delivered the opinion of the court. This case comes before the court on a demurrer to the rejoinder. The action was in debt, on recognisance of bail. The question presented by the pleadings is, whether it be necessary-that a return in fact of non est inventus, upon the capias ad satisfaciendum against the principal, should be made previous to the commencement of a suit against the bail. The return day in the execution was past, but the rejoinder states, that the sheriff did not return non est inventus upon the cat sa. until after the capias in the present suit was sued out. This the demurrer admits.
That it is indispensably necessary to sue outa car. sa. against the principal, previous to commencing a suit against the bail, is not denied. This is the proper notice to the bail, that the plaintiff has made his election to proceed against the body, rather than the property of the principal^ and the reason of the rule is obviously, *517that the bail ought to be enabled to ascertain what has been done upon the execution, in order to determine his own liability. This he could not do, while the sheriff has the execution in his possession, as he cannot know what the return upon it will be. The only question which appears to have created any doubts in cases of this kind is, whether an actual filing, as well as a return, was requisite. (1 Black. Rep. 393. Lutw. 1273. 1 Lev. 225. 2 Cromp. 75.) Our statute is explicit, that no suit shall die commenced upon any recognisance of bail, in any civil action, until a capias, or testatum capias ad satisfaciendum, shall have issued against the defendant, in the original action, directed to the sheriff of the county in which such defendant was arrested; and such sheriff shall have returned thereon, that the said defendant was not found within the county ; (Rev. Laws. v. 1. p. 449.) and the, want of such return is declared to be a substantial defence upon the trial against the bail. The issuing of the ca. sa. against the principal, is not mere matter of form, for the purpose of charging the bail. The sheriff is expressly required, to endeavour to serve it upon the defendant, any directions which he may receive from the plaintiff or his attorney, to the contrary notwithstanding.
The Court are, therefore, of opinion, that the defendant must have judgment.
Judgment for the defendant.