The power of the court to render a summary judgment against the sureties on the undertaking, is settled by the case of Boy ston Insurance Co. v. Davis, at this term.

"We are not aware of any precedent other at law or in equity, or under the mixed mode of procedure introduced by C. 0. Pi, which will sustain the order made by his Honor, on affi lavit, directing the Clerk not to issue execution against Arendell (the defendant in the action) until further order.

The plaintiff had obtained a judgment against Arendell for the pun¡¡, anl was entitle.! to the specific article and the damages assessed for its detention, and in case the property could not be had, then to the damages assessed for its valuation as well as the damages assessed for its detention. It is established by the judgment, that Arendell wrongfully held possession of the pony, which was the property of the plaintiff. Can any sound reason be suggested why the plaintiff should not have the fruit of his recovery ?

But if upon any supposition the eom-t liad power to say to *88 tbe plaintiff, yon must give up your property and accept damages in lieu thereof, for it can make no material difference to you whether you get your pony or its value in money, and your accepting its value will enable the court to do justice all around and settle a controversy that will grow up between Arendell and E. E. Perry, from whom (taking the affidavit to be true) he purchased, then other difficulties arise. E. E. Perry will say, you are seeking to make me liable to Arendell, upon a warranty of title, in a proceeding on affidavit, and in an action to which I am not a party of record and have no right to be heard ; which is contrary to the laws of the land and against the Bill of Nights.

The sureties will say, admit that E. E. Perry sold the pony to Arendell, and that it was at the request of Perry he signed the undertaking of Arendell to surrender the pony if plaintiff recovered in the action, still we were the sui'eties of Arendell, although we became so at the request of Perry, and by reason of our becoming the sureties of Arendell the pony was put back into his possession ami he still has the pony. We signed the undertaking that Arendell would surrender the pony in the event that the plaintiff proved title, because of the fact that the pony was liable in the first instance, and we became his sureties relying on that fact. This is a manifest alteration of the obligation of the contract, if Arendell can be allowed to keep the pony, and by the action of the court throw upon us the burthen of paying the damages in the first place, and then seeking relief against E. E. Perry who is not a party of record or bound in any way by the action of tire Judge. In other words the sureties insist that the Judge has put the boot on the wrong foot and ought to have allowed the action to take its regular and ordinary course, viz: let Arendell, the defendant of record, who has received the benefit of retaining possession of the pony, by the fact that he was enabled to do so, by our undertaking for him to see the pony delivered up, if plaintiff succeeded in the action, surrender the pony to *89 plaintiff and pay the damages for its use, while he had the benefit of its services; that is the foot to put the boot on, and then let him and E. E. Perry settle the matter as to warranty of title.

There is no precedent to support the ruling of his Honor, and I have treated it in a familiar way for the purpose of illustrating the danger of departing from the settled precedents and forms of the law, upon broad notions of doing complete justice under C. C. P.

Error. Judgment below modified so as to strike out the order to the Clerk, and allow execution on the judgment against the defendant.

Pek Cukiam. Judgment accordingly.