
    William Crane versus Susannah Shaw.
    Where one is arrested and gives bail to a constable in a county other than that of his residence, a return of non est inventus by the sheriff of such county is sufficient foundation for a scire facias against the bail.
    Scire facias against the defendant, as bail of one Charles Shaw. In a case stated, for the opinion of the Court, it appeared, that the principal was an inhabitant of Bath, in the county of Lincoln, and, being accidentally in this place, was arrested by a constable of Portland, at the plaintiff’s suit, upon an original writ, returnable to the Court of Common Pleas for this county, and the defendant, an inhabitant of Portland, became his bail. The plaintiff, having obtained judgment, sued out his execution, directed to the several sheriffs of Lincoln and Cumberland, and to the constables of the towns in those counties, which he delivered to a deputy of the. sheriff of Cumberland, who returned, that he had made diligent search and could not find * either property or body of the said Charles in his precinct, and therefore returned the execution in no part satisfied.
    If, on these facts, the Court should be of op nion, that the ptaintiff is entitled to have execution against the defendant, she was to be defaulted ; otherwise, the plaintiff was to become nonsuit.
    Longfellow, for the defendant,
    contended, that the writ of execution should have been given to an officer of the county where the judgment debtor lived and had his home. Tn such case, he might have been easily taken. To put the execution into the hands of a sheriff of this county was perfectly futile, and his return ought not to have any operation.
    The only case that seems otherwise is that of Brown vs. Wallace; 
       but there the execution was delivered to the same officer, in effect, who made the arrest; the coroner being but the successor, pro tempore, of the sheriff.
    Daveis, for the plaintiff,
    said, he had relied on the case of Brown vs. Wallace, as decisive of the point made by the defendant in this case. She certainly is as well situated as if the execution had been delivered to the constable who made the arrest; and the Court say, the settled practice had been to deliver it to the same officer who takes the bail. By the same officer must be understood, not the same individual, but any deputy of the same sheriff. There it was a coroner who returned the execution, and it was held sufficient, although the bail had been taken by the sheriff. There is as much privity between the constable and sheriff, as between the sheriff and coroner. In this case, the constable’s term of office might have expired. So, in other cases, the execution may issue for a larger sum than a constable can serve, although the original attachment might have been for a sum within his power.
    The bail has a right to the custody of his principal; and the principal may, therefore, be well supposed to be in the same county with the bail.
    
      
       7 Mass. Rep. 208.
    
   By the Court.

We think this case settled by that of * Brown vs. Wallace. A reason for that decision, not mentioned in the report, and which equally applies to the case at bar, is, that, the principal being at ail times, in legal contemplation, in the custody of the bail, the latter may, at his pleasure, bring him within the precinct of the officer holding the execution, and offer him to the officer to be taken. If the execution, in this case, had been delivered to the sheriff of the county of Lincoln, a return of non est inventus by him would have been sufficient, without search, if there was no fraud or collusion. The right of the bail to the cusody of the principal sufficiently justifies the putting the execution into the hands of the officer making the arrest; or rather, as in the present case, an officer having a greater and more extensive jurisdic tion in the same place.

Defendant defaulted  