
    COCKRAN adsm. DRAKE.
    In debt on recognizance of Special Bail. Motion to set aside Summons against defendant, without costs.
    A ea. sa. must be directed to the sheriff of the county in which the venue is laid ; although the defendant was arrested in another county and entered into recognizance of bail with condition that he pay &c. or render himself to the sheriff of said county where the arrest-was made.
    The bail as well as his principal are bound to take notice where the venue is laid; and should search for a ca. sa. in the office of the sheriff of that county ; to know whether the plaintiff intends to proceed by execution against the defendant’s body.
    After the sheriff’s return non. est., on such ca. sa. and a summons served on the bail, upon the recognizance; the bail having surrendered the principal, must pay costs before the action against them will be dismissed.
    The want of a ca. sa. against the principal cannot be taken advantage of by the bail, on motion ; it is matter of substance and must be pleaded.
    The capias in the original action was served in the county of Sussex. The defendant entered into a recognizance of bail, with condition that the defendant in the original action, if condemned therein, should pay the costs and condemnation money, or render himself to the sheriff of the said county. The plaintiff filed a declaration in that action, laying the venue in the county of Essex ; and having obtained judgment, he issued a ca. sa. thereon to the sheriff of that county; which was returned, wow est, after having laid more than four days in the sheriff’s office. The summons was then issued in this action ■ after which, the defendant in the original action, was surrendered in discharge of his hail. Upon this state of facts,
    
      8. B. Hamilton and J. W. Miller, moved to set aside the summons in this case, without costs.
    
      D. A. Hayes and A. Armstrong, contra.
   The opinion of the Court, by

Hornblower, C. J.

This motion is founded on the idea that in order to fix the bail, a ca. sa. must be lodged with the sheriff of the county in which the defendant was arrested : or, that the plaintiff by laying the venue in a different county from the one in which the arrest was made, has discharged the bail. Neither supposition is well founded. The books cited by the defendant’s counsel, do not sustain him. Tidd pr. 242 and 375; and Bing, on Exeens. 155, in 13 Law Lib. 65, only show, that where the plaintiff declares upon a different cause of action from that which is expressed in the process, or in the affidavit for bail; or where, in the K. B. the plaintiff sues by original writ in one county, and declares in another, the bail is disehargéd. But this latter result was in consequence of a rule of the court of K. B. of Easter T. 2 Geo. II, as appears as well from the books cited by defendant’s counsel, as by 1 Chit, on Pl. 246, 247. That rule has never been recognized in this court, and has been rescinded in England. 3 Chitt. General prae. 453. If however, the want of a ca. sa. to the sheriff of Sussex, was fatal to the plaintiff, it could not be taken advantage of by the bail, on motion. The want cf a ea. sa. is not a mere irregularity; but is a matter of substance, of which, the bail can only take advantage by pleading. Philpot v. Manuel, 5 Dow. and Ryl. 615, in 16 Engl. C. Law R. 244; Dudlow v. Watchorn, 16 East. 39; Thackray v. Harris, 1 B. and Ald. 212; 1 Archb.pr. 290. But it is a sufficient answer to the defendant’s motion in this ease, to say, that the ea. sa. was correctly issued to the sheriff of the county of Essex. In Archb. Prac. 1 vol. 290, it is expressly said that the ea. sa. must be directed to the sheriff of the county where the venue was laid. In Dudlow v. Watchorn, 16 East. 39, to a plea that a writ of ea. sa. had not been duly issued; the plaintiff' replied, a ca. sa. sued out in Middlesex, averring that, that was the county in which the venue had been laid &c. The defendant rejoined that the venue was laid in London, and not in Middlesex; and it was held a good rejoinder, on demurrer. In Bing, on Execns. in note p. 157, 13th Law Lib. 66, it is said, that the ca. sa. should be to the sheriff of the county where the action was laid. The same tiling is repeated in Petersd. on Bail, 357, in 10 Law Lib. 198. The defendant in the original action and his bail, were bound to take notice where the venue was laid; and they should have searched the oflice of the sheriff of that county, if they wished to know whether the plaintiff intended to proceed by execution against the body of the defendant. If the principal had been surrendered to the sheriff of the county of Sussex, and notice thereof given to the plaintiff’s attorney, before this action had been brought, it would have been sufficient. As that was not done, this motion must be denied : but as the surrender has since been made, let this action against the bail, be dismissed, on payment of costs.

Motion denied, but the action against the bail dismissed, on payment of costs  