail to prosecute his appeal to effect, and answer all damages in case he make not his plea good,” then &c. So the recognizance entered into, in a reple vin of goods attached, is, that the plaintiff shall prosecute his suit of replevin to effect, and in case he make not his plea good, answer all damages, &c ; yet if the defendant recover a judgment in the suit on which the goods re-plevied were attached, all agree, and so is the case of Clap v. Bell above cited, the goods are discharged from the lien, and of course, the recognizance in the replevin is also discharged. If the obligation incurred is the same, and I beg, if it is not, that the difference may be pointed out, then a final judgment in favour of the party for whom the surety undertakes, will operate a discharge in all these cases.
It is however, said, that the recognizance for the appeal is more extensive than that of special bail. I still must be allowed to ask wherein ? How is this made to appear ? Do they not both depend on the question, whether the defendant has made his plea good, or in other words, whether he has obtained a final judgment ? But it is suggested, that a judgment may be final, so as to discharge the special hail and the property attached, and yet not be an ultimate judgment so as to discharge the recognizance on the appeal. An ultimate judgment, in my opinion, is not a judgment for which the surety is, or can be responsible ; for it is unknown in law. “ Judgments,” says Sir William Blackstone, “ are either interlocutory or final. Interlocutory judgments are such as are given in the middle of a cause, upon some plea, proceeding or default, which is only intermediate, and does not finally determine or complete the suit.” “ Final are such as at once put an end to the action, by declaring, that the plaintiff has either entitled himself, or has not, to recover the the remedy he sued for.” 3 Bla. Com. 396, 398. When the defendant recovered against the plaintiff, and the *447plaintiff did not recover against the defendant, in September 1824, was not that judgment final within the definition above given? If then the defendant “makes his plea good,” by a final judgment in his favour, is not the surety for him that he should “ make his plea good,” discharged ? The objector says “ yes, in case of special bail, but not in case of bail for the appeal.” I ask, why not ? I ask, is there not a final judgment ? There is a. final judgment, if Sir William Blackstone and Chief Justice Parsons knew what a final judgment was. But neither of them knew probably what in law language an ultimate judgment was ; nor am I bound to understand it. Soon we shall have penultimate judgments. The granting of the petition for a new trial in this cause, which preceded the ultimate judgment, might perhaps be denominated a penultimate judgment : it was almost the last.
It is again insisted, that the reason why special bail is discharged, is, that he cannot surrender the principal in discharge of himself, as he might have done before final judgment: he has him not “ upon the string.” So, in the case of property attached, it can be no longer holden than till final judgment; and the law compels no man to do impossibilities. But may it not be asked, why the bail has not the principal upon the string ? Why the property attached cannot be holden after final judgment ? Why the surety in replevin is exonerated, when judgment is rendered in favour of his principal ? Is it not because the judgment is a discharge of the principal; and the lien on the property is destroyed by it, and the surety in replevin has fulfilled the condition of his recognizance ? Why then is not the defendant discharged, by Lewis S. Lockwood’s having pros-ee uted his appeal to effect 1
Is it after all to be said, that the recognizance for the appeal is more extensive than that entered into by the special bail ; and the only reason assigned, is, that it is more extensive ? An assertion that a proposition of this kind is true, may be alw'ays countervailed, by a contrary assertion, that the proposition is not true ; and an enquiring mind waits for the reasons.
Again ; by the statute (p. 63. ed. 1821.) it is provided, that in bonds given for the prosecution of an action or appeal, the surety or sureties shall be liable to satisfy the cost that shall be recovered against the principal, if it cannot be had out of his estate. An execution, then, must have been taken out against Lewis S. Lockwood; and the fact must be shewn *448to the court, that the cost could not be obtained from him. This will not be denied. It is averred in the declaration, that an execution was taken out, and a non est inventus (as toprop-crtyi and that was all that was necessary) regularly returned. But from September 1824 to September 1827, a period of three years, no execution could have been taken out against Lewis Si Lockwood, for this very substantial reason, that there was no judgment against him, but a final judgment in his fa-vour; and yet while the principal was thus discharged, his bail, the present defendant, was all the time liable, or rather has, after the lapse of three years, during all which time the principal was discharged, now become liable, by the doctrine, I suppose, of a kind of postliminium, or perhaps springing uses. If there be a case in which the principal is discharged, and yet the surety is liable, I am ignorant of it. A surety, ex vi termini, is correlate, and cannot exist without a principal. No decision or dictum favours such an idea. Let it not be here said, that if the defendant, Lewis S. Lockwood, was discharged, yet lie might be, and regularly was, subjected to the payment of all the costs, both antecedent and subsequent to thq new trial. This is doubtless true, (unless the court had granted a new trial upon different terms, which it might have done) but it is obvious that this liability did not arise at all from the recognizance, but from his situation as defendant. He would have been equally liable, had no bond been given.
It has been further suggested, that if the doctrine for which I contend had been adopted, the bond for prosecution, for an appeal and for special bail will be discharged, on the allowance of a motion for a new trial. This objection is susceptible of a very easy and satisfactory answer. A motion for a new trial, is, in no respect, like a petition for a new trial. The latter is an original suit. A duty must have been paid upon it, before the late law abolishing all duties was passed. It must have been served on the adverse party ; and it had not the effect of suspending the judgment or staying the execution. A motion for a new trial was substituted, for a bill of exceptions, by the superior court, in May 1807. By the rules then adopted, they were to be filed within forty-eight hours after verdict, and during the session of the court, and were by the court to be reserved for the consideration of the Supreme Court of Errors, with or without stay of execution, at their discretion. 3 Day 88. This motion for a new trial, is analogous, in many re*449spects, to the practice in England, where it is said, it operates to suspend the judgment. 3 Bla. Com. 387. No new suit is brought; and the parties are, during the pendency of it, supposed to be in court. The motion is for a rule to shew cause why a new trial should not be granted. If allowed, the rule is made absolute, and a new trial granted. If not allowed, the rule is discharged. If execution is stayed upon the reservation of the motion, as is generally the case, the special bail, the bond for prosecution and the recognizance for the appeal, are not, in any manner, affected by it. This is the well known and established practice under the rule ;. and therefore, the motion cannot be likened to a petition for a new trial. In support of this doctrine, I avail myself with pleasure of the strong and expressive language of the Chief Justice, in the case of Magill v. Lyman & al. 6 Conn. Rep. 62. “A petition for a new trial to set aside a judgment by a court of law, is an action. The plaintiff in error has confounded a motion for a new trial with the petition, as if they were identical; and on this position the stress of the argument has been placed. What, then, is a motion ? Any proposition or request, formal or informal, addressed to a court, which can affect a cause, whether by obtaining the continuance of it, a reference of it to men, the exhibition of documents, the granting of a venire-facias de novo, or any thing else bearing upon the suit however remotely. But an action is a legal process by writ, duly signed by a magistrate, whereon^a duty is paid, commanding the appearance of a defendant in court to answer a specified cause of complaint, served and returned by a legal officer, the subject of pleading, of the law of limitation, of a decree and of error. A petition for a new trial has all these properties ; and by its properties a thing is distinguished.” And again, page 64. of the same opinion: “ From this brief history the essential difference between petitions and motions strikingly appears. The latter is no suit, and has no resemblance to a petition, except in the effect of granting a new trial ] a fact, which, as has been shewn, is no evidence of common nature or denomination. But a petition for a new trial is a suit at law, with all the properties of an action, terminated hy a formal decree, — from this time functus ofiicio, — and liable to reversal, at any time within three jmars, by writ of error. I conclude, then, that a petition is an action, and essentially distinguishable from a motion.” I am aware, that the Chief Justice differed from a majority of the *450Court in that case ; but in the opinion of the Court delivered py jQ(jge Peters, there is not an expression in opposition to the observations above quoted. The point decided by the Court, was> ^iat the granting or refusal of a new trial, on a petition for that purpose, is a matter of discretion, and not the subject of error.
I will now cite some authorities bearing directly on the poin. In Ainsworth v. Peabody, 1 Root 469. the point was distinctly made to the superior court, in a scire-facias on a bond for an appeal. Judgment had been rendered for the defendant, a new trial granted, and then a verdict for the plaintiff. The court compared it with the decisions respecting special bail, cited cases in support of the position, and the plaintiff, finding the opinion of the court against him, withdrew his action. Before this case is overruled, it will be requisite to shew, that it is not strictly analogous to cases of special bail; and this, 1 apprehend, cannot be done.
By the British statute, 3 James I., bail is required to be given on the.allowance of a writ of error, to be a supersedeas, with one or more sureties, in double the sum of the judgment sought to be reversed. The condition of the recognizance or bond, is, that the plaintiff shall prosecute the writ of error with effect, and pay all such debt, damages and costs as appear on the judgment, and also all damages and costs to be awarded for the delay of execution. It has been repeatedly decided, under that statute, that if error be brought in the Exchequer Chamber, on a judgment in the King’s Bench, and the judgment be affirmed, and then error brought returnable in Parliament, there must be a new or fresh bail. Tilly v. Richardson, 1 Salk. 97. S. C. 2 Ld. Raym. 840. Colebrook v. Diggs, 1 Stra. 527. S. C. 8 Mod. 79. Anon. 7 Mod. 120. Com. Dig. tit. Bail. N.
In this case, it is admitted, that the recognizance entered into, is, in every respect, like a bond for the prosecution of a suit; nay, that is an express ground of argument; — it is to prosecute an appeal to effect. The same rules must govern as would govern a bond to prosecute a writ of error, brought on a judgment of the county court to the superior court. Ths judgment is affirmed. A writ of error is brought on this judgment to the Supreme Court of Errors. Must there not be a new bond ; or is the bond given on the taking out of the writ of error to the superior court operative beyond the court to which it is returnable ? Immemorial usage may answer the *451question. Lord Holt says : “ The recognizance entered into, upon the allowance of the writ of error, in the Common Pleas, goes only to the writ of of error that is then brought; and it is true, if the judgment affirmed here be reversed by the Lords, it will discharge that recognizance ; but in case it be affirmed, here is a delay of execution, and costs that the plaintiff is put to, and the recognizance of the Common Pleas does not reach them.” Anon. 7 Mod. 121. Hence he and the other judges said, that there must be fresh bail to render the execution a supersedeas. Moreover, the argument ah inconvenienti is very strong. The surety never can be safe until, as the case may be, the lapse of four, five, or even six years. On the last day of three years after the rendition of the judgment, a writ of error or a petition for a new trial may be brought. This may continue, and if we may judge from what occurred in this case, it probably will, three years more. In the mean time, he has been compelled to relinquish property given to him as an indemnity, and then after the lapse of six years, to pay a bill of costs, from which he’supposed himself exonerated, by the terms of his recognizance ; for the defendant had prosecuted his appeal to effect, by obtaining a final judgment against the plaintiff. The defendant may well say, In fuze foedera non vent. Chief Justice Parsons lays much stress on this argument ah inconveni-enti, in the case cited from 7 Mass. Rep. 342.
I have already said, that it was conceded in the argument, and not denied by any member of the Court, that if Lewis S. Lockwood had delivered to the plaintiff property of any description to indemnify him against any loss for entering into this recognizance, he could not have held it after the judgment in chief in 1824. Had it been money, indebitatus assumpsit might have been maintained ; or trover would have lain for any other articles of personal property. This seemed irresistibly to result from the principle, that the lien created by the attachment, is, ipso facto, removed, by a final judgment, as well as from the doctrine never doubted, that special bail was in such case discharged. We have, then, a case, in which the defendant, Enos Jones, might have been sued, at any time between September 1824 and September 1827, for 400 dollars in money put into his hands by Lewis S. Lockwood to indemnify him for becoming his surety, and the money recovered from him on the ground that he was discharged from his surety-ship ; and thereafter, in 1829, this sum was recovered from *452Enos Jones, by Horatio Lockwood, on the ground that he was no¿ discharged from his suretyship. If this be not an absurdity, I know not what can be.
It was a^so sa'(b that if the bondsman on the appeal is discharged on rendition of the judgment in the superior court, it will operate very injuriously to the plaintiff; for he may be remediless for all his costs both before and after the granting of the new trial. Precisely so, if the special bail is discharged ; if the bond in replevin is discharged ; if the lien on real and personal property is removed, — the plaintiff may lose the fruits of his judgment. What then? The question, — and the sole question — still recurs, is the recognizance or bond satisfied, or the attachmment of property ipso facto dissolved, by a final judgment ? I think it demonstrable from repeated decisions, as well as from the reason and nature of the case, that such is the law. The judgment, therefore, is, in my opinion, correct, and ought to be affirmed.
Williams, J. conceiving himself interested in the question, and Bissell, J. having been of counsel in the cause, gave no opinion.Judgment reversed.