
    Hugh Evans, for the use of D. S. Bell, v. Michael Instine.
    If the defendant in debt, upon judgment, would avail himself of the want of process or service, or of his non-appearance in the original suit, he must crave oyer of the record declared on, and set it out.
    Matters of that kind can only he proven hy the record.
    From Champaign county. The plaintiff counts in debt upon two judgments, recovered in Virginia, in 1802, in a suit commenced, by attachment, and makes proferí of the record. The defendant, without oyer, or setting forth the record, pleads in bar, that from a period long before the commencement of the suit, he resided in Canada, out of the commonwealth of Virginia, and that the said suit, upon which the judgment was recovered, was commenced only against his goods and chattels, wherein he was never served with process, and of which he never had notice. To this plea the plaintiff demurred specially, and assigns for cause: 1. That the plea does not deny the existence of the judgments declared on. 2. That it does not deny the defendant’s indebtedness. 3. That it does not allege that the defendant has any offset to the judgments or the notes on which they were rendered.
    D. S. Bell, for the plaintiff,
    cited Coxe’s Dig. 408, 4114 Ohio, 259-262.
    J. Hamilton, for the defendant,
    cited 9 Mass. 462; 15 Johns 121, 140; 1 Pet. 74; 5 Johns. 37, 41; 4 Conn. 119; 9 East, 192; 1 Dal. 261; 8 Johns. 90, 197; 13 Johns. 192.
   Judge Wright

delivered the opinion of the court:

Counsel have argued this demumsr, as if it raised the question, how far a judgment, rendered in a sister state, without service of ^process, or appearance by the defendant, was conclusive in [118-its character? But, in our opinion, that question is not before us. The two judgments upon which the plaintiff counts, he alleges remain in full force of record in Virgin^.

The defense impeaches the plaintiff’s right to recover, because-the process was not served upon him, and because he never appeared to, or had knowledge of the suit. This matter, if true, appears on the record, which, by the profert, is offered to the defendant’s inspection. It can only be brought to the view of the court, as a defense by oyer, and setting it out in the plea. All allegations, in pleading of matter of record, present an issue for the court, to be determined by inspection; but this record is not yet presented to our view. The pleader can not, as in this case, rely upon things of record, as if they were in pais. The rules of pleading ■do not permit such a course. The demurrer only admits what is well pleaded ; and as this defense is not well pleaded, it receives no aid from the technical admission. Taking the plea as upon a general demurrer, a majority of us think it insufficient. This opinion renders it unnecessary to examine the cause offered for demurrer. Judgment for plaintiff.  