vided by the act entitled "An act to exempt property from sale in certain cases," approved February 17th, 1852, and the amendments and the acts in addition and supplemental thereto.

As to the amount allowed exempt when a debtor makes an assignment for the benefit of creditors, and is indebted under laws allowing different amounts as exempt, see O'Neil v. Beck, 69 Ind. 239.

[1881 S., p. 240. In force September 19, 1881.]

731. (719.) Levy and offer to sell.-507. When an execution against the property of any person is issued to the sheriff, he shall serve said execution upon the defendant or defendants in said county, and levy the same, if not paid, upon property, and make at least one offer to sell property levied upon, within sixty days after such execution comes to his hands, if property can be found, unless otherwise directed by the plaintiff or plaintiffs, or his or their agents.

Service of an execution is notice to the defendant of its contents, with a demand for satisfaction. Terrell v. State, ex rel., 66 Ind. 570; Guerin v. Kraner, 97 Ind. 533.

An officer must levy an execution without an indemnifying bond. Bosley v. Farquar, 2 Blkf. 61; State, ex rel., v. Sandlin, 44 Ind. 504.,

All property of the defendant is prima facie liable to execution; and so remains until some claim for exemption is interposed. Terrell v. State, 66 Ind. 570.

But an officer is not bound to levy on property that may be claimed as exempt. State, ex rel., v. Harper, 120 Ind. 23.

If an undertaking of bail is void, a levy need not be made on the property of the bail. Houghland v. State, ex rel., 43 Ind. 537.

An officer should levy the execution first received when he has several against the same person. Moore v. Fitz, 15 Ind. 43; Bragg v. State, ex rel., 30 Ind. 427.

Failure of an officer to levy an execution renders him liable for damages sustained. State, ex rel., v. Madison, 30 Ind. 390; State, ex rel., v. Sandlin, 44 Ind. 504; Miller v. State, ex rel., 61 Ind. 503; Terrell v. State, ex rel., 66 Ind. 570.

Failure to levy an execution within sixty days does not of itself render an officer liable. State, ex rel., v. Blanch, 70 Ind. 204.

Failure to make a levy does not render the officer liable for full damages unless the debt is lost. State, ex rel., v. Hammond, 72 Ind. 472.

An officer is only liable to parties for failure to make a levy. State, ex rel., v. White, 88 Ind. 587.

Insolvency of defendant is a good defense for failure to levy an execution. State, ex rel., v. Neff, 74 Ind. 146.

The levy should describe the property with reasonable certainty. Law v. Smith, 4 Ind. 56.

In order to make a levy on personalty, possession thereof must be taken. Dawson v. Sparks, 77 Ind. 88; Standard Co. v. Bretz, 98 Ind. 231.

If the property is left with the debtor with power to dispose of the same, the levy is invalid. Wunderlich v. Roberts, 67 Ind. 421.

Property in the custody of the law is not subject to levy. Pipher v. Fordyce, 88 Ind. 436; Stout v. La Follette, 64 Ind. 365.

Property in the hands of the debtor should be levied on before that sold by him. Sidener v. White, 46 Ind. 588.

The levy upon sufficient property to satisfy an execution is prima facie a satisfaction thereof. Stewart v. Nunemaker, 2 Ind. 47; Lindley v. Kelley, 42 Ind. 294; McIver v. Ballard, 96 Ind. 76; Richey v. Merritt, 108 Ind. 347.

If the first levy is sufficient to satisfy the execution, it must be disposed of before a second levy is made. Cooley v. Harper, 4 Ind. 454; Lindley v. Kelley, 42 Ind. 294. An ineffectual levy may be abandoned by the officer. Hutchens v. Hanna, 8 Ind. 533.

732. (720.) Money may be levied on.-508. Current coin and lawful money, and such bank-notes as the plaintiff is willing to receive as money, may be levied upon and returned on execution, without sale, as so much money collected.

Money collected by an officer for a debtor can not be levied on while in the hands of the officer. Winton v. State, ex rel., 4 Ind. 321.

Money paid to the clerk of the court for the debtor is not subject to levy while in the hands of the clerk. Sibert v. Humphries, 4 Ind. 481; Hooks v. York, 4 Ind. 636.

733. (721.) Bills, notes, etc.-509. Bills, notes, drafts, and checks, or other evidences of debt, issued by any moneyed corporation or bank, or by this state or the United States, and circulating as money, may be levied upon as personal property, and sold on execution.

See McClelland v. Hubbard, 2 Blkf. 361; Johnson v. Crawford, 6 Ind. 377.

It is only such evidences of debt as are mentioned in the statute that are subject to execution. Marion, etc., Co. v. Norris, 37 Ind. 424.

734. (722.) Goods pledged, etc., subject to lien.-510. Goods and chattels pledged, assigned, or mortgaged as security for any debt or contract may be levied upon, and sold on execution against the person making the pledge, assignment, or mortgage, subject thereto, and the purchaser shall be entitled to the possession, upon complying with the conditions of the pledge, assignment, or mortgage.

Mortgaged chattels may be levied on and sold subject to the conditions of the mortgage. Broadhead v. McKay, 46 Ind. 595; Conrad v. Wilson, 66 Ind. 437; Geisendorff r. Wilson, 70 Ind. 418; Byram v. Stout, 127 Ind. 195.

Until the right of the mortgagor of chattels to redeem the same is lost, such chattels are subject to levy. Landers v. George, 49 Ind. 309.

The officer has the right of possession of the chattels for the purpose of making the sale. Olds v. Andrews, 66 Ind. 147; Sparks v. Compton, 70 Ind. 393.

If the officer delivers the chattels to the purchaser before he complies with the terms of the mortgage, such officer will be liable to the mortgagee. Kackley v. State, ex rel., 91 Ind. 437; Colling v. State, ex rel., 3 App. 542; Slifer v. State, ex rel., 114 Ind. 291; McDaniel v. State, ex rel., 118 Ind. 239.

The purchaser is not entitled to the possession of the chattels until he complies with the mortgage. State, ex rel., v. Milligan, 106 Ind. 109.

The officer must take notice of recorded mortgages. McDaniel v. State, ex rel., 118 Ind. 239; Collins v. State, ex rel., 3 App. 542.

735. (723.) Shares of stock-Sheriff's duties and powers.-511. Shares of stock in any corporation or company may be levied upon and sold in the county where the office and books showing the shares of stock and stockholders of the corporation or company are kept; and the sheriff shall transfer the stock, subject to the rights of the corporation or company. The sheriff shall have access to the books of any corporation or company in his county, for the purpose of making the levy; and if refused access, the court shall enforce the right. The

shares of stock subject to be levied upon shall be bound by the execution from the time of the levy; and when such levy is made, the sheriff shall leave the notice thereof with the officers of the company, and such levy shall constitute a lien upon the stock from the time of such levy.

The officer is entitled to transfer shares of stock sold, on the books of the corporation, and may enforce such right by mandate. State, ex rel., v. Bank, 89 Ind. 302.

736. (724.) Debt or thing in action, when given up.-512. Any debt or thing in action, legally or equitably assignable, may be levied upon, when given up by the defendant, and sold on execution, in the same manner as other personal property.

A judgment can not be levied on and sold without the consent of the owner. Steele v. McCarty, 130 Ind. 547.

737. (725.) Assignment thereof by sheriff-Effect.-513. The sheriff making the sale of any such debt or thing in action shall assign and deliver the same to the purchaser, and the assignment shall have the same effect as if made by the execution defendant at the time of making the levy thereon, and shall be treated as so made.

The debt or thing in action contemplated in the last two sections must be some tangible cause of action, such as a writing or itemized account, which is capable of assignment and upon which suit may be instituted. Bay v. Saulspaugh, 74 Ind. 397.

738. (726.) Pleading and proof in action thereon.-514. In any action in which such assignment is declared upon or stated, it shall not be necessary to plead or prove any judgment or execution by virtue of which the sale was made, nor to prove the execution of the assignment, unless the same be denied under oath.

739. (727.) First levy on property selected by debtor-Proviso.— 515. When any execution shall issue against the real or personal property of any person, it shall be the duty of the sheriff to levy the same, first upon that part of the property designated by such person, if there be no reasonable doubt that he is the owner thereof, and if designated in time to enable the sheriff to levy and sell without unnecessary delay.

The failure of a debtor when first called upon by the officer to designate the property to be levied upon, does not prevent him from afterward designating it. State, ex rel., v. Willis, 33 Ind. 118.

The sheriff is not required to go to the execution debtor, to get him to exercise the right to designate property to be levied upon; the debtor should go to the officer. Drake v. Murphy, 42 Ind. 82.

If the debtor designates the property to be levied upon, he can not complain that a levy is made. Murphy v. Hill, 77 Ind. 129.

740. (728.) When none designated, levy general.-516. If no property be thus designated, it shall be the duty of the sheriff to levy the execution upon any property of the debtor which can be found. subject to execution.

741. (729.) When insufficient, levy general.-517. If the property thus designated be insufficient to satisfy the execution, the sheriff shall

levy the same upon such other property subject to execution as can be most readily found, sufficient, in addition to the property designated, to satisfy the execution.

742. (730.) Personalty first sold-Exception-Debtor's residence. -518. In all cases where the personal estate of the debtor subject to execution is insufficient to satisfy the execution, the real estate shall be exempt from levy and sale until the personal estate is levied upon and sold, unless the debtor shall direct otherwise; and the principal messuage, lands, or tenements of the debtor, or upon which he may reside, shall not be levied upon, unless other property can not be found sufficient to satisfy the execution in the hands of the sheriff.

If personal property is incumbered for its value it need not first be sold. Detrick r. State Bank, 6 Ind. 439.

The personal property of all the debtors need not first be sold before levying upon the realty of one. Drake v. Murphy, 42 Ind. 82.

To affect the validity of the sale of lands without first selling personalty, it must appear that the officer had knowledge of the personalty, or could have discovered the same. Nelson v. Bronnenburg, 81 Ind. 193.

The irregularity must be taken advantage of by the debtor before the time for redemption expires. Wright v. Dick, 116 Ind. 538.

If before the sale of lands personal property is offered to the officer, it should be sold first. Davis v. Campbell, 12 Ind. 192.

743. (731.) Further levies and sales.-544. If the property levied on shall not sell for a sum sufficient to satisfy the execution, the sheriff shall make a further and sufficient levy, if sufficient property can be found, and proceed as upon the first levy, and return his doings thereon. When property sufficient to satisfy an execution is levied upon, such property must be disposed of before another levy can be made. Cooley v. Harper, 4 Ind. 454; Lindley . Kelley, 42 Ind. 294; McIver v. Ballard, 96 Ind. 76.

744. (732.) Sale for two-thirds appraised value-Exception.-519. No property shall be sold on any execution or order of sale issued out of any court for less than two-thirds of the appraised cash value thereof, exclusive of liens and incumbrances, except where otherwise provided by law.

The debtor in a judgment for tort is entitled to appraisement upon property taken in execution. Smith v. Davis, 58 Ind. 434.

When an appraisement is required a sale without its being made is invalid. Cummings. Pfouts, 13 Ind. 144; Fletcher v. Holmes, 25 Ind. 458; Stotsenberg v. Same, 75 Ind. 538; Scheffermeyer v. Schaper, 97 Ind. 70.

The appraisement is regulated by the law in force when the contract was made. Hutchins v. Hanna, 8 Ind. 533; Rawley v. Hooker, 21 Ind. 144.

When the date of the contract does not appear, the law of the date of the judgment controls appraisement. Indiana, etc., R. R. Co. v. Bradley, 15 Ind. 23.

On contracts executed without this state, the law in force at date of judgment controls. Hutchins v. Barnett, 19 Ind. 15.

In sales on ditch assessments the property must be appraised. Cox v. Bird, 88 Ind. 142.

When any of the executions levied are collectible without relief of appraisement, the property may be sold. Shirk v. Wilson, 13 Ind. 129.

When a part of a judgment is collectible without relief, property may be sold without appraisement. Mugge v. Helgemeier, 81 Ind. 120.

The officer may examine the record and other evidence to ascertain whether an appraisement is required or not. Rawley v. Hooker, 21 Ind. 144.

An execution defendant may consent that property may be sold without appraisement. Stockwell v. Byrne, 22 Ind. 6.

Appraisement will be presumed where required, the contrary not appearing. Mercer v. Doe, 6 Ind. 80; Thurston v. Barnes, 10 Ind. 289; Evans v. Ashby, 22 Ind. 15; Hale v. Talbott, 86 Ind. 447; Ferrier v. Deutchman, 81 Ind. 390.

When an appraisement is required the rents and profits of lands should be appraised. Davis v. Campbell, 12 Ind. 192; Railway Co. v. Bradley, 15 Ind. 23.

745. (733.) Sheriff to ascertain cash value.-520. The sheriff, immediately upon levying an execution, shall proceed to ascertain the cash value of the property levied upon.

746. (734.) Appraisers-Selection-Duties.-521. For that purpose two disinterested householders of the neighborhood where the levy is made shall be selected as appraisers, one of whom shall be selected by each of the parties or their agent; or, in the absence of either party or his agent, or upon the failure or refusal of either party, after three days' notice by the sheriff, to make the selection, the sheriff shall proceed to select the appraisers. They shall forthwith proceed to appraise the property according to its cash value at the time, deducting liens and incumbrances; and in case of their disagreement as to the value, the sheriff shall select a like disinterested appraiser, and, with his assistance, shall complete the valuation; and the appraisement of any two of them shall be deemed the cash value.

The appraisers should have the requisite qualifications. Leach v. Swan, 8 Blkf. 68. One who has acted as an appraiser once is not competent to act again upon the same property, though the first appraisement was void. Bowles v. Stout, 60 Ind. 267.

747. (735.) Vacancy.-522. If any appraiser shall fail to act or to complete such valuation, another shall be chosen in his stead, as above provided.

748. (736.) Liens and incumbrances, list of.-523. It shall not be the duty of the sheriff or appraisers to ascertain the amount of liens and incumbrances; but either party may furnish the sheriff with a list thereof, with the amount and nature of each.

749. (737.) Schedule and valuation.-524. The sheriff shall furnish the appraisers a schedule of the property levied on, with the incumbrances made known to him, and they shall proceed to fix and set down opposite to each tract, lot, or parcel of real estate, and of the several articles of personal property, the cash value, deducting liens and incumbrances; which schedule they shall return to the sheriff.

No liens or incumbrances can be considered at the time of sale unless the amounts thereof are set forth in the appraisement. Stumph v. Reger, 92 Ind. 286.

750. (738.) Oath of appraisers.-525. The appraisers shall take and subscribe an oath annexed to such appraisement, to the effect that the property mentioned in the schedule is, to the best of their judgment, worth the sums specified therein; that the same is the fair