The court are of opinion that the bond was not conformable to the statute, for want of a sum expressed in the penalty; it was not such a bond as the plaintiff in replevin was bound to give or the defendants entitled to receive. The action must therefore be dismissed. Wolcott v. Mead, 12 Met. 516. Case v. Pettee, 5 Gray, 27.

It is distinguishable from Simonds v. Parker, 1 Met. 508, in this; that in that case the motion was made after the action had been in court several terms.

*364It was also urged, that the defendants, having filed an affida< vit of merits and an answer, have waived their exception. But we think otherwise. In the present case, the motion was made at the earliest term. The decision being against them, whether made at the first, or any later term, they were obliged to file their affidavit and answer, to avoid a default under the rules and practice of the court. They could in no other mode obtain the judgment of this court upon their right in matter of law. It was therefore not a waiver. Cleveland v. Welsh, 4 Mass. 592. Ames v. Winsor, 19 Pick. 247.

Exceptions sustained, and case dismissed.