them, for money received in a fiduciary capacity or for a breach of any official duty. The clerk shall issue executions upon such judgments forthwith, returnable in ninety days, and indorsed "not repleviable," and it shall be so ordered in the judgment.

The entry of bail when stay of execution is not allowed does not render the bail liable. Egbert v. State, 4 Ind. 399.

Judgments on bonds of guardians are not repleviable. Bescher v. State, ex rél., 63 Ind. 302.

712. (700.) Sureties may prevent stay-Exception.-504. When any court shall render judgment against two or more persons, any of whom are sureties for any other or others in the contract on which the judgment is founded, there shall be no stay of execution on the judgment, if the sureties object at the time of rendering the judgment; and it shall be so ordered by the court, unless the bail for the stay of execution will undertake specially to pay the judgment in case the amount thereof can not be levied of the principal defendant.

The objection to stay of execution should be made at the time of entry of judgment, and be entered of record. Laidla v. Loveless, 40 Ind. 211.

713. (701.) When bail may have execution.-505. Any bail for the stay of execution may file with the clerk an affidavit, stating that he verily believes he will be liable for the judgment, interest, and costs thereon unless execution issue immediately; and the clerk shall thereupon issue execution forthwith, unless other sufficient bail be entered before the clerk or sheriff, as in other cases.

714. (702.) Entry of other bail-Its effect.-506. If other sufficient bail be entered, it shall have the force of the original bail entered before the filing of the affidavit and shall discharge the original bail.

[1879 S., p. 127. In force May 31, 1879.]

715. (703.) Exemption-Six hundred dollars.-1. An amount of property not exceeding in value six hundred dollars, owned by any resident householder, shall not be liable to sale on execution or any other final process from a court, for any debt growing out of or founded upon a contract, express or implied, after the taking effect of this act. Exemption of property can only be claimed in actions arising out of contract. State, ex rel., v. Melogue, 9 Ind. 196; Russell v. Cleary, 105 Ind. 502.

Householders, while moving from one place to another, are entitled claim property as exempt. Mark v. State, 15 Ind. 98.

If a person becomes a householder after levy and before a sale he may claim an exemption. Robinson v. Hughes, 117 Ind. 293.

Exemption can not be claimed on judgments for alimony. Menzie v. Anderson, 65 Ind. 239.

Nor on judgments for failure to work on highways. Winfield v. Wise, 73 Ind. 71. Nor on judgments recovered for passing a toll-gate without paying toll. Keller v. McMahan, 77 Ind. 62.

Nor as to damages recovered for the detention of lands. Dorrell v. Hannah, 80 Ind 497; Smith v. Wood, 83 Ind. 522.

Nor where judgments are recovered for fraud. Nowling v. McIntosh, 89 Ind. 593.

Nor on judgments based upon negligence. De Hart v. Haun, 126 Ind. 378.

If the principal of a judgment is collectible without exemption, no exemption can be claimed as to the costs. Church v. Hay, 93 Ind. 323; State v. McIntosh, 100 Ind. 439; Russell v. Cleary, 105 Ind. 502.

Exemptions can not be claimed on judgments for costs. Donaldson v. Banta, 5 App. 71. Partnership property can not be claimed as exempt for the individual debts of a partLove v. Blair, 72 Ind. 281; State v. Emmons, 99 Ind. 452; Goudy v. Werbe, 117

ner.

Ind. 154.

When a husband is liable for the torts of his wife his property is not exempt. McCabe v. Berge, 89 Ind. 225.

Property conveyed to defraud creditors can not be claimed as exempt by the debtor. Mandlove v. Burton, 1 Ind. 39; Holman v. Martin, 12 Ind. 553.

Devisees of lands can not claim the same as exempt from sale to pay liens on the lands. Graves v. Graves, 106 Ind. 118.

Mortgaged property can not be claimed as exempt from sale under the mortgage. Slaughter v. Detiney, 15 Ind. 49; Sullivan v. Winslow, 22 Ind. 153; Love v. Blair, 72 Ind. 281.

Property attached can not be claimed as exempt after a decree ordering its sale. State v. Manley, 15 Ind. 8; Perkins v. Bragg, 29 Ind. 507; Haas v. Shaw, 91 Ind. 384. Replevin bail may claim the right of exemption on any judgment. Maloney v. Newton, 85 Ind. 565.

If a right of action for tort and contract are united and judgment rendered on both jointly, the right of exemption exists. Ries v. McClatchey, 128 Ind. 125.

Property set-off to a widow under the statute can not be claimed as exempt as against the expenses of the last sickness of the husband. Fleming v. Henderson, 123 Ind. 234. Married women may claim the right of exemption. Crane v. Waggoner, 33 Ind. 83. Any person who is the head of family, or who has others depending on him for support, is a householder and may claim an exemption. Graham v. Crockett, 18 Ind. 119; Bunnell v. Hay, 73 Ind. 452; Lowry v. McAlister, 86 Ind. 543; Astley v. Capron, 89 Ind. 167; Bipus v. Deer, 106 Ind. 135; Kelley v. McFadden, 80 Ind. 536.

The pleadings alone are to be considered in determining whether the action is one of tort or contract. Gentry v. Purcell, 84 Ind. 83.

A debtor can not waive by contract his right to claim the benefit of the exemption laws. Maloney v. Newton, 85 Ind. 565; Doherty v. Ramsey, 1 App. 530.

If the personal property of a debtor is not equal to the amount allowed as exempt, he may claim the balance out of proceeds of sale of lands. Chatten v. Snider, 126 Ind. 387.

An officer may be compelled by mandate to set off property. Pudney v. Burkhart, 62 Ind. 179.

If an officer wrongfully refuses to set off property he will be liable in damages. Stevens v. Lawson, 7 Blkf. 275; State v. Read, 94 Ind. 103; Chatten v. Snider, 126 Ind. 387.

When property is properly claimed as exempt the same may be recovered. Douch v. Rahner, 61 Ind. 64; Over v. Shannon, 91 Ind. 99.

Property set off may be sold by the debtor free of the liens of the execution. Vandibur v. Love, 10 Ind. 54; Godman v. Smith, 17 Ind. 152; Hall v. Hough, 24 Ind. 273. When the defendant ceases to be a resident of this state, exemption ceases, and the property exempted may be seized and sold. Finley v. Sly, 44 Ind. 266.

Executions and judgments are not liens on property that is exempted from execution, and it may be sold by the debtor free from such liens. Barnard v. Brown, 112 Ind. 53; Dumbould v. Rowley, 113 Ind. 353; Ray v. Yarnell, 118 Ind. 112.

In an action to recover a debt the plaintiff may defeat a set-off by showing that all his property does not exceed the amount allowed as exempt from execution. Coppage Gregg, 1 App. 112; Pickrell v. Jerauld, 1 App. 10.

ข.

716. (704.) Kind of property exempt.-2. The property may be real or personal, or both, as the debtor may elect and designate at the time he claims the exemption.

The execution debtor may designate the property to be set-off. State, ex rel., v. Reed, 94 Ind. 103.

The debtor need not designate the property to be set off until after the appraisement is made. Kelly v. McFadden, 80 Ind. 536.

The debtor may have a judgment in his favor set off free from any right of set-off against such judgment. Puett v. Beard, 86 Ind. 172; Butner v. Bowser, 104 Ind. 255; Carpenter v. Cool, 115 Ind. 134.

In an action to recover a debt the plaintiff may defeat a set-off by showing that all his property is exempt from execution. Coppage v. Gregg, 1 App. 112; Pickrell v. Jerauld, 1 App. 10.

717. (705.) Selection of appraisers.-3. For the appraisement of any property to be exempted under the provisions of this act, two disinterested householders of the neighborhood shall be chosen, one by the plaintiff, his agent or attorney, and one by the execution debtor; and these two, in case of disagreement, shall select a third; and in case either party fails to select an appraiser, the same shall be selected by the officer holding the execution.

If an appraiser selected by a party is incompetent, the officer should select one in his place. Slaughter v. Detiney, 10 Ind. 103.

Failure to designate an appraiser does not defeat the right of exemption. Kelley v. McFadden, 80 Ind. 536.

718. (706.) Schedule and appraisement.-4. Such appraisers shall proceed forthwith to make a schedule of the real and personal property selected by the debtor, describing the real estate by metes and bounds, and the personal property by separate items, affixing to each the value they may agree upon; and they, or a majority, shall affix to the schedule so made, an affidavit in substance as follows: "We, the undersigned, swear that, in our opinion, the above is a just valuation of the property therein described."

719. (707.) Return of officer-Re-appraisement-Costs.-5. Such schedule shall be delivered to the officer holding the execution or other process, and shall be by him returned with such execution or other process, and made a part of such return: Provided, That all second. or subsequent appraisements, under this act, shall be at the cost of the party or parties asking the re-appraisement, unless the property of the debtor, at the time of the re-appraisement, is appraised at enough over and above the legal exemption to meet said costs.

720. (708.) Debtor to pay appraiser's fee.-6. Each appraiser, for his services, shall be allowed the sum of fifty cents, to be paid by the execution debtor.

721. (709.) Duty of officer, when personalty only is claimed.-7. If the debtor claim as exempt from execution personal property only, the officer holding the execution shall cause the same to be appraised and set apart to the debtor, and shall proceed to sell such other property, if any, as may be liable to the execution, according to law.

When a claim for exemption is properly made the officer must have the property appraised and set off. Douch v. Rahner, 61 Ind. 64; Pudney v. Burkhart, 62 Ind. 179; Barkley v. Mahon, 95 Ind. 101.

722. (710.) Duty, when claim includes personalty and realty.-8. If the claim of the debtor, as exempt from execution, include both real and personal property, the officer holding the execution shall proceed to have the personal property appraised and set apart to the debtor, and then to have the real property claimed appraised, and if the amount of both appraisements exceed six hundred dollars, the debtor may, within sixty days thereafter, pay the excess or an amount sufficient to satisfy the execution; but if he fail to do so, the officer shall proceed to sell the real property as other real property is sold on execution, if the execution authorize the sale of such property. In making the sale, he shall receive no bid unless it exceed the difference between six hundred dollars and the appraisement of the personal property so set apart to the debtor. If the officer sell the real property, he shall pay over to the debtor the amount of said difference, and of the remainder apply upon the execution enough to satisfy it, and pay the balance, if any, to the debtor, or to such other party as may be entitled to it.

If the personalty set off does not equal the amount allowed as exempt, the debtor may claim the deficiency out of the proceeds of the sale of the real estate. Chatten r. Snider, 126 Ind. 266.

723. (711.) Duty, when claim is for realty only.-9. If the debtor claim as exempt from the execution real property only, it shall be appraised; and if its appraised value exceed six hundred dollars, it shall be sold, if there is a bid for more than six hundred dollars. If sold, the officer shall pay to the debtor six hundred dollars, and the remainder of the purchase-money shall be disposed of as provided in the last preceding section.

724. (712.) Real property, how divided.-10. In all cases in which real property is claimed as exempt from sale on execution, and said real property is susceptible of division by metes and bounds without material injury thereto, it shall be so divided as to exempt the principal dwelling-house or homestead of the debtor.

725. (713.) Debtor must make and deliver a schedule.-11. Before a debtor shall receive the benefit of the exemption provided by this act, he shall make out and deliver to the officer holding the execution a schedule of all his property, as now required by law, in case an exemption from sale on execution is claimed.

[1861, p. 119. In force July 5, 1861.]

726. (714.) Verified schedule required.-1. Before any person shall be entitled to the benefit of the provisions of the above recited act, he shall make out and deliver to the sheriff or other officer having the writ, an inventory of all of his or her real estate, within or without this state, money on hand or on deposit within or without this state, rights, credits, and choses in action, and all personal property of every description whatever belonging to him or in which he had any

interest at the date of the issuing of the writ, and make and subscribe an affidavit to the same that such inventory contains a full and true account of all such property as required in this act to be set out in the said inventory, had or held by him at the time such writ was issued; and if any such property has been disposed of by him since the issuing of the writ, such affidavit shall show that fact, and how the same has been disposed of, and what disposition he has made of the proceeds; and until such inventory and affidavit shall be furnished to such officer, he shall not set apart any property to the execution defendant as exempt from execution.

Persons claiming the right of exemption must make the schedule as required by the statute. Graham v. Crockett, 18 Ind. 119; Boesker v. Pickett, 81 Ind. 554.

The schedule may be made and the right of exemption claimed at any time before sale. Eltzroth v. Webster, 15 Ind. 21; State, ex rel., v. Read, 94 Ind. 103; Robinson r. Hughes, 117 Ind. 293.

A schedule and affidavit that substantially complies with the statute is sufficient. Gregory v. Latchem, 53 Ind. 449; Astley v. Capron, 89 Ind. 167.

The officer can not dispute the truth of the schedule and disregard the same. Douch c. Rahner, 61 Ind. 64; Over v. Shannon, 91 Ind. 99.

Schedules and a claim for exemption must be made each time execution issues against him. Finley v. Sly, 44 Ind. 266.

[1879 S., p. 127. In force May 31, 1879.]

727. (715.) Wife may act in husband's absence.-12. In any case when the execution defendant is absent from this state, or shall absent himself from his home, and an attachment or execution shall be directed against his property, his wife may make out and verify the schedule of his property, and claim and receive for him the exemption provided in this act, and claim and exercise all the rights which would belong to her husband were he present.

See Pudney v. Burkhart, 62 Índ. 179; Astley v. Capron, 89 Ind. 167.

728. (716.) When husband's mortgage of realty invalid.-13. No mortgage or sale of any real estate exempted under the provisions of this act shall be valid if executed by a married man, unless the mortgage or deed be signed and acknowledged by the wife in due form of law.

This section applies only to property set off after the claim for exemption has been made. Sullivan v. Winslow, 22 Ind. 153.

729. (717.) No exemptions against mechanics' liens, etc.-14. The exemption under this act shall not affect any laborer's or mechanic's lien, nor lien for the purchase-money of the real property exempted, nor exempt any property from taxation or from sale for

taxes.

730. (718.) To what debts act does not apply.-15. The exemption provided in this act shall not apply to any debt or contract existing at the time it takes effect, but all householders owing debts growing out of and founded upon a contract, express or implied, existing at that time, shall be entitled to claim and receive the exemption pro