11 La. 90 | La. | 1837
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.