dissenting. — I dissent from that portion of the opinion of this court which relates to the right of the District Court to set aside the order awarding the change of venue to the defendants.
When the change of venue was allowed upon sufficient ¡reason, there was no power in the District Court to set aside the order, on the ground that the defendants failed or refused to give bail for their appearance to answer the indictments at the next term of the District Court for the county to which the venue was ordered to be changed.
*152The consequences of the failure or refusal of the defendants to give bail, within forty-eight hours after the order for the change of venue is allowed, cannot be fixed by rule of court to be that the order for change of venue shall be set aside, and the defendants tried in the county where the indictments are found. The alternative of such failure, or refusal, has already been fixed by law. The defendants are to be committed to the custody of the sheriff to be transferred by him, in default of bail, to the county to which the venue has been changed.
The court can not affix as the penalty of failure, or refusal to give bail, that the order for the change of venue is revoked. The condition has already been fixed by the law; the party must go into the custody of the sheriff. If he fails to exercise his privilege of giving bail, he must stand committed. He is in contemplation of law, in custody at the time the order of the change for the venue is made. If not actually so he should be called in his bond and required to submit himself to the jurisdiction of the court, and either give a bond for his appearance in the other jurisdiction, or yield himself to the custody of the sheriff. If he fails to answer his bail bond should be forfeited. But the District Court has no power by rule to change the law, or affix any condition to the order for the change of venue, when the same has been allowed upon sufficient cause.