upon a written complaint to the court, cause the question of suretyship to be tried and determined upon the issue made by the parties at the trial of the cause, or at any time before or after the trial, or at a subsequent term; but such proceedings shall not affect the proceedings of the plaintiff. On the trial of the question of suretyship a cross-complaint should be filed and issues formed. Dodge v. Dunham, 41 Ind. 186; Voss v. Lewis, 126 Ind. 155; Knopf v. Morel, 111 Ind. 570. An answer may amount to a cross-complaint. Browning v. Merritt, 61 Ind. 425. Unless the defendants appear to the cross-complaint they should be served with process. Joyce v. Whitney, 57 Ind. 550; Baldwin v. Webster, 68 Ind. 133; Voss v. Lewis, 126 Ind. 155. Parties who appear and answer in the original suit need not be served with process on the cross-complaint. Lewis. v. Bortsfield, 75 Ind. 390. The question of suretyship may be tried with the issues in the main action, or the complaint may be filed and the question tried afterwards. Richardson v. Howk, 45 Ind. 451; Gipson v. Ogden, 100 Ind. 20; Montgomery v. Vickery, 110 Ind. 211. When the question of suretyship is tried under the statutory provisions, it can only be tried in the same action, and in the same court, in which judgment against the principal is rendered. Boys v. Simmons, 72 Ind. 593. The question of suretyship can only be tried when the principal is before the court. Watson v. Beabout, 18 Ind. 281; Brush v. Raney, 34 Ind. 416. The question of suretyship only concerns the defendants and can not delay the plaintiff. Pattison v. Vaughan, 40 Ind. 253; Smith v. Bank, 29 Ind. 158; Houston v. Bruner, 39 Ind. 376; Chrisman v. Perrin, 67 Ind. 586. Changes of venue may be had in actions to try the question of suretyship. Williams v. Fleenor, 77 Ind. 36. After judgment in the main action, no question as to the liability of the parties on the cause of action can be tried on the trial of the question of suretyship. Dewitt v. Boring, 123 Ind. 4. In order that a party may have the benefit of this statute he must have been a surety at the inception of the contract. Fensler v. Prather, 43 Ind. 119. This statute does not deprive a surety of any of his rights under the common law. Harker v. Glidewell, 23 Ind. 219; Gipson v. Ogden, 100 Ind. 20. An action to try the question of suretyship should be brought within six years from the time the action accrues. Kreider v. Isenbice, 123 Ind. 10; McClure v. Lucas, 2 App. 32. 1227. (1213.) Order to exhaust principal's property.-739. If the finding upon such issue be in favor of the surety, the court shall make an order directing the sheriff to levy the execution, first, upon and exhaust the property of the principal, before a levy shall be made upon the property of the surety; and the clerk shall indorse a memorandum of the order on the execution. This section only applies as against the principal. One surety can not have its benefit against another surety. Schooley v. Fletcher, 45 Ind. 86. An order can not be made to first exhaust the property of the estate of a deceased principal. Johnson v. Meier, 62 Ind. 98. If an order is made to first exhaust the property of the principal, the officer may be enjoined from levying on the property of the surety until the order is complied with, though the principal is insolvent. Johnson v. Harris, 69 Ind. 305. This section has no application where the property of the principal is in the custody of the law. Knode v. Baldridge, 73 Ind. 54. The officer is only bound to first exhaust the property of the principal when the question of suretyship has been tried, and the proper indorsement made on the execution. Douch v. Bliss, 80 Ind. 316; Bliss v. Douch, 110 Ind. 296. As to the liability of the clerk for failing to make the indorsement on the execution, see State, ex rel., v. Fleming, 124 Ind. 97. 1228. (1214.) Judgment in force for surety, etc.-740. When any defendant surety in a judgment, or special bail or replevin bail, or surety in a delivery bond or replevin bond, or any person being surety in any undertaking whatever has been or shall be compelled to pay any judgment or any part thereof; or shall make any payment which is applied upon such judgment by reason of such suretyship; or when any sheriff or other officer, or any surety upon his official bond, shall be compelled to pay any judgment, or any part thereof, by reason of any default of such officer, except for failing to pay over money collected, or for wasting property levied on,-the judgment shall not be discharged by such payment, but shall remain in force for the use of the bail, surety, officer, or other person making such payment; and after the plaintiff is paid, so much of the judgment as remains unsatisfied may be prosecuted to execution for his use. A judgment defendant can not have an execution in his favor under this section, until it has been judicially declared that he is a surety. Laval v. Rowley, 17 Ind. 36; Kreider v. Isenbice, 123 Ind. 10. When the record shows that one of the persons liable for the payment of the judgment is a surety, payment of the judgment by such surety entitles him to an execution thereon against the principal. Bowser v. Rendell, 31 Ind. 128; Downey v. Washburn, 79 Ind. 242; Jones v. Rhoads, 74 Ind. 510. An officer who, on account of his negligence, or otherwise, is liable for the payment of a judgment, may, after payment, have execution thereon for his use, and he has all the remedies of the plaintiff to enforce payment. Ex parte Voltz, 37 Ind. 237; Burbank . Slinkard, 53 Ind. 493; Gillette v. Hill, 102 Ind. 531. Replevin bail, who pays a judgment against a defendant who is a licensed liquor seller, is subrogated to the rights of the state on the bond of such seller. Kane v. State, ex rel., 78 Ind. 103. The record need not show that payment was made by the surety to entitle him to enforce the judgment against purchasers of the property of the principal. Downey v. Washburn, 79 Ind. 242. Replevin bail can have the execution against all who appear as principals in the judgment. Reissner v. Dessar, 80 Ind. 307; Wilson v. Murray, 90 Ind. 477; Dessar v. King, 110 Ind. 69. A surety after payment of the judgment may have the question of suretyship tried, and obtain execution. Scherer v. Schultz, 83 Ind. 543; Montgomery v. Vickery, 110 Ind. 211. A surety, by allowing judgment to be taken against him as a principal, may lose his right to establish his suretyship as against purchasers of the property of the principal. Thomas v. Stewart, 117 Ind. 50; Smith v. Harbin, 124 Ind. 434. When the property conveyed by a replevin bail is sold to pay the judgment, the purchaser of the property, and not the bail, may have execution against the principal. Wilson v. Murray, 90 Ind. 477. Where several notes are secured by mortgage, and a personal judgment only is taken on the note first due, payment by the replevin bail of the judgment will not give him a preference over the holders of the other notes as to the mortgaged property. Zook v. Clemmer, 44 Ind. 15. The action to try the question of suretyship and obtain execution in favor of the surety must be brought within six years after payment of the judgment. Kreider v. Isenbice, 123 Ind. 10; McClure v. Lucas, 2 App. 32. A replevin bail does not lose his rights under this section by permitting his property to be sold before that of the principal. Armstrong v. Farmer's Bank, 130 Ind. 508. 1229. (1215.) Remedy of co-sureties who pay.-741. Any one of several judgment-defendants, and any one of several replevin-bail, having paid and satisfied the plaintiff, shall have the remedy provided in the last section against the co-defendants or co-sureties, to collect of them the ratable proportion each is equitably bound to pay. A surety who signs at the request of another surety is not released from liability for contribution. Bagott v. Mullen, 32 Ind. 332. It is only when a surety has paid more than his share that he can force a co-surety to contribute. Schooley v. Fletcher, 45 Ind. 86. If a surety signs as the surety of another surety, such parties are not co-sureties. Bobbitt v. Shryer, 70 Ind. 513. 1230. (1216.) When surety shall not suffer judgment.-742. No. surety or his representatives shall confess judgment, or suffer judgment by default, in any case, when he is notified that there is a valid defense, if the principal will enter himself defendant to the action, and tender to the surety or his representative good security to indemnify him, to be approved by the court. 1231. (1217.) When judgment of sureties without relief.—743. Whenever any person seeks a remedy against another for whom he has discharged a debt or claim upon contract, in whole or in part, made payable without any relief from valuation or appraisement laws, for which he was bound as surety or otherwise, the remedy of such person shall also be enforced without any relief from such laws. Before a surety can recover of his principal on account of the suretyship, he must have paid the debt secured, or a part thereof. Stearns v. Irwin, 62 Ind. 558. The remedy of a surety against the principal when the surety has paid the debt is an action for money paid, and not a suit on the obligation signed by the surety. Harker v. Glidewell, 23 Ind. 219; White v. Miller, 47 Ind. 385; Collins v. Paris, 57 Ind. 151; Ross v. Menefee, 125 Ind. 432. The surety must have been legally bound for the debt before he can force the principal to reimburse him. Hollinsbee v. Ritchey, 49 Ind. 261. The right of the surety to compel reimbursement by the principal is barred in six years. Arbogast v. Hays, 98 Ind. 26; Gieseke v. Johnson, 115 Ind. 308. 1232. (1218.) Provisions extend to heirs of sureties.-744. The foregoing provisions of this article shall extend to heirs, executors, and administrators of deceased persons; but the provisions concerning sureties giving notice to the creditors shall not operate against persons under legal disabilities. 1233. (1219.) Rate of interest.-745. In any case when a surety. on any bill, note, bond, or other instrument in writing shall be com pelled to pay the debt or obligation of the principal debtor, such surety shall recover such rate of interest on the amount so paid by him for his principal as was originally provided for in such bill, note, bond, or other instrument in writing, held against such principal debtor; and the judgment therein shall bear the same rate of interest, not exceeding ten per cent. per annum. The surety can only recover the amount he has to pay, with interest. He can not recover attorney's fees included in the note paid, unless he is compelled to pay the same. Gieseke v. Johnson, 115 Ind. 308. 1234. (1220.) Recognizance, when a lien.-605. Every recognizance shall bind the real estate of the principal from the time it is taken, but shall only bind the real estate of the surety from the time judgment of forfeiture is rendered. See sections 618, 1792. 1235. (1221.) Defective bond.-852. No official bond entered into by any officer, nor any bond, recognizance, or written undertaking taken by any officer in the discharge of the duties of his office, shall be void for want of form or substance or recital or condition, nor the principal or surety be discharged; but the principal and surety shall be bound by such bond, recognizance, or written undertaking to the full extent contemplated by the law requiring the same, and the sureties to the amount specified in the bond or recognizance. In all actions on a defective bond, recognizance, or written undertaking, the plaintiff or relator may suggest the defect in his complaint, and recover to the same extent as if such bond, recognizance, or written undertaking were perfect in all respects. See section 1307. This section applies to defective delivery bonds. Koeniger v. Creed, 58 Ind. 554. And to defective appeal bonds. Railsback v. Greve, 58 Ind. 72; Corey v. Lugar, 62 Ind. 60; Opp. v. Ten Eyck, 99 Ind. 345; Stutts v. Zahn, 117 Ind. 297. It also applies to defective injunction bonds. Boden v. Dill, 58 Ind. 273. Black v. State, ex rel., 58 Ind. 589; State v. Sondriette, 105 Ind. 306; State v. Richards, 77 Ind. 101. Bonds taken in actions of replevin, when defective, are cured by this section. Bugle v. Myers, 59 Ind. 73; Yeakle v. Winters, 60 Ind. 554. Also bonds taken in actions of arrest for debt fall under this section. Fitzgerald v. Gray, 59 Ind. 254. This section cures mere defects in the entry of replevin bail for the stay of execution. Hawes v. Pritchard, 71 Ind. 166. But will not make valid an entry of replevin bail where such bail only promises to pay a part of the judgment. Sterne v. McKinney, 79 Ind. 578. Defects in bonds executed by guardians are cured by this section. Fee v. State, ex rel., 74 Ind. 66; Hurlburt v. State, ex rel., 71 Ind. 154. And also defective bonds of administrators are cured by this section. State, er rel., v. Wyant, 67 Ind. 25. This section also applies to defective official bonds. Graham v. State, ex rel., 66 Ind. 386. Defective bonds given by contractors of free gravel roads are cured by this statute, Faurote v. State, ex rel., 110 Ind. 463; Hart v. State, ex rel., 120 Ind. 83. This section also applies to defective bonds given in actions of ejectment when a new trial is taken as a matter of right. Stanley v. Dailey, 112 Ind. 489. Defective attachment bonds are cured by this section. Faulkner v. 329. Brigel, 101 Ind. This section also applies to defective bonds taken in drainage proceedings. Schneck v. Cobb, 107 Ind. 439. This section will not render valid a bond taken without authority of law. State v. Winninger, 81 Ind. 51. SEC. 1236. When appointed. 1237. Who shall not be. 1238. Oath and bond. ARTICLE 47.-RECEIVERS. 1239. Deposit of money in court. 1240. Failure to deposit-Order to sheriff. SEC. 1241. Money not to be loaned-Exception. 1242. Powers of receiver. 1243. Court may enforce payment. 1244. Notice of application-Exception. 1245. Appeal in ten days. [1881 S., p. 240. In force September 19, 1881.] 1236. (1222.) When appointed. 245. A receiver may be appointed by the court, or the judge thereof in vacation, in the following cases: First. In an action by a vendor to vacate a fraudulent purchase of property, or by a creditor to subject any property or fund to his claim. Second. In actions between partners, or persons jointly interested in any property or fund. It is only in exceptional cases that a receiver will be appointed for a partnership until after a dissolution. Barnes v. Jones, 91 Ind. 161. There must be some misconduct or mismanagement after the dissolution of a partnership to justify the appointment of a receiver. Bufkin v. Boyce, 104 Ind. 53. Receivers can not be appointed for partnerships upon the mutual request of the partners. There must be a suit and adversary parties. Pressley v. Harrison, 102 Ind. 14. The receiver of a partnership can only take possession of all firm assets and collect all firm debts. Wallace v. Milligan, 110 Ind. 498. Where partnership property has been conveyed in trust and a controversy arises as to its application, a receiver may be appointed. Naylor v. Sidener, 106 Ind. 179. Third. In all actions, when it is shown that the property, fund, or rents and profits in controversy is in danger of being lost, removed, or materially injured. A receiver may be appointed in a suit by a vendor for purchase-money, in case waste is threatened or done by the vendee. McCaslin v. State, 44 Ind. 151. Pending a suit for partition a receiver may be appointed to care for the property and collect the rents. Edwards v. Dykeman, 95 Ind. 509; Rapp v. Reehling, 122 Ind. 255. In actions of ejectment receivers may be appointed to take charge of land and crops. Bitting v. Ten Eyck, 85 Ind. 357. A receiver may be appointed to take charge of personal property in litigation. Hellebush v. Blake, 119 Ind. 349. The plaintiff must show that he has a present existing right in the property in order to have a receiver appointed. Steele v. Aspy, 128 Ind. 367. Fourth. In actions by a mortgagee for the foreclosure of a mortgage and the sale of the mortgaged property, when it appears that such |