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Phe opinion of the Court was pronounced l>y

Hutchinson, C. J.

The defendant’s first plea, of nul tiél record, refers to the record of the judgement described in the declaration as the foundation for the execution on which the debtor was committed to prison. That judgement appears correctly described, and was probably proved by the record produced. But there is no question properly before this Court, arising upon that plea. The defendant’s plea of performance concludes with a verification. This would be right or wrong according to the nature of the plea. If it were nothing but a general plea of performance, or one alleged in terms not contradicting the specific allegations of the breach in the declaration, or brought new matter into controversy, It was correct. If it consisted in-nothing but an averment ofperfonnance of all-things -specifically alleged, in the declaration, not to have been performed, it oughtto have concluded to the country. Had this plea concluded-to-the country, ad • ding.the -similiter alone would have 'been necessary. As this plea is, the plaintiff ought either to have demurred specially, because the plea concluded-with a verification, or else to have replied over, praying-an-enquiry by the country. The merely adding the similiter by the plaintiff amounts to nothing. It closes’ no issue at all. And the plea of performance stands as if unanswered wholly. Moreover, the county court rendered judgement upon this second plea, without any issue of law or fact being joined to the court. And they could not decide an issue of fact unless by the agreement of parties. The regular joining an issue of fact to the court, would be sufficient evidence of such agreement of the parlies : but here is nothing of that kind, and nothing which authorized the court to render judgement upon the plea in bar.

We are not disposed, however, lo.occupy much time in crjii-cising *100upon these irregularities, which might be rectified, on terms, alter a reversal or the judgement, while proceeding to render such a judgement as-the county eourt ought to have rendered ¿ and'pass to consider the declaration, which we consider incapable of support. It would have been bad, even if the judgement had been rendered by default. The prison bond, though taken to the sheriff, is taken for the benefit of the creditor; and can be binding upon the signers, only, when the imprisonment is legal. Not that the plaintiff, in a suit upon such a bond, must prove a lawful imprisonment, in the first instance. The bond, reciting that which shows, a lawful imprisonment, is sufficient prima fa-eie evidence to entitle the plaintiff to recover. But yet the defendants are not bound by this. They may show the imprisonment illegal, either from the beginning, by showing that there was no* judgement to warrant the execution, or that the imprisonment, at first legal, has become otherwise,,by reversal of the judgement, or by a payment and discharge. In the present case, the declaration shows, that the bond is founded upon an execution, issued upon a judgement of the same court, for the same sums as the judgement first described in the declaration, but rendered at a eourt hold'en on the first Monday of June, 1329; when the first described judgement was rendered at the term holden on the 22á day of June, in the same year. That is, the judgement was rendered the 22d day of June ; the execution issued upon a judgement rendered the first Monday of June. This variance is as fatal, as a variance in the sums, or parties, or any other particular whatever.

The judgement of this Courtis, that the county court erred in the rendition ofjudgement in said original action ; that the declaration of the original plaintiff, now defendant in error, is wholly insufficient. In the allowance of costs we follow the printed rule of this Court, with regard to the taxation of costs upon writs of ■error. The plaintiffs in error must recover their cost in the prosecution of this writ of error, but no cost in the original suit, because the point on which we now decide was not raised and insisted apon by the plaintiffs in error,, in their defence to the original suit.

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