The opinion of a majority of the court was pronounced by

This is a rule taken upon a surety on a bail bond, to show cause why he should not be condemned to pay the amount of the judgment obtained against the defendant, on the ground that the execution under that judgment has been returned “no property found,” and that the bail bondhas been forfeited by the defendant. The rule was discharged by the district court, and the plaintiff appealed.

It appears that the order of arrest was granted by the deputy clerk. This is a judicial act which deputy clerks are not authorized to perform. J. B. Gerald, Minor, v. Theo. B. Gerald, Tutor, 5th Ann. 242. But besides this, the plaintiff has failed to prove that, the defendant left the State within three months from the date of the bond, and without that proof he has no claim against the surety. Philips v. Hawkins, 4 R. R. 219.

The judgment is therefore affirmed, with costs.