1583. (1515.) Bond forfeited.-89. If the condition of such bond be broken, the execution plaintiff may prosecute his remedy thereon, or may, by alias execution, cause the same or other property to be levied on, or, having failed in either remedy, may afterward resort to the other.

1584. (1516.) No appeal from judgment on bond.-90. No appeal shall be allowed the defendant from a judgment before a justice on a delivery bond, unless he show, by affidavit, that he has merits in such appeal.

No appeal can be taken unless an affidavit is filed setting forth facts showing merits in the appeal. Harding v. Mansur, 13 Ind. 454; Hughes v. Jackson, 48 Ind. 296.

The affidavit need not show that the party appealing attempted to use the facts showing merits in the appeal as a defense before the justice. Smith v. Scott, 86 Ind. 346.

1585. (1517.) Bond forfeited-Defendant not entitled to property. -91. When the condition of a delivery bond has been broken, and the same, or other property, afterward levied on by the same execution, or another execution on the same judgment, the defendant shall not be entitled to the custody of such property.

1586. (1518.) Judgment on bond.-92. In suits on a delivery bond, the amount due on the execution, if the property was worth so much (if not, the value of the property), and, in both cases, ten per cent. in addition, shall be the measure of damages.

The ten per cent. damages should not be given on the costs. Patterson v. Brown, 1 Ind. 567.

1587. (1519.) Sale of property.-93. If an execution debtor, having executed a delivery bond for any goods, shall sell the same or part thereof for not less than two-thirds the appraised value, and shall apply all the proceeds of such sale to payment of the judgment, if so much be necessary, the failure to deliver such property so sold shall not be a breach of the condition of such bond.

1588. (1520.) Stay-Effect.-84. In all cases where a stay of execution is not prohibited by law, the judgment defendant shall have stay of execution, by entering replevin bail on the docket of the justice, in substantially the following form:

I, A. B., hereby acknowledge myself replevin bail, for the stay of execution on the above judgment, for days from the rendition thereof. Witness my hand, this day of

Test: E. P., Justice.

18-.

A.. B.

And the justice shall be responsible for the solvency of such bail at the time when taken, unless the plaintiff consent thereto; and such undertaking shall have the effect of a judgment confessed; and execution shall issue thereon, at the expiration of such stay, jointly against the defendant and such bail; and it shall be the duty of the justice to issue execution thereon at the expiration of the stay, unless otherwise ordered by the plaintiff.

The entry of bail must be on the docket of the justice. Constables can not take bail. McCormick v. Cassell, 16 Ind. 408; Lockwood v. Dills, 74 Ind. 56.

The entry of bail should be attested by the justice, but if he fails to do so the defect is cured by statute. Miller v. McAlister, 59 Ind. 491; Eltzroth v. Voris, 74 Ind. 459; Hougland v. State, ex rel., 43 Ind. 537; Fentriss v. State, ex rel., 44 Ind. 271; Stone r. State, ex rel., 75 Ind. 235.

The entry of bail can not be taken on a separate paper; it must be on the docket. Lockwood v. Dills, 74 Ind. 56.

The entry of bail may be signed at any time before the bail expires. Leech v. Perry, 77 Ind. 422.

Bail entered after the time for stay has expired has no effect. Eltzroth v. Voris, 74 Ind. 459.

If the time for stay of execution is erroneously stated in the entry of bail, the defect is cured by statute. Hawes v. Pritchard, 71 Ind. 166.

By becoming bail, the surety waives any right to question any errors in or the existence of the judgment. Hopper v. Lucas, 86 Ind. 43.

The person becoming bail is a surety of the principal. Elson v. O'Dowd, 40 Ind. 300.

1589. (1521.) When not allowed.-85. No stay of execution or appraisement of property shall be allowed in the following cases:

First. On judgments against officers, executors, administrators, guardians, or commissioners appointed to sell land, for the violation of any duty connected with their office or trust.

Second. On any official bond, or bond given to secure the faithful discharge of the duties of any trust, as to the principal in such bond. Third. On any judgment for money received in trust and not paid over on proper demand.

Fourth. Against any corporation, other than municipal.
Fifth. On any judgment on a forfeited delivery bond.

Judgments against executors or administrators are not repleviable. Taylor v. Russell, 75 Ind. 386.

1590. (1522.) Limit of time.-87. If such judgment, exclusive of costs, do not exceed six dollars, such stay shall be for thirty days; if over six and under twelve dollars, sixty days; if over twelve and under twenty dollars, ninety days; if over twenty and under forty dollars, one hundred and twenty days; if over forty and under seventy-five dollars, one hundred and fifty days; if over seventy-five dollars, one one hundred and eighty days.

If the time of stay is erroneously stated in the entry of bail, the defect is cured by statute. Hawes v. Pritchard, 71 Ind. 166.

[1879 S., p. 150. In force May 31, 1879.]

1591. (1523.) Additional bail.-1. Whenever any person who has obtained judgment before any justice of the peace shall become satisfied of the insufficiency of any replevin bail upon said judgment, he may, upon filing his affidavit with such justice of the peace, that he has reason to believe that such replevin bail is insufficient to secure the payment of said judgment, cause said justice of the peace to issue a summons returnable in not less than three nor more than ten days from the date thereof, requiring the judgment debtor to appear and show cause why he should not be required to furnish other or additional replevin bail; and if, upon the failure of the judgment debtor

to appear, or upon his appearance, the judgment plaintiff show to the satisfaction of the court that the replevin bail already given is insufficient, and the defendant fail to furnish other or additional replevin bail, it shall be the duty of such justice of the peace to forthwith issue execution against the property of the judgment debtor, the same as if no stay had been taken upon said judgment.

[2 R. S. 1852, p. 449. In force May 6, 1853.]

1592. (1524.) How bail may compel execution.-94. Any replevin bail desirous of being discharged from his liability may make affidavit that he is apprehensive of being made liable thereon, if execution be further delayed; and, on the filing of such affidavit, the justice shall cause the defendant to be notified in writing, that unless he give other replevin bail, execution will issue thereon; and if such defendant shall not, within three days after service of such notice, give other bail, execution shall issue in the same manner as if the stay had expired.

If an execution is issued without an affidavit of the bail, before the time of stay expires, the execution will be void. Ezra v. Manlove, 7 Blkf. 389; Palmer v. Galbreath, 74 Ind. 84.

1593. (1525.) New bail.-95. Such new bail shall be entered on the docket in form substantially as follows:

I, A. B., acknowledge myself replevin bail, for the stay of execution on the above judgment, until the 18-, instead of C. D., discharged.

day of
day of

And shall operate as a discharge of the former bail. 1594. (1526.) When judgment for use of bail.-96. When a replevin bail has paid the judgment, or any part thereof, the same shall stand unsatisfied for his use, and he may have execution thereon.

1595. (1527.) Sale-Effect of death before.-121. When an execution defendant shall die after levy and before sale, the property levied on shall be sold in the same manner as if he was alive; but if no levy has been made in such case, such execution shall be returned without further proceeedings and its lien on the goods of the defendant divested; and if the plaintiff die after execution has issued, the same shall be executed and returned as if such plaintiff were living. If after issue of execution, and before its levy and satisfaction, the plaintiff die, the writ may still be executed. Murray v. Buchanan, 7 Blkf. 549.

See Doe v. Heath, 7 Blkf. 154; State, ex rel., v. Michaels, 8 Blkf. 436; Murray v. Buchanan, 7 Blkf. 549; Whitehead v. Cummins, 2 Ind. 58; Doe v. Hayes, 4 Ind. 117; Egbert v. Mercer, 66 Ind. 305.

1596. (1528.) On execution.-83. All sales on execution shall be at public auction in the township where the goods were seized, between the hours of ten in the forenoon and five in the afternoon; and ten days' notice of the time and place of such sale shall be given by the constable, by posting up written notices in three public places in

such township; and such constable shall not, directly or indirectly, become a purchaser at such sale.

It will be presumed that the proper notice of sale was given. Culbertson v. Milhollin, 22 Ind. 362.

The property must be in view of persons attending the sale. Gaskill v. Aldrich, 41 Ind. 338.

1597. (1529.) Claim to property-Verified complaint.-1. Whenever any personal property shall have been seized by virtue of any writ of execution or attachment, and any person other than the defendant in such writ shall file with the justice who issued such writ (or, if the same be levied upon by more than one writ, with the justice who issued the oldest writ so levied), his complaint in writing, verified by affidavit, setting forth the fact of such levy or seizure, and stating his claim to said property and the nature of such claim, whether absolute or conditional, such justice shall docket such complaint for trial; and the same shall be tried and determined, and continuances granted, and changes of venue awarded, and all other proceedings had thereon as in other civil complaints before justices.

If it is averred that the plaintiff is the owner of the property, it is sufficient as an allegation of ownership. Maus v. Borme, 123 Ind. 522.

The complaint must show whether the claim of the plaintiff is absolute or conditional and the complaint must be verified. Raymond v. Parisho, 70 Ind. 256.

Jurisdiction of justices under this section is unlimited as to amount. Griffin v. Malony, 13 Ind. 402.

Proceedings can only be had under this section when the justice issues the writ, and the complaint must be filed before the justice issuing the writ. Matlock v. Strange, 8 Ind. 57.

Disqualification of the justice issuing the writ to act will not authorize any other justice to act. Test v. Beeson, 37 Ind. 380.

To entitle the claimant to recover he must show that he is entitled to immediate possession of the property. Philbrick v. Goodwin, 7 Blkf. 18.

This section does not prohibit the claimant from replevying the property. Firestone v. Mishler, 18 Ind. 439.

This section applies only to proceedings before justices of the peace. Davis v. Warfield, 38 Ind. 461.

1598. (1530.) Summons-Rule as to non-residents.-2. A summons shall be issued and served as in other cases; and the officer or officers, if there be more than one, holding such writs of execution or attachment, together with the plaintiffs in such writs, shall be named as defendants in such summons; but if such summons be returned, that such plaintiffs in such writs of execution or attachment, or any of them, are not residents of the county, and the officer or officers named in such summons be served, such cause may be heard without service on such non-resident parties.

1599. (1531) Continuance.-3. Unless such summons be served at least three days before the day set for trial, the defendant may claim a continuance at the cost of the plaintiff.

1600. (1532.) Suspension of proceedings on writ.-4. From the time any such officer shall be notified, by service of such summons,

of the pendency of such claim, he shall suspend all proceedings on the writs in his hands, so far as such property claimed is concerned, until such claim is determined.

1601. (1533.) Cause of action-Pleas-Evidence.-5. No cause of action, other than the verified claim required by the first section of this act [§ 1529], need be filed by the plaintiff, and no plea shall be required of the defendant, but all matters pertinent to the issue may be given in evidence by either party.

1602. (1534.) Jury.-6. If either party demand a jury, the same shall be summoned, impaneled, and sworn as in other cases; if none be demanded, the justice shall try the cause.

1603. (1535.) Amendments.-7. Amendments verified by affidavit may be made by the plaintiff in his complaint, either before the justice, or in the circuit court on appeal, on the same terms as to costs and continuances as plaintiffs, in other complaints commenced before justices, are permitted to amend.

1604. (1536.) Verdict.-8. Such jury, in their verdict, shall assess the value of the property; but failure so to do shall not vitiate their verdict. But if testimony as to such value has been given, and they omit such assessment, they shall receive no fees.

1605. (1537.) Appeal and bond.-9. An appeal shall lie to the circuit court, if taken within ten days from the day of trial, and not after, under the same rules and regulations as to the taking thereof, and the trial in the circuit court, as in other cases-the penalty of the bond being in double the value of the disputed property and accrued costs.

Irregularity in the proceedings in which the writ was issued is no ing the suit in which it was issued on an appeal under this section. Blkf. 370.

cause for dismissTyner v. Gapin, 3

1606. (1538.) Disposition of property.-10. Until the time for such appeal has expired, the cause, so far as the disposition of such property is concerned, shall be considered as determined.

1607. (1539.) Damages on appeal.-11. If the circuit court determine against the claimant, they shall assess five per cent. in damages in the value of such property, and render judgment therefor in favor of the execution or attachment plaintiffs.

1608. (1540.) Effect of judgment.-12. Any judgment determining the right of property in any proceeding under this act shall be conclusive as to such right against all persons served with process or appearing in such cause.

1609. (1541.) Possession.-13. The claimant of property in any proceeding under this act shall, at any time pending such proceeding, be entitled to possession thereof, by executing bond and surety to the satisfaction of the justice or clerk of the court where the same is pending, in double the value of the property; which value shall be proved by the affidavit of a disinterested person. Such bond shall be payable to the defendants in such complaint, and conditioned for the return of so much of the property seized as may be adjudged subject