The question of the sufficiency of the notice, which was discussed at the argument, it is not necessary particularly to consider, in the view which the court have taken of the case upon another point. Assuming that either in respect to the form of the notice, or the time of giving it, some defect might be shown, the defendant insists that the plaintiff cannot avail himself of such objection, because he has, by his own acts, dispensed with the necessity of giving notice. The precise point of defence relied upon is this ; that the plaintiff instituted his action of replevin before the twenty four hours had elapsed, within which the defendant was required, by the Rev. Sts. c. 113, <§> 8, to give the notice, and by so doing superseded all necessity of a formal notice.

The court are clearly of opinion, that if the suit was thus instituted, as is alleged, the legal effect would be such as is contended by the defendant. The party thus instituting his action necessarily waives all objections as to notice, and relies upon an original illegal taking, or some ground of liability *122other than that of an omission to give notice agreeably to the provisions of the statute. The case of Wild v. Skinner, 23 Pick. 255, is to that effect. It arose upon the same section of the statute, and it was held, that if the party took his cattle from the pound before the expiration of the twenty four hours, by virtue of a writ of replevin, the notice required by the statute in other cases was rendered unnecessary by this act of the owner. That case seems to apply directly upon this point.

This brings us to the further inquiry, whether the present action was instituted before the expiration of twenty four hours from the time of the impounding.

The writ itself was filled up, it is conceded ; but it is contended, first, that the mere filling up of the blank in a proper form for a writ, if entirely finished, would not necessarily show that a suit was instituted; and secondly, that in the case of a writ of replevin, it cannot be said to be completed, as a writ, until a bond is executed and delivered to the officer.

, As to the first point, it is doubtless true that the court look at the real nature of the proceeding, and the intent of the parties in causing the writ to be filled up, rather than at the fact of the actually filling it up ; and although, prima facie, such making of the writ is to be considered as the true date of the writ, yet this may be controlled by evidence showing that it was made alio intuitu; that it was preparatory to instituting an action, if one should become necessary ; that it was to depend entirely upon the happening of a future event, as that of neglect to pay upon special request, or to deliver property upon a demand therefor; and in all such cases, it would be competent for the party to show these circumstances, 1.3 rebut the ordinary presumption arising from the actual making of the writ.

The court gave full force and effect to this principle, in the instruction given to the jury, that the writ must have been filled before the expiration of twenty four hours from the impounding, “ with the intent, at all events, to have it served, whether the defendant should give plaintiff notice of the *123impounding within twenty four hours, or not.” The further instruction, that the action must be considered as commenced at the time when the writ was thus filled, although not given to the officer for service, nor served, and although the bond was not made until after the expiration of twenty four hours from the time of the impounding, was correct. Under these instructions, the jury returned a verdict for the defendant, and the exceptions thereto must be overruled.