A majority of the court are of opinion that this action cannot be maintained.

1. The bond not being given in any penal sum, but only “ in the full and just sum of double the value of the property to be replevied, to be ascertained by three disinterested and discreet *28persons,” &c., is not a good replevin bond. We are aware of the difficulty of executing process in replevin, because the offi« cer must take a bond in double the appraised value, when the parties do not agree on the value, and some steps must be taken towards the execution of the writ before an appraisement can be made. But we think the attempt to avoid the difficulty in the present case, by naming no sum, but using a description which would indicate a very uncertain sum, cannot avail. Perhaps the proper course is sufficiently indicated in the case of Wolcott v. Mead, 12 Met, 516. This course would seem to be, that the property to be replevied is first pointed out to the officer, then, if the parties do not agree on the value, an appraisement is to be made according to the statute, then the bond made and delivered, and then the service completed by the delivery of the goods to the plaintiff.

2. But if this bond were valid in other respects, this action could not be maintained; because the case shows that no sum was ever fixed by appraisers. It appears by the officer’s return that the parties agreed on the value, and no appraisers were ever appointed according to the statute. If the maxim, that that is certain which can be made certain, could apply, it would not avail here; because the amount never was made certain by appraisers in the manner pointed out in the penal part of the bond. It is like a penal bond with the sum left, blank.

Exceptions sustained.