[1881 S., p. 240. In force September 19, 1881.] 868. (856.) Arrest-Conditions and manner.-139. A defendant in a civil action can be arrested and held to bail only upon the conditions and in the manner prescribed in this act. Statutes in restraint of personal liberty must be strictly pursued. Ramsey v. Foy, 10 Ind. 493. The statute is constitutional. Baker v. State, ex rel., 109 Ind 47. 869. (857.) Order of arrest-Affidavit.-140. An order for the arrest of the defendant shall be made by the court, in term time, in which the action is brought, or by the clerk thereof, in vacation, at the commencement of the action, or at any time before judgment, when there is filed in the office of such clerk an affidavit of the plaintiff, his agent or attorney, specifying the plaintiff's right to recover an existing debt or damages from the defendant, and stating that he believes the defendant is about to leave the state, taking with him property subject to execution, or money, or effects which should be applied to the payment of the plaintiff's debt or damages, with intent to defraud the plaintiff. It is only in cases of fraud that a debtor can be either arrested or imprisoned. Swift v. State, 63 Ind. 81. An affidavit and bond must be filed before the order of arrest can issue. Ramsey v. Foy, 10 Ind. 493. An order of arrest may be issued before the debt is due. Fitzgerald v. Gray, 59 Ind. 254. 870. (858.) Plaintiff's undertaking.-141. The order of arrest shall not be issued until there has been executed and filed in the office of the clerk of such court, by one or more sufficient sureties of the plaintiff, to be approved by the clerk of court making the order, a written undertaking to the effect that the plaintiff shall pay to the defendant all damages which he may sustain by reason of the arrest, if the order is wrongfully obtained, not exceeding double the amount of the plaintiff's claim stated in the affidavit. If a bond is not filed the writ should be quashed. Ramsey v. Foy, 10 Ind. 493. The undertaking may be amended by filing a new one. Fitzgerald v. Gray, 59 Ind. 254. 871. (859.) Sheriff to execute order-Contents.-142. The order of arrest shall be addressed and delivered to the sheriff. It shall state the names of the parties to the action, the court in which the action is brought, and the amount of the plaintiff's claim specified in the affidavit; and shall require the sheriff to arrest the defendant, and hold him to bail in the sum of the plaintiff's claim, with the costs of the action, and to make return of the order on a day to be named therein, with the recognizance, if any is taken. 872. (860.) Arrest.-143. The sheriff shall execute the order, by arresting the defendant, and keeping him in custody until discharged by law. 873. (861.) Recognizance of special bail.-144. When an order of arrest and bail is executed, the sheriff shall take a recognizance of special bail of some responsible person, resident of this state, in substance that the surety acknowledges himself special bail for the defendant in the action; which shall be indorsed on the order of arrest, and signed by the surety, and shall have the force and effect of a recognizance of special bail, and be obligatory as such. 874. (862.) Return.-145. It shall be the duty of the sheriff to return the order of arrest to the office whence it issued, immediately upon taking and approving of the recognizance of special bail, when bail is taken, and in all other cases, on the return day, and in all cases the officer shall indorse his doings thereon. 875. (863.) Effect of recognizance.-146. Any such recognizance of special bail shall only amount to an undertaking that the defendant will surrender his body, or the money, property, and effects, or the value thereof, held or owned by him at the time of filing such affidavit; and in default of such surrender, the surety in such recognizance shall only be liable for the amount of the property, moneys, and effects which the plaintiff may show the defendant to have held or owned at the time of filing such affidavit exceeding the amount exempt from execution. The surrender of the principal in execution releases the sureties. Shields v. Smith, 78 Ind. 425. A request by the creditor to the sureties not to surrender the principal will release the sureties. Shields v. Smith, 78 Ind. 425. Discharge of the principal by due process of law releases the sureties. Shields v. Smith, 78 Ind. 425. A judgment against the principal is conclusive against the sureties in an action on the bond. Lewis v. Brackenridge, 1 Blkf. 112. 876. (864.) Habeas corpus.-147. When any person shall be committed to prison on an order of arrest for want of special bail, he may sue out a writ of habeas corpus in any court, or before any judge of competent jurisdiction; and on the return thereof the plaintiff shall be compelled to show that the facts alleged in the affidavit, on which the defendant is held to bail, are true; and on failure to do so, the defendant shall be discharged. This section is not applicable to persons arrested on writs of capias issued by justices of the peace. Dwire v. Saunders, 15 Ind. 306. 877. (865.) Length of detention.-148. When any person is committed for want of bail, he shall be held in prison (unless he is bailed or otherwise legally discharged) until final judgment in the action in which he is arrested; and if the judgment be against him he shall be held for such time thereafter as the court shall direct, not exceeding ten days. 878. (866.) Plaintiff may object to insufficient bail-Notice.-149. If the plaintiff deem the bail insufficient, he may, at the term to which the writ is returnable, or at any term thereafter before final judgment, object to the sufficiency of the bail, by giving three days' notice of the objection to the sheriff. 879. (867.) Hearing-Proceedings-Liability of sheriff.-150. At the time specified in such notice, the court shall proceed to hear and determine as to the sufficiency of the bail; if adjudged insufficient, and other bail, approved by the court, is not given, the bail shall not be thereby discharged, but may be proceeded against by the plaintiff; and if he can not recover the amount for which such bail may have become liable, the sheriff shall be liable on his official bond for the same, or so much as may remain unsatisfied, and for the costs of the action against the bail. 880. (868.) Sheriff-When not liable.-151. The sheriff shall not be liable to the plaintiff on account of the insufficiency of the bail, if it shall appear that he acted with due care in accepting the same. 881. (869.) Who may make affidavit.-152. Affidavits of the plaintiff's right to the debt or damages which he claims may be made by any person residing in this or any other state, territory, or country; and additional affidavits may be made by other persons, stating the further grounds necessary to obtain an order for arrest and bail; and upon filing such affidavits, duly authenticated, an order for the arrest and bail may be entered as in other cases. 882. (870.) Bail, when exonerated.-153. The bail may be exon: erated either by the death of the defendant, or his imprisonment in the state prison, or by his legal discharge from the obligation to render himself amenable to the process, or by his surrender to the sheriff of the county where he was arrested in execution thereof, at any time before final judgment against the bail or his recognizance. 883. (871.) Arrest of principal by bail.-154. The bail may at any time take a certified copy of the order of arrest and recognizance, by virtue of which he may take his principal and deliver him into the custody of the proper officer. Such copy shall be given and certified by the clerk. The bail may at any and all times take and surrender the principal, and be released. Turner v. Wilson, 49 Ind. 581; Clark v. State, ex rel., 125 Ind. 1. 884. (872.) Surrender in open court.-155. If the court to which the order of arrest is returnable be in session at the time of the surrender, the same may be made in open court, and the court shall cause the discharge of the bail from all further liability, to be entered of record. 885. (873.) Surrender in vacation to sheriff or jailer.-156. If the court be not in session, the surrender may be made to the sheriff or keeper of the jail of the proper county, who shall receive the prisoner and hold him in custody in like manner as if he had been committed by virtue of the order of arrest on which he was held to bail. 886. (874.) Copy of order must accompany surrender.-157. But the sheriff shall not be bound to receive any person so surrendered unless the bail shall deliver to him a copy of the order of arrest and recognizance, certified by the officer who issued the original order of arrest. 887. (875.) Indorsement of reception-Effect.-158. The sheriff or keeper of the jail shall acknowledge the reception of the principal, by an indorsement on the certified copy of the order of arrest; and the surrender shall acquit the bail from all further liability as special bail. 888. (876.) New bail.-159. Every defendant surrendered by his bail may be bailed as if arrested by the original order of arrest. 889. (877.) Notice of surrender after judgment.-160. When the surrender of the principal is made after final judgment against him, the bail shall, within ten days after, cause notice of the time and place thereof to be given to the plaintiff or his attorney, if either reside in the state; which notice shall be served by the sheriff, who shall deliver a certified copy of the notice to the keeper of the jail, on or before the expiration of ten days from the time of the surrender; but if neither the plaintiff nor his attorney reside in the state, the notice shall be posted up ten days in the clerk's office of the county, and a copy of the notice, certified by the clerk, shall be forthwith thereafter. delivered to the keeper of the jail. 890. (878.) Disposition of surrendered defendant, after judg ment.-161. When the surrender is made after judgment, the prisoner shall be detained in custody; but if the plaintiff shall not proceed to charge him in execution within five days after the notice, the defendant shall be discharged from custody without any order for that purpose. 891. (879.) Failure to notify-Liability of bail.-162. If any bail shall fail to give the required notice to the plaintiff or his attorney, and the principal shall be discharged, no proceedings being commenced to charge him in execution, the bail shall remain liable on his own recognizance. 892. (880.) Suit on recognizance-Limitation.-163. Whenever the right of action has accrued against any special bail, the creditor may at any time within two years after final judgment against the principal, and not afterward, maintain an action on the recognizance in his own name. SEC. 916. Injury to embankment, etc.-Damages. 917. When railroad, etc., may have writ. 918. Application, where filed-Contents -Writ. 919. Jurors-Number-Qualification. SEC. 920. Inquest-Proceedings. 921. Land-owner may have writ. [1881 S., p. 240. In force September 19, 1881.] 893. (881.) Writ.-746. The writ heretofore known as the writ of ad quod damnum shall hereafter be known as the writ of assessment of damages. Persons may resort to an action at law to recover damages instead of the remedy herein given. Lane v. Miller, 22 Ind. 104; Toney v. Johnson, 26 Ind. 382. The legislature is the sole judge as to what persons may exercise the right of eminent domain. Consumers' Gas Trust Co. v. Harless, 131 Ind. 446. 894. (882.) Raceway for flouring mill, etc.-Damages.-747. Any person or persons desirous of erecting on his or their own land a flouring mill or other machinery to be propelled by water, and who do not own the lands below the proposed site for such mill or machinery, may make a raceway through such lands below, so that the water may flow from such proposed mill or machinery into the river or creek below, upon the person or persons desiring to make such raceway, paying to the person or persons entitled thereto the equitable value of the land taken for the purposes of such raceway, and such other damages as the same may occasion to said owner or owners, and also pay to the person or persons entitled thereto the damages which such raceway may occasion to the owner or owners of other land below the said proposed mill or machinery; which damages shall be assessed as in other cases. The writ can not be obtained when the effect would be to flow water back upon or to divert it away from works already established. Miller v. Stowman, 26 Ind. 143; Larsh v. Test, 48 Ind. 130. The writ may be obtained after the erection of a mill. Wright v. Pugh, 16 Ind. 106. 895. (883.) Writ, by whom and how had.-748. A writ of assessment of damages may be had by application to the circuit or other proper court of the county where the damages to be assessed may be occasioned, under the regulations and in the cases following: First. By any person owning the land on one side of a water-course upon which he desires to erect a mill or other machinery to be propelled by water, to authorize him to take and assess the value of a portion of land on the opposite bank, not exceeding one acre, belonging to another person, whereon to abut a dam to be erected across the water-course. Second. To take and assess the value of such portion of the land, in a like case, upon which a mill-dam has been abutted with the consent of the owner. Third. To assess the probable amount of damages to the lands. |