Opinion of the court delivered by
Wash, Judge.This was an action of debt, instituted by Webb against Garner & Trigg upon a Kentucky record. The declaration contains three counts. The first count, after setting out the recovery of a judgment in the Clark circuit in the State of Kentucky by the plaintiff Webb Garner; the sueing out of execution upon that and taking of the body of Garner in execution an|i delivering of it to the jailer of the proper county; that Garner while so in custody together with Trigg as his security, executed a replevin bond condition-e<^ ^01'payment to Webb of the amount of the judgment recovered against Gamer, with the costs &c. with-}n one year irom the date, that this replevin bond was to the jailor who thereupon discharged Garner from custody and returned the bond with a certificate of his proceedings aforesaid into the office of the Clark uir-cu’1 court; and averred “that by the laws of the said State of Kentucky in force at the time of giving the judgment aforesaid and ever since has been, viz: at the April term of the Clark circuit court 1820, and at the time of the exeoution and return of the aforesaid replevin bond so executed by said Garner and Trigg as aforesaid, the same upon the execution and return to the clerks office *11as aforesaid, became and was a record of the said circuit court of Clark county of the said State of Kentucky, and then and there had the force and effect of a judgment of the said circuit court of Clark county m favor of the said plaintiff against the said Garner & Trigg; and as such by the laws of the said State was compelled to be kept in said clerk’s office of the said Clark county, and therefore, the said cannot make thereof &c.”
2n(j count like the 1st — -and makes profert of a copy ^.^counUikinhe ITrst — with an a-verment that a scirefacias issued bond, and- judg’t. of execution was boUiedefdsaSainSt lea ded to each count separately and to J.aai0„hole deola"The second count of the declaration is substantially the same as the of a &c.
The third count is substantially the same as the two first, with an additional averment that a scire facias upon the replevin bond was sued out of the Clark circuit court, and judgment obtained thereon for execution against Garner & Iriggfor the amount of the former recovery against Garner and costs, and for the costs of the proceedings on the scire facias &c.
The defendant pleaded to each count separately nul tiel record of the original recovery, non est factum of the replevin bond, and nul tiel record of the replevin bond and return in manner and form as alleged: — He also pleaded to the whole declaration nul tiel record of the original recovery and of the replevin bond and return in manner and form &c., with an averment of the identity of the recoveries, replevin bond and returns mentioned in the several counts &c. And to the third count the defendant pleaded a separate plea that the defendants, during-all the time of the pendency of the proceedings upon the scire facias, were citizens and inhabitants of the State of Missouri and not of the State of Kentucky, that, they were not in Kentucky during the pendency thereof and had no notice of the scire facias and did not appear thereto &c.
Upon the motion of the plaintiff’s counsel the pleas of non est factum were stricken out by the circuit court, on the ground that the same had not been verified by the oath of the party &e. Issues were taken upon the other pleas and the trial of them submitted to the court sitting as a jury. — In support of his case the plaintiff read to the court a transcript of the record of the original judgment recovered in the Clark circuit’court, against Garner, and of the proceedings had in the execution of that judgment down' to the taking and return of the replevin bond irito the Ciadle Circuit Court, as set 'forth ’ in the declaration; and also a transcript of the record of the proceedings had upon the scire facias; together with an authenticated copy of the Kentucky law regulating proceedings *12upon executions, replevin bonds, &c. The defendant then proved the facts stated in his special plea to the third count of the declaration, contesting the validity of the judgment upon the scire facias for want of jurisdiction over the defendants, &c. Upon this state of facts, the moved the court (as by way of asking instructions to a jury) to declare that upoD the evidence given the plaintiff could not recover. It was accordingly so ruled by the court. The plaintiff thereupon suffered a nón-suit and afterwards moved to set it'aside for misdirection, which motion was overruled and judgment given for the defendants, to reverse which the plaintiff now his writ of error in this court.
•Held, that plaintiff cannot recover on the original covfiyfuiat against G. alone, a”d tfnf suit a-foint liability." That pi’ff. cannot recover on the sciremfacias,n cause a judgment for ex’n. and not a judgment’ of recovery, it seems to be void for want of jurisdic-|¿e stategand not being served with process. and not*12The points raised by counsel for the appellees are,
1st, That the plaintiff cannot recover upon the original judgment, that being against Gamer alone, and the present being against Gamer and Trigg upon a joint liability.
2nd, That the plaintiff cannot recover upon thejudg-on the scire facias, because that is a mere judgment for execution and not a judgment of recovery, and because as a judgment of recovery,' it is void for want of jurisdiction of the defendants.
3rd, That the plaintiff cannot recover upon the re-plevin bond, as a mere bond of the defendants, because by his own showing, the bond upon being filed in the Clark Circuit Court became ipso facto, a judgment of that court and thereby the security of the bond was merged in the higher security of the judgment; and because the plaintiff having declared upon it as a judgment he must recover upon it as such or not at all: and
4th, That the plaintiff cannot recover upon the re-plevin bond and return, asa judgment of the Clark Circuit Court, because he gave no evidence clothing the instrument with that effect, &c.
The law on the first point is well settled in favour of the position taken by the appellees’counsel and is so laid down in 1 Chit. pl. 34-5, and most of the elementary books.
On the 2nd point also the law is with the appellees. It is not a judgment of recovery against Garner and Trigg, but merely for execution, or if it be held a judg-°f recovery, the case of Sallee v. Hays and others decided by this court at Bowling-Green April Term 1832, goes far towards maintaining the position contended for ^ aPPellees’ counsel, that the court in Kentucky had no jurisdiction of the defendants in that suit and its judgment is therefore void.
re coaie" two^first counts, as counts “replevin bonds, ^rofert,x°USe 01As to the third point, the counsel for the appellant insists that the two first counts of the declaration are upon the bond and the averment, that the same upon being filed, became a record of the Clark circuit court, was made merely to excuse lire want of profert in the first count, and to justify the profert of a copy in the second count; and is no other way material and was not denied or put in issue, &c.; that the averment was traversable and defendants might have put the truth of the excuse in issue, which they did not think proper to do by a traverse of its truth, and surely have not dotne, upon the plea of nul tiel record, &c.; that the averment of “the force and effect” of filing the bond in the Clark circuit court, is an independent and immaterial averment and not necessary to the validity of the excuse for want of profert, &c. We hold this to be a good and sufficient answer to the ap-pellees’ third point, and places the plaintiff’s right of recovery upon the two first counts of the declaration, upon true and proper grounds. This disproves also of the fourth point raised by the counsel for the appellees’ since it seems to us that the plaintiff didnot seek to recover upon the replevin bond and return as upon a judgment of the Clark circuit court, but upon the replevin bond as a mere bond, of which the Clark circuit court had the legal custody. Upon the whole matter then we think the circuit court erred, and its judgment is reversed and the cause remanded to that court with directions to set aside the non-suit, reinstate the cause and allow the defendant to withdraw his PJcas of nul-tiel record.