
    HARRIS vs. BROWN ET AL.
    Eastern dist.
    
      May, 1837.
    APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.
    No matter can be assigned as error on the face of the record, which might have been cured or explained by legal evidence.
    But where the sheriff’s return shows the bail had surrendered his principal, and, procured his bond to be cancelled, in. the absence of testimony, it will be presumed to have been assented to by the creditor.
    
      So, where the bail bond is transferred to the creditor at any time before trial and judgment against the bail, it is sufficient.
    The plaintiff arrested one Jerry Brown in an action on an account, the 8th February, 1836, and he gave bail. On the 20th February, the bail surrendered Brown and had his bail bond cancelled. The sheriff took Alfred Walley as bail in the second bond, who executed it accordingly.
    On the 25th March, 1836, the plaintiff had judgment for the amount of his claim against Brown. A writ of fieri facias issued, and was returned, no property found, the first Monday of June, 1836, and a ca. sa. was returned, stating the defendant was not to be found, the first Monday in August, 1836.
    On the 5th November, 1836, the plaintiff’s counsel took a rule on Walley, the bail, to show cause within ten days, why judgment should not be rendered against him for the amount of the debt, interest and costs, against Brown.
    The defendant filed a written answer, setting up various grounds of defence.
    On the 29th November, the sheriff assigned the bail bond to the plaintiff, and on the 3d December the cause was tried, and judgment rendered against the bail; he appealed. .
    
      Benjamin, for the plaintiff.
    
      Buchannan, contra.
    
    1. The defendant and appellant assigns for error, that previously to executing the bail bond now in suit, a bail-bond had been taken for the full amount of the debt, which has never been legally cancelled. Code of Practice, 232.
    2. There was no assignment of the bail bond in this case by the sheriff to the plaintiff before taking the rule. The bail bond is the foundation of the suit, and the want of it is fatal. The plaintiff has procured the assignment since he commenced his proceedings, but not until after the bail answered. It was then too late. This is a regular suit, and the very foundation of it is wanting. 2 Louisiana Reports, 349.
    
      error on the face of the record, which might orexpiained'by legal evidence,
    sheriff's return had surrendered his principal and procured his bond to be can-absence of\elti-mony it win be have been nssen-creditor.by the
    bafl°’ 'bond ^is transferred to the time before triag againsÁhe^l! it is sufficient,
   Bullard, J.,

delivered the opinion of the court.

This case is before us upon an assignment of errors. Two errors are assigned by the appellant as apparent on the face of the record.

I. That previously to the date of the bail bond signed by him as surety, a bail bond had been taken with security for the full amount, which had not been legally cancelled at the time the rule was taken on the appellant.

This appears to us to be a matter of fact, which may have been explained by evidence on the trial, and consequently, not assignaMe as error; nor is the objection well founded, in our opinion, that the first bond had not been legally can,t , . , . ¶ . , 7 , . . celled in the manner pointed out by the 232a article of the C0<N of.Practice. The judgment creditor might have an interest in seeing that the second bond was regularly taken, but even if it had not been, perhaps the two bonds might be considered as cumulative. It appears by the sheriff’s return that the first bail had surrendered his principal, and that the 11 bond had been cancelled, and we must presume it was assented to by the plaintiff.

jj_ The second error complained of, is that the bail bond had not been assigned to the plaintiff by the sheriff previously to the rule taken on the appellant, as required by law. The counse^ relies in support of this assignment of error, upon article 235, of the Code of Practice. This is also a matter of fact. The record shows that the transfer from the sheriff is a date anterior to the judgment against the bail. The article cited, required that the plaintiff should exhibit the bond assigned to him, but he could exhibit it only on trial, and if he then shows that it has been transferred to him, that, in our opinion, suffices.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.  