delivered the opinion of the court.

This cause was remanded to the docket at the last term, and in the opinion then rendered we said:

“The judgment appealed from finds no support in the record; for the reason that if does not appear therefrom that any forthcoming bond, on which appellant is a surety, was in fact executed. Counsel for appellee, how*63ever, states in his brief that snch ’ a bond was in fact given, so that we will remand the cause to the docket and continue it to the first call of same by Division A in March, 1917, in order that appellee may, if -he so desires, have a copy of the bond certified to this court by the clerk of the court below.”

The cause now comes on again to be heard, without any attempt having been made by counsel for appellee to re-establish and have certified to us the bond alleged to have been lost since the rendition of the judgment appealed from. In lieu thereof counsel for appellee has made and filed an affidavit stating that he personally knows that such bond was executed and was before'the court when judgment" was rendered. We must try the cause by the record, and not upon statements of counsel not sustained thereby., In event a bond was in 'fact executed and has been lost it can be re-established in the court below under section 3173 of the Code, and then certified to this court, so that, in order for this to be done, the cause will be remanded to the docket and continued.

Remanded and continued.