
    *Ashby v. Kiger.
    November, 1824.
    Pleading and Practice — Dismissal of Suit — Defendant Resident of Another County. — Where a suit is brought in a Court of competent jurisdiction, and the defendant is held to bail by a justice of the peace, on the ground that he intends to remove ont of the Commonwealth, it is error in the Court to dismiss the suit, although it appears that the defendant is a resident of another county in the State.
    Ashby brought trespass against Kiger in the Circuit Court of Hampshire: and affidavit being duly made by Ashby’s agent, that the writ was sued out to recover mesne profits of land lying in Hampshire, belonging to Ashby, which Kiger had held for many years; that those profits amounted to $1000; and that there was good cause to believe, that Kiger would move out of the Commonwealth before the determination of the suit; thereupon, a justice of the peace of Hampshire endorsed on the capias, an order directing the sheriff to take appearance bail in the sum of $1000. The writ was directed to the sheriff of Hampshire, and returned executed by him, and a bail bond taken according to the precept. Ashby filed his declaration at August rules, 1818; on which a conditional judgment was entered against Kiger and his bail. At September rules, both parties appeared in the office, and the case was continued till the next rules. But, at October term, on Kiger’s motion, and because it appeared that he resided in Harrison county, the Court, holding that the order for bail was improper, ordered the suit to be dismissed. Ashby applied to this Court for a super-sedeas, which was granted.
    Leigh, for the plaintiff in error,
    made three points:
    
      _ 1. That the affidavit was a good foundation for the order requiring bail, and the defendant’s residence in another county no objection to it. 2. That the justice of the peace was competent to make the order. See acts of ' 1S08, c. 6, *§ 3. 3 Old Rev. Code, Supp. 12. 1809, c. 17, § 6. Ibid. 54. Also, 1 Old Rev. Code, ch. 66, § 35, 78. And 3. That, supposing^ the order requiring bail improper, yet being the order of a competent judicial officer, not the plaintiff’s own act, the true course would have been, to discharge the bail, not to dismiss the suit.
    No Counsel for appellee.
    November 12.
    
      
      See principal case cited in Harvey v. Parkerburg Ins. Co., 37 W. Va. 281, 18 S. E. Rep. 583.
    
   The PRESIDENT, delivered the judgment of the Court.

The affidavit being full and a proper affidavit, and the _ cause of action being emphatically within the jurisdiction of the Superior Court, the Court is of opinion, that that Court erred in dismissing the suit. The judgment is therefore reversed, and the cause remanded for further proceedings. 
      
      Judges Cabell and Oabr. absent.
      The case was argued before Judge Carr came into the court.
     