T. The first assigned error is in admitting in evidence the bond sued on. On the trial defendant’s counsel -objected to the admission of the bond in evidence; first, “ because it shows on its face that it is not a delivery bond as provided for by section 3219 of the Revision; ” second, “that it is not a bond to perform the judgment of the court as provided by section 3191 of the Revision; because it does not appear by the record that it ever was accepted or taken or approved by any court or judge.” These objections were ■overruled and the bond with the indorsements thereon .admitted.
Section 3191 provides, that “ If the defendant, at any time before judgment, causes a bond to be executed to the plaintiff, by one or more sufficient sureties to be approved by the court or by the judge, to the effect that the defendant shall perform the judgment of the court, the attachment shall be discharged and restitution made of any property taken under it or the proceeds thereof.” Under this section the approval of the bond and sureties is to be by the court or judge. But the next section provides that the bond “ may, in vacation, be executed in the presence of the sheriff, having the writ of attachment in his hands, or after the return of the writ, before the clerk with the same effect upon the attachment as if executed in court. The sureties in either case to be approved by the officer before whom taken.”
Under this section the bond may be taken and approved by the sheriff, if in vacation, if he has not returned the writ, or by the clerk after such return has been made. There is nothing in the record to show that the writ had not been returned, or that the clerk was not authorized to take and approve the bond. The statute authorized it under a certain state of facts. We will not presume, in the absence of any showing, that those facts did not exist. We find no error therefore in the admission of the bond in evidence.
This evidence was properly rejected. There was no issue to wbicb it was relevant or material. The answer of appellant alleges that the levy of tbe attachment was made in Appanoose county more than twenty-four hours after tbe defenda/nt Durall left Monroe county, etc. This presents an issue entirely immaterial, inasmuch as it is not alleged that the levy was made in Appanoose county more than twenty-four hours after the property levied upon bad been removed from Monroe Bounty. Tbe evidence offered would have supported an allegation like this, but such allegation was not made in the pleadings, and tbe matter alleged was immaterial Tbe statute provides that “ if, after a writ of attachment has been placed in tbe bands of tbe sheriff, any property of tbe defendant is removed from tbe county, tbe sheriff may pursue and attach the same in an adjoining county within twenty-four hours after tbe removal.” Rev., § 3188. In respect to tbe authority of tbe sheriff to follow property removed from bis county and attach it in an adjoining county under this section, it is utterly immaterial when the defendant in tbe attachment has removed from the county, or whether be has removed at all.
The sheriff may levy on the property removed within twenty-four hours after its removal into an adjoining county.
III. Tbe court, against appellant’s objection, permitted tbe plaintiff to prove by tbe testimony of tbe deputy sheriff who made tbe levy under tbe writ of attachment, that at tbe time of making such levy, 7 o’clock p. m., July 20,1870, tbe defendant Durall said to bim, that he bad left Monroe county at 1 o’clock that same morning. This ruling is assigned as error.
The judgment of the court below will be
Affirmed.