¶1delivered the opihion oe the court:
¶2Wm. Ramsay became bail for his son, then under arrest on a charge of felony; the son did not appear at the time stipulated; the fact of non-appearance was entered of record, and an order of forfeiture made, and a summons against the bail directed.
¶3The bail, being a non-resident, could not be served with process; whereupon, the commonwealth’s attorney proceeded against him as a non-resident, and attached some real estate in Louisville, under the act of February 15, 1864 {chap. 317, Sess. Acts, 1863-4, p. 60), and obtained an order of sale. Ramsay prosecuted an appeal to this court, and the judgment of sale was reversed. (MS. Op., June Term, 1865.)
¶4On the return of the cause, Ramsay put in, for defense, the remission of the penalty of the bond, as to him, by the Governor of the State; also, that he was a non-resident of the State when accepted by the officer as bail, and, therefore, the recognizance was not obligatory on him.
¶5This latter defense we regard as wholly untenable. The accused had no right to demand that his non-resident father should be received as bail, however solvent he may have been, nor how much soever property he may have owned in the State, because the statute fixing the qualification of bail requires they should be residents of the State. Still, if the authority taking the bail does accept a non-resident as bail, the recognizance is binding on both the principal and bail, as not being illegal, and founded on a valuable consideration.
¶6The other defense we consider as valid.
¶7*387As this court decided in Commonwealth vs. Spraggins (18 B. Mon., 512), the per cent, allowed the commonwealth’s attorney is upon “judgments upon forfeited recognizances,” not upon the forfeiture of the recognizance, but upon the judgment which he may obtain upon such forfeited recognizances. His right to the per centage does not rest upon the order of forfeiture, but upon the obtention of the judgment to follow the order of forfeiture, such order being an essential prerequisite.
¶8Nor can the order of sale be regarded as such judgment, when, as in this case, it is reversed.
¶9It was a proceeding in rem, and, before such an order should be made, a bond was required, not executed; therefore, the order'was erroneous and reversed, and the cause then stood in every essential particular, as though no order had been made, save that, to prosecute the appeal, the defendant’s appearance was necessarily entered.
¶10The remission being a bar to the recovery of the penalty of the recognizance, the Commonwealth’s attorney could get no judgment therefor, consequently, could get no per centage thereon; only the legal fees of the clerk, sheriff, and commonwealth’s attorney remained unremitted, as these were beyond the executive power.
¶11The judgment below is, therefore, affirmed.