The opinion of the Court was delivered by

The condition of a replevin bond is, to prosecute the suit with effect, and make return of the goods and chattels, if a return thereof shall be adjudged. It is not, as is erroneously supposed, in Kimmel v. Kint, (2 Watts 432), in the alternative, with alternate branches coupled disjunctively, but they are distinct and independent of each other, and a breach of one of them will occasion a forfeiture. Thus it has been ruled, that if the plaintiff neglect to levy his plaint at the next County Court, or if he make default in any of the subsequent proceedings, or do not prosecute the suit with effect, the defendant may take an assignment of the bond. Turnor v. Turner, (2 B. & B. 112); Ex parte Boyle, (2 D. & R. 13); S. C. (4 Moore 616). The term prosecuting with effect, means with success, and extends to one continued prosecution from the commencement until the termination of the suit. Thus where to debt on bond the defendant pleaded that he had prosecuted the suit with effect in the county court, but that a writ of error had been brought in the court above, where the judgment had been reversed; and the plaintiff replied, that the judgment in the court above also was, that the plaint in the court below should abate, and that there should be a return irreplevisable; upon demurring to this replication, the court held that the words, “to prosecute with effect” in the court below, were not confined to the prosecution in that court only, but extended also to the prosecution of the writ of error, as that was part of the suit commenced below. Chapman v. Butcher, (Carthew 248, 519; 1 Show. 400); Gwillim v. Holbrook, (1 Bos. & Pull. 410). So where the plaint is removed into a Supreme Court, the condition of the bond is not satisfied by having prosecuted the suit with effect in the county court; but the plaintiff must follow *34it into the court above. Vaughan v. Norris, (Ca. temp. Hard. 139); Turnor v. Turner, (2 B. & B. 112); 7 Com. D. 269. It has also been ruled, that the bond may become forfeited by not prosecuting the suit without delay. Thus, where the plaint was levied in the county court, and two years were allowed to elapse without any further steps being taken, it was held the obligee might recover, although judgment of non pros was never signed in the county court. Axford v. Perrett, (1 M. & P. 470). And where the plaintiff in replevin is guilty of a breach of the condition, by not prosecuting his suit without delay, it need not appear that the suit is determined. Harrison v. Wardle, (5 B. & Adolph. 146). The same rule holds good when a suit has been discontinued. 15 Com. Law Rep. 82; 11 Com. Law Rep. 230; vide Hurlstone on Bonds 68, 9 Law Lib. 68; Badlam v. Tucker, (1 Pick. 286); 3 Selw. N. P. 1013, note 8; 2 Wils. 41. In the cases cited, no judgment of de retorno habendo was entered. Of course, such a judgment is not indispensable to warrant a recovery on the replevin bond, as seems to have been the opinion of the court in Kimmel v. Kint. It is admitted, that the writ of de retorno habendo is not in use. Indeed, it is doubtful whether such a writ was ever issued in this state. It would therefore seem to be perfectly nugatory to send this case back, that such a judgment may be entered; it would increase the trouble and expense for no manner of advantage to any person; for although it is said, that the surety should not be deprived of an opportunity to discharge himself by a return of the goods, yet it seems very questionable whether, at any time, the defendant could save the forfeiture by a tender of return of the goods. The judgment de retorno habendo is not intended for the benefit of the defendant, but of the plaintiff in the replevin bond, who in some cases perhaps might prefer a return of the goods to the damages assessed by the jury. It would be any thing but an act of justice to permit a person who has wrongfully deprived another of his goods, and retained them in his possession until they were nearly destroyed by time and use, afterwards, when judgment was rendered against him for his wrongful act, to save a forfeiture of the bond by an offer to return the article in its depreciated condition. Nor can the sureties be placed in any better situation than the principal. But be this as it may, we think it very clear that the judgment of the court, in the case at bar, was erroneous. The case is this: Alexander Neely & Co. brought replevin against Eli Gibbs, who is the present plaintiff. Neely obtained judgment against Gibbs in the Court of Common Pleas, which was removed by writ of error to the Supreme Court. On argument, the judgment of the Court of Common Pleas was reversed, but no venire de novo was awarded. And the reason of this entry appears, in the report of the case, Gibbs v. Neely, (7 Watts 305), to have been because, upon the admitted state of facts, the plaintiff could not recover. *35The judgment was advisedly entered “judgment reversed,” without more; for, according to our practice, which saves expense and trouble, such a judgment is a final judgment. Either party was at liberty to ask for a venire de novo, but both were content with the judgment. How then, with this entry on the record, can the defendant say that he has performed the condition of his bond, which obliges him to prosecute his suit with effect, and without delay 1 The case comes directly within the principles of the cases cited above.

Then as to the measure of damages and the manner of assessing them, in Huggeford v. Ford, (11 Pick. 223), it is held that in an action on a replevin bond, the valuation in the writ of replevin is to be considered the value of the property. The defendant confessed a forfeiture of the bond, and the question before the court upon a hearing in chancery was, for what sum judgment should be rendered upon the bond. It can make no difference in the rule, whether the question arises on a confession of forfeiture, or a judgment in demurrer, or on the trial before the jury. It is not recollected that it has ever been ruled in this state, that the plaintiff is held to the value of the goods stated in the writ. On the contrary, the practice has been uniformly otherwise. The court say the plaintiff in replevin sets his own value upon the goods, and as he takes them out of the possession of a person prima, facie entitled to the custody of them, and undertakes to prove a title in himself, which he subsequently fails to do, there seems no hardship in holding him to the value fixed in his writ; and that a different rule would introduce parol evidence, and valuations would be offered, depending on opinion and the variation of prices in the market, which would often lead to injurious consequences. The latter reason would seem to strike at all parol evidence whatever, which like all human testimony, must be in some measure uncertain, but which is indispensable in a great majority of cases, to prevent injustice. It is not necessary nor indeed usual in a declaration, however it may be in a writ of replevin, to insert the price of the cattle, or goods; but when it is done, whether in the writ or declaration, the pleader will take care to fix the outside value, on the supposition that the jury perhaps, would not be at liberty to give more than the estimated value of the plaintiff himself. 3 Saund. 320, note 1, and authorities there cited. It is not usually done with a very nice attention to the real value of the goods, and some injustice would be the result of a rule which makes the value fixed in the writ, conclusive evidence. For these reasons it has ever been considered as prima.facie, but not conclusive evidence. Nor is this doctrine inconsistent with the case of Knowles v. Lord, (4 Whart. 504), which turned on the inviolability of the sheriff’s return to the writ of replevin. This bears no similitude to the value named in the writ. It is true that it is very strong evidence, because it *36may amount to a confession of record; but still it is open to countervailing proof of the real value.

Judgment reversed, and judgment for the plaintiff. Record remitted to the Court of Common Pleas, with direction to award a writ of inquiry to assess damages.