¶1The charge to thejury, In this case, was manifestly incorrect. The law supposes the principal to be in the custody of his bail; and the bail may take him when he pleases, and detain him, or surrender him into the custody of the sheriff. Anon. 6. Mod. 231. Ex parte Gibbons, 1 Atk. 238. Anon. 2 Show. 214. [202.] This act he may do personally, or by an authorised agent. Meddowscroft v. Sutton, *861 Bos. & Pull. 61. Fisher v. Fallows, 5 Esp. Rep. 171. Nicolls v. Ingersoll, 7 Johns. Rep. 145. If it were not so, the bail might often be exposed to great and unnecessary hazard.
¶2The death of the plaintiff had not the effect of discharging the bail, or of affecting the recognisance by which he was bound. Before a suit can be commenced against the bail, a ca. sa. against the principal must be sued out, and actually returned, with a non est inventus endorsed thereon. Pearsall v. Lawrence and Doe. 3 Johns. Rep. 514. This is only necessary to evince a breach of the contract; but the liability of the bail exists, though the contract is not broken. If there be an irregularity in the issuing of the ca. sa., this cannot he taken advantage of by the bail; it is error only, of which the principal may avail himself. Cholmley v. Veal, 6 Mod. 304. Aires v. Hardress, 1 Stra. 100. Cholmondely v. Bealing, 2 Ld. Raym. 1096. No obstacle was put in the way of the bail to surrender the principal, by the death of Upson. Notice of the surrender, in all cases, should be given, if possible, to the plaintiff, or his attorney. In case there was no administrator of the deceased plaintiff, or the judgment was not revived in his favour, the party might make^ application to the court for an order, directing what kind of notice should be given in the special case. Even an omission to give notice, does not vitiate the render, although it may subject the bail to costs, incurred by the plaintiff’s future proceeding. (1 Tidd, 240, 1.) The object of notice is, that the plaintiff may charge the defendant in execution, or at least, that he may not be at any further trouble or expense.
¶3Had the principal died, it would have discharged the bail, if it had happened before he had become legally fixed with the debt; but the death of the plaintiff, in the suit, has no such effect.
¶4With respect to the declaration made by Welton, the attorney, that Simmonds was no longer held as bail, it had no effect to release him from his liability.
¶5I would advise a new trial.
¶6New trial to be granted.