Gilchrist, C. J.
We take it for granted in this case, that the affidavit was upon the execution at the time the officer notified the bail. It should have been so, because if the bail desire to surrender the principal, there should be an officer who has competent authority to arrest him upon the execution, which he could not do unless he had an execution authorizing the arrest, by having upon it such an affidavit as the law requires.
It is argued that the affidavit is insufficient. Ch. 185, 8, Rev. Stat. provides that an arrest shall not be made unless there be an affidavit stating that the defendant conceals his property, or that there is good reason to believe that he is about to leave the State to avoid the payment of his debts.
Now the defendant was arrested upon such an affidavit, and the case finds, that before judgment he left the State, and has not returned. For that reason, the plaintiff could not make an affidavit upon the execution in the words of the statute. But the statute must have a reasonable construction, and not such a construction as would deprive the plaintiff of the remedy intended for him. The statute did not mean that the plaintiff should not have the right to arrest the defendant, where, having left the State, he remains absent up to the time of instituting proceedings against the bail, and where the plaintiff has made the only affidavit the nature of the case will permit.
The opinion of the Court is, that the execution was not irregularly or improperly issued or used. It was proper for the clerk to issue it, that there might be an affidavit placed upon it, and the subsequent use of it was not improper nor irregular. According to the provision made in the case, there must therefore be
Judgment for the plaintiff.