If the property is taken by the officer on Saturday, Sunday is not included in the twenty-four hours given to execute a bond. Link v. Clemmens, 7 Blkf. 479.

If the officer receives and acts on the bond it will be a sufficient approval thereof. Hartlep v. Cole, 120 Ind. 247.

When there is a judgment against the plaintiff there is a breach of his bond for which an action lies. Brown v. Parker, 5 Blkf. 291; Wheat v. Catterlin, 23 Ind. 85; Wiseman v. Lynn, 39 Ind. 250.

An officer holding an execution and the execution plaintiffs may sue on a bond given to the officer, when he has judgment for a return of the property to him. Walls v. Johnson, 16 Ind. 374; Thomas v. Irwin, 90 Ind. 557.

If the defendant obtains judgment, he may sue on the bond for the value of the property though such value is not fixed by the verdict. Whitney v. Lehmer, 26 Ind. 503; Yelton v. Slinkard, 85 Ind. 190.

When there is a trial and judgment the judgment is conclusive between the parties in an action on the bond. Smith v. Lisher, 23 Ind. 500; Denny v. Reynolds, 24 Ind. 248; Carr v. Ellis, 37 Ind. 465; Landers v. George, 49 Ind. 309; Smith v. Mosby, 98 Ind. 445; McFadden v. Fritz, 110 Ind. 1.

When the title to the property is not determined in the action, the defendants, in a suit on the bond, may prove in mitigation of damages that the obligees in the bond are not the owners of the property. Stockwell v. Byrne, 22 Ind. 6; Wiseman v. Lynn, 39 Ind. 250; Allis v. Nanson, 41 Ind. 154; Hulman v. Benighof, 125 Ind. 481.

The recital in the bond as to the value of the property is conclusive on the obligors. Wiseman v. Lynn, 39 Ind. 250.

Parties to the bond are estopped to say that there was no action pending, or that the bond is invalid, or that the parties have no interest therein. Sammons v. Newman, 27 Ind. 508; Trueblood v. Knox, 73 Ind. 310; McFadden v. Fritz, 110 Ind. 1; Hartlep v. Cole, 120 Ind. 247; Ringgenberg v. Hartman, 124 Ind. 186.

If on appeal from a justice of the peace the action is dismissed, a suit will lie on the bond. Waddell v. Bradway, 84 Ind. 437.

If the suit is dismissed on a compromise, no action lies on the bond. Hollinsbee v. Ritchey, 49 Ind. 261; Gerard v. Dill, 96 Ind. 101.

The obligors on a bond executed before a justice of the peace can not set up that the justice had no jurisdiction of the parties to the action. Harbaugh v. Albertson, 102 Ind. 69.

There must be a judgment for a return of the property before the sureties are liable on the bond for a failure to return it. Thomas v. Irwin, 90 Ind. 557.

Only parties to the suit can sue on the bond. Phipher v. Johnson, 108 Ind. 401. If the plaintiff dismisses his suit, he may show, in a suit on the bond, that he has a lien upon the property to mitigate the damages. McFadden v. Ross, 108 Ind. 512. Costs made by the plaintiff may be recovered in an action on the bond. Kellar v. Carr, 119 Ind. 127.

The damages recovered can not exceed the penalty of the bond. Kellar v. Carr, 119 Ind. 127.

The return of the property after suit on the bond may be considered in mitigation of damages. June v. Payne, 107 Ind. 307.

Attorney's fees and expenses of the plaintiff in attending court can not be recovered in an action on the bond. Davis v. Crow, 7 Blkf. 129.

1291. (1271.) Breaking open buildings.-174. If the property, or any part thereof, be concealed in a building or inclosure, the sheriff shall demand its delivery. If it shall not be delivered, he shall cause the building or inclosure to be broken open, and take the property into his possession; and, if necessary, he may call to his aid the power

of the county. If the sheriff can not find the property, or any part thereof, the action shall not abate, but be prosecuted to final judgment. This section does not authorize a constable to break open a building to execute a writ of replevin. State, ex rel., v. Beckner, 132 Ind. 371.

1292. (1272.) Custody of property.-175. The sheriff shall safely keep the property during the time prescribed by the statute, and shall be allowed by the court the necessary expense for doing so, to be paid by the plaintiff and taxed in the costs, if the property is recovered by the plaintiff. When it appears by the affidavit of the plaintiff, or other person in his behalf, or by the return of the officer, that the property claimed has been disposed of or concealed, so that the order can not be executed, the court may compel the attendance of the defendant, examine him on oath as to the situation of the property, and punish a willful obstruction or hindrance of the execution of the order and a disobedience of the orders of the court in this respect, as in cases of a contempt.

1293. (1273.) Orders to different counties.-176. When the property is removed to another county after the commencement of the action, an order may, at any time before judgment, be directed to such county for the seizure and delivery of the property claimed; and several orders to different counties may issue at the same time, at the option of the plaintiff, and the costs shall be taxed as the court shall direct. Such order to another county shall be served, and the property be delivered to the plaintiff, and the order returnable, in the same manner and upon the same terms as above provided.

1294. (1274.) Fraudulent concealment, etc.-Fact returned.-166. In all actions for the recovery of the possession of personal property upon affidavit filed as provided in this act, if the defendant shall fraudulently conceal, remove, transfer, withhold, or refuse to deliver the property mentioned in the affidavit of the plaintiff or his agent, with a view to defraud the plaintiff, the sheriff, or officer charged with the execution of the order to take such property into his possession, shall indorse the facts of such concealment, removal, transfer, withholding, or refusal by said defendant upon said order, and make return thereof to the court whence it issues.

1295. (1275.) Summons to show cause.-167. Upon the filing of such return, on application of the plaintiff, his agent or attorney the clerk or court who issues such order shall issue a summons requiring said defendant to appear before the court at the time set for the trial of said cause, to show cause why execution against his body should not issue.

1296. (1276.) Service-Proceedings.-168. Such summons shall be served and returned in the same manner as other summonses; and if the defendant fail to appear, the trial of the issues shall proceed in his absence, according to the rule of practice in other causes.

1297. (1277.) Issue, when tried.-169. The issue to be tried shall be the truth of the facts alleged in the plaintiff's affidavit and the of

ficer's return indorsed on the o.der; which issue shall be tried at the time of the trial of the original suit.

1298. (1278.) Execution against body.-170. If such trial be determined against such defendant, and he will not forthwith surrender, for the benefit of the plaintiff, the property mentioned in such affidavit found to have been concealed, removed, transferred, or withheld by him, or pay the value thereof into court, an execution shall issue forthwith against his body, and he be arrested and committed to the prison of the county, there to be confined until duly discharged according to law.

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

1299. (1279.) Publication, how made.-60. Publications of legal and other official matters printed in the English language shall be lawful if published in any newspaper of general circulation published in the county.

[Acts 1889, p. 431. In force March 11, 1889.]

1300. (E. S. 10.) City advertising-Daily newspapers.-1. That in all cities containing a population of 10,000 or more inhabitants, as shown by the last preceding census, all legal advertising required by law, pertaining to affairs connected with the city government, shall be made in a daily newspaper of general circulation in such city, if one be published in said city.

1301. (E. S. 11.) Legal notices.-2. All notices of application for license to retail spirituous, vinous or malt liquors, and all notices of the sale of real estate for delinquent taxes, or by any sheriff, administrator, executor or commissioner, when the applicant for such license resides in, or the real estate to be sold is situated in, said city of 10,000 or more inhabitants as shown by the last preceding census, shall be made in a daily newspaper of general circulation in such city, if one be published in such city.

1302. (E. S. 12.) Time-Fees.-3. It shall be sufficient to make such publication one time each week on a given day for the number of weeks now required by law, but the fees for such publications in a

daily newspaper shall in no case exceed the fees allowed by law, if such publications had been made in a weekly newspaper.

See section 8086.

On March 7, 1891 (Acts 1891, p. 343), an act was passed legalizing publications made under the act of March 11, 1889.

[Acts 1891, p. 72. In force March 4, 1891.]

1303. When no papers published in city or town.-1. That in all cases where it is now, or may hereafter be provided by law, that publication shall be made in a newspaper or newspapers of general circulation, published within a city or incorporated town, and where no newspaper or newspapers are published in such city or incorporated town, it shall be lawful to make such publication in any newspaper or newspapers published in the county where such city or incorporated town is located.

An act was passed March 1, 1883 (Acts 1883, p. 50), regulating the publication of legal notices, and on March 3, 1883, the act was repealed (Acts 1883, p. 77), and on March 6, 1883 (Acts 1883, p. 134), an act was passed providing that the laws repealed by the act of March 1, 1883, should be revived.

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

1304. (1280.) Time, how computed.-849. The time within which an act is to be done, as herein provided, shall be computed by excluding the first day and including the last. If the last day be Sunday, it shall be excluded.

This section does not apply to ordinary contracts. Cook v. Gray, 6 Ind. 335.

If a party has from a certain day to a certain other day to perform an act, both such days are excluded. Newby v. Rogers, 40 Ind. 9.

If an act is to be performed within a given number of days from the date of a contract, such date is to be counted as one of the days. Brown v. Buzan, 24 Ind. 194. For other cases prescribing rules for the computation of time in contracts, see Bailey v. Rickets, 4 Ind. 488; Parker v. McAllister, 14 Ind. 12; Kirkpatrick v. Alexander, 60 Ind. 95; Adams v. Dale, 29 Ind. 273.

In computing time for the service of process, or the filing of bills of exception, the first day is excluded and the last is included. Womack v. McAhren, 9 Ind. 6; State t. Thorn, 28 Ind. 306.

Sunday is computed as a day unless it is the last day. Womack v. McAhren, 9 Ind. 6; English v. Dickey, 128 Ind. 174; Backer v. Pyne, 130 Ind. 288; Hogue v. McClintock, 76 Ind. 205.

February 29th is counted as a day in computing the time of service of process. Helphenstine v. Bank, 65 Ind. 582.

If a party has until a day named to do an act such day is excluded. Erb v. Moak, 78 Ind. 569; Eshelman v. Snyder, 82 Ind. 498.

If a party has twenty-four hours from a Saturday to do an act, Sunday is to be excluded. Link v. Clemmens, 7 Blkf. 479; Backer v. Pyne, 130 Ind. 288.

In computing the time for taking an appeal, the day of rendition of judgment is excluded. Faure v. United States Co., 23 Ind. 48; Noble v. Murphy, 27 Ind. 502; Wright v. Manns, 111 Ind. 422.

The day on which replevin bail is entered, is counted in computing the time execution is stayed. Tucker v. White, 19 Ind. 253.

In determining the time when an instrument should be recorded, the date of execution is excluded, and the day of recording included. Towell v. Hollweg, 81 Ind. 154.

In computing the time of publication of notices, either the day of the first publication, or the last day, is excluded. Smith v. Rowles, 85 Ind. 264; Hill v. Pressley, 96 Ind. 447; Meredith v. Chancey, 59 Ind. 466.

If a term of office begins a certain number of days after an election, the day of the election is excluded. Vogel v. State, ex rel., 107 Ind. 374.

A day commences at twelve o'clock at night and continues until the same hour next night. Benson v. Adams, 69 Ind. 353.

Fractions of days are not usually counted but may be to guard against injustice. Pressley v. Board, 80 Ind. 45; Gibson v. Keyes, 112 Ind. 568.

1305. (1281.) Surety, examination of.-851. Every court and officer authorized to take any bail or surety shall have power to examine, on oath, the person offering to become such bail or surety, concerning his property and sufficiency as such bail or surety.

1306. (1282.) Money substitute for bail.-856. Any person required to give bail may deposit with the clerk the amount of money for which he is required to give bail, and, thereupon, be discharged from arrest.

[1875, p. 112. In force August 24, 1875.]

1307. (1283.) Defective appeal-bonds-New bonds.-1. In all cases where an appeal shall be taken from a justice of the peace, board of county commissioners, viewers, or commissioners to assess damages, or from any other person or tribunal, to the circuit court, and the appeal-bond filed in such case shall be defective in substance or form, or for want of proper approval, such cases shall not be dismissed. on account of such defect or informality, if the appellant will, when required by the court to which such appeal is taken, file in such court a sufficient bond, with surety to the acceptance of such court, in such sum as such court shall require.

See section 1235 and notes.

This section does not apply where no bond at all was filed on taking an appeal. Crumley v. Hickman, 92 Ind. 388.

This section applies to appeals from justices of the peace in criminal actions. State v. Richards, 77 Ind. 101.

In all appeals to the circuit court defective bonds may be cured by filing new ones. Clift v. Brown, 95 Ind. 53; Meehan v. Wiles, 93 Ind. 52.

1308. (1284.) Costs accrued-Additional bond.-2. In all such appealed cases, when costs shall have accrued so as to render the sum named in the appeal bond insufficient to secure the same, the court in which such appeal is pending shall require the appellant to give an additional bond in such sum as such court shall deem sufficient, with surety to the acceptance of such court; and if the appellant fail or refuse so to do, such appeal shall be dismissed.

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

1309. (1285.) Certain words, how construed.-857. In the construction of this act, the following rules shall be observed, when consistent with the context: