delivered the opinion of the court.

This was a motion by the plaintiff below, in the circuit court of Warren county, to set aside and have vacated an order of sale, made at the October term, 1849, of said court, directing the plaintiff’s judgment to be sold for the payment of the jury, tax, and costs due to the officers of court.

It appears from the record that the judgment was recovered by the plaintiff on the 16th day of April, 1849, that an execution issued thereon on the 1st of June following, and was returned to the October term of said court, nulla bona. It further appears from the order of sale that the plaintiff’s usee was a non-resident of the State.

The question arises upon this statement of the case, whether the court could make the order of sale, at the same term of the court to which the execution issued against the defendants was returned nulla bona.

The first section of the act of 1844, providing for the sale of judgments for the payment of costs, declares that if the plaintiff be a resident of the State, before such order of sale shall be. made, an execution shall have been issued against him, and returned nulla bona.

Thus it appears that in no case can the court order the sale of the judgment of a resident plaintiff, until after the return of nulla bona on executions, issued returnable to different terms of the court, against both the defendant and plaintiff in such judg*665ment. From this it is manifest, that the very earliest period at which the court can entertain jurisdiction of a motion to subject to sale the judgment of a resident plaintiff, is the second term of the court after the recovery of the judgment. The order of sale in the present case, was made at the term of the court next after the recovery of the judgment; and the inquiry arises, whether the legislature intended to make a distinction between the rights of a resident and non-resident plaintiff, in this respect. We think not. It is true that no execution is required to be issued against a non-resident plaintiff before the order of sale shall be made. But in no case can the court take jurisdiction of a motion in this class of eases, until an execution against the defendant in the judgment shall have been returned nulla bona, and then only in the mode, and at the time specified in the law. The reason of the rule is obvious ; the defendant against whom a judgment has been recovered, is the party under our law primarily liable for the costs of the suit. The plaintiff only becomes liable when the fact of the defendant’s inability to pay has been legally ascertained.

This fact having to be ascertained by the return of nulla bona on an execution issued against the defendant, the plaintiff being a non-resident of the State, is not presumed to know at the same term of the court to which the execution is returned, of the liability which has been fixed upon him, by the return upon such execution, or to be at that term of the court in default in discharging a liability, of the existence of which he has no knowledge.

The law failing to provide for actual notice to the plaintiff of the application to sell his judgment, can only be sustained upon the ground that every man is presumed to be ordinarily watchful of his interest, and attentive to his business ; and the plaintiff acting upon this principle might be presumed, within a reasonable time after the return of the execution against the defendant, to be informed of the return made by the officer on the writ, and in this way be informed of his liability to pay the costs. The question then arises, What is this reasonable time allowed to the non-resident plaintiff, within which to gain this *666information as to his liability having become fixed for the payment of the costs of his suit?

The language of the first section of the act already referred to, though not entirely free from doubt, is nevertheless sufficiently clear to give a satisfactory answer to this question. The act provides for the sale of judgments rendered both before and after its passage; and in reading it, to understand fully the meaning of the legislature, it is necessary to note particularly the class of jtidgments to which certain language or clause of a sentence is intended to apply. The whole question, indeed, depends upon the construction to be given to the following sentence, or rather part of a sentence, namely, “ Or if they (meaning the costs) should not be paid on or before the first day of the succeeding term of the court hereafter, or after the return of said execution, it shall be lawful for the court ” to order the sale, &c. Now this language can be rendered perfectly clear and intelligible by merely supplying what is understood, but which is omitted in the last clause of the sentence. It should-then read as follows : “ Or if they (the costs) should not be paid on or before the first day of the succeeding term of the court hereafter, (referring to judgments rendered before the passage of the law,) or on or before the first day of the succeeding term of the court,” after the return of said execution, meaning the execution in a previous part of the section to be returned nulla bona against the defendant, then the court may ■order the sale of the judgment, &e. This being clearly the meaning of the law as well as the intention of the legislature, we are compelled to hold that the order of sale made at the return term of the execution issued against the defendants, is void, and that the court below, therefore, erred in not sustaining the motion.

Judgment reversed, motion sustained, order of sale declared null and void.