First, as to the objection, that the plaintiff’s attorney instructed the sheriff not to serve the ca. su, but to return it “non est,” we are of opinion it cannot prevail. How far it may be proper for the legislature to interfere, or for the court, by a prospective rule to require that a ca. sa. shall bo prosecuted in good faith, and the defendant, if possible, arrested, before any proceedings shall be instituted against the bail, is nou now the question. We must decide this case, upon the law and the rules of practice as they now exist. It has more than once, recently, been decided, that the rules of practice of the court oS King’s Bench, recognized here, at the time of our revolution, are in force, and regulate the practice of this court, except so far as they have been superseded by Acts of Assembly; or by new and positive rules of this court; and excepting also, such rules.of the King’s Bench, as are rendered useless, by the organization of this-court, or are incompatible with the nature and genius of our judicial institutions. Accordingly, we fmd that in 1791, in Armstrong v. Davis, Coxe R. 110, it was held by this court, that the rules of proceedings against bail, in Westminster Hall, were in force here; and that case and what was there said by the court, was expressly recognized and approved of by Chief Justice Ewing, who delivered the opinion of the court, in Boggs v. Chichester, 1 Green’s R. 209. In England, as appears by the case of Hunt v. Coxe, 3 Burr. 1360, decided in 1762, theca, sa. against the principal, was considered little more than matter of form; that leaving it in the sheriff’s office for four days, was no - tice to the bail, that the plaintiff intended to proceed against the person of the defendant, and it was held to be incumbent on tho bail to search, whether any ca. sa. was left in the office. Not* would the court, enter into an examination, by affidavit whether *449the ca. sa. had been actually returned; and if the want of such return was pleaded, the plaintiff might file it, at any time before he put in a replication to such plea, see S. C. in 1 Bl. R. 393. It is.true, if the defendant is in the sheriff’s custody, either on civil or criminal process, he cannot return non est inventus, so as to make bail liable. Forsyth v. Marriott, 4 Bos. & Pul. 251; Burkes v. Maine, 16 East. 2; but the sheriff is not bound to arrest the defendant upon a ca. sa. lodged with him for fixing the bail, even if he knows where the defendant is, and can arrest him ec well as not, Petersd. on bail, 359; 2 Tidd’s Pr. 993.

Secondly, It was objected that this action ought to have been brought in the same court in which the recognizance was taken. But there is nothing in this objection. The cases cited from the New York reports, do not sustain the position insisted on by counsel. Davis v. Gellett, 7 Johns’. R. 318, was debt on a recognizance of bail which had been taken in the Common Pleas, cud yet the suit was sustained in the Supreme Court. Haswell v. Bates, 9 Johns’. R. 80, was on a bail bond given in the Common Pleas, nevertheless the Supreme Court sustained .the action, unying they would give the same relief to the bail, as they would he entitled to, in the court below. Gardner v. Burham, 12 Johns’. R. 459., is to. the same effect. It is true, that in Burtus v. McCarly, 13 Johns’. R. 424, the court say, that a suit on a recognisance of bail, must be brought in the county where the original action was commenced, and they set aside the proceedings on that ground. But'it Would seem from what was said by the court in the four cases above referred to, and especially in that of Davis v. Gillett, that the practice in New York is in some measure controlled by a statute of that state. Upon general principles, I do not see any objection to bringing an action in' one court, upon a recognizance of bail given in another court. The reason given in the books of practice, why an action on a bail bond, must be brought in the same court in which it was given, is, the equitable power which courts exercise over actions brought on those bonds, by giving summary relief under the statute. But this reason, oven if a good one, does not apply to the case of an action on a recognizauce of bail. Hughes v. Hughes, Penn. R. Harr. ed. 432.

The Third objection however, is fatal; and this case shows i'tbe wisdom and justice of the rule of Easter Ter. 15 Geo. 2; *4501 Tidds Pr. 84; 2 Id. 995; 1 Sell. Pr, ch. 3, sec. 1, E. 3 p. 81, by which it is provided, that the process shall be, to answer to a plea of debt “ upon recognizance;” or otherwise the defendant shall not be bound to accept of a declaration upon a recognizance of bail. This clause was directed to be inserted in the process against bail, when sued in an action of debt upon the recognizance, to apprize them of their situation, and to protect them from being taken by surprise. Petersd. on Bail, ch. 12, sec. 1, page 351, in 10th Law Lib. When bail are proceeded against by scLJa. they are apprized by the very terms of the writ, of the nature of the claim against them; and by our statute, Elm. Dig. 433, pl. 125, 126, such writ must either be served on .the defendant or advertised in a certain manner, before any judgment can be had thereon. The rule of Easter T. 15 Geo. 2, has never been repealed or abrogated by any act of our legislature, nor by any rule or practice of .this court, and never ought to be, unless some other adequate provision shall be made to protect bail, and their executors and other representatives, from being fixed for a debt, by surprise, as these defendants would be, if this proceeding should be sustained. Courts, as well in England, as in this country, have gone further to protect and relieve bail, than they did formerly: as may be seen by reference to Petersd. on Bail, 363 and the cases there cited; and among other American cases, to those of Van Renselaer v. Hopkins, 3 Caines, 136; Boardman et al v. Fowler, 1 Johns’. Cas. 413; and Livingston v. Bartles, 4 Johns’. R. 479. In my opinion, the defendants are not bound to plead to the declaration that lias been filed against them on this writ, and the whole proceeding ought to be quashed and set aside.

All the judges concurred.

Proceedings quashed.