to the execution or attachment to the officer or officers who have seized the same, if the plaintiff shall fail to obtain judgment.

1610. (1542.) Form of judgment-Title of purchaser.-14. If the interest of the claimant in the property claimed shall be found to be a lien, by mortgage or pledge, to secure any debt or liability due or to become due to him, the amount of such lien shall be ascertained by the finding and judgment in such cause, and such property shall be adjudged liable to be sold subject to such lien, and the purchaser of such property, under such sale so adjudged, shall take the same subject thereto and to all the rights of the claimant by virtue of such lien as to his possession and other incidents. And such finding and judgment shall be conclusive as to the amount of such lien against the purchaser of said property and the parties to such complaint.

1611. (1543.) Suit on bond.-15. In any action on any bond given under this act, the measure of damages shall be the value of the property adjudged subject to execution, if it do not exceed the aggregate of all the judgments or claims in attachment it was seized to satisfy, or the amount of such judgments and claims, if the value of the property exceed such aggregate, and all costs on such writs and in such complaint; to which, in either case, shall be added ten per cent. in damages on the amount.

1612. (1544.) Separate or joint suits on bond.-16. When two or more persons to whom any bond given under this act is made payable have separate interests therein, they may maintain separate actions thereon, or may join in one action.

1613. (1545.) Notice to assert claim.-17. When any officer has seized any personal property by virtue of any execution or writ of attachment, and doubts whether some person, other than the execution or attachment defendant, is not the owner of or has some claim to such property, he may give notice, in writing, to all such persons that he has seized such property, describing the same, and stating by virtue of what process he has so seized it, and requiring such persons, if they have any claim or right thereto, to assert the same, by law, within twenty days.

1614. (1546.) Effect of notice.-18. Any person notified as in the last preceding section, who shall not, within twenty days after receipt of such notice, if he be within the state, or forty days if he be without the state, when he receives the same, institute proceedings under this act, to try the right of such property, and prosecute the same to final judgment, with reasonable diligence, shall forever bar any action against such officer or the purchaser of such property on account of the same: Provided, however, That if, previous to the receipt of such notice, such claimant may have instituted any other suit to assert his right to such property, he may prosecute the same to final judgment.

[1859, p. 119. In force August 6, 1859.]

1615. (1547.) Replevin-Complaint, etc.-71. Whenever any plaintiff shall, by complaint in writing, verified by affidavit, set forth that his personal goods, not exceeding in value one hundred dollars, have

been wrongfully taken, or are unlawfully detained by any other person, specifically describing such property and giving the value thereof, and alleging that the same has not been taken by virtue of any execution or other writ against him (or if so taken that the same is exempt from execution by virtue of the laws of this state), and claiming damages for the detention or taking the same, not exceeding one hundred dollars in addition, and shall file with such justice a bond, with surety to be approved by such justice, and payable to the defendant in a sum double the value of such goods, conditioned that he will prosecute such complaint to effect and return such goods to such defendant if judgment of return be awarded to him, and pay all damages awarded such defendant, the justice shall issue to some constable of the county his writ, commanding him to take the property described, and deliver it forthwith to such plaintiff, and that he summon said defendant to appear at a time and place therein named, before such justice, to answer such complaint.

The action must be brought either in the township where the property was taken or is detained. Copple v. Lee, 78 Ind. 230; Jocelyn v. Barrett, 18 Ind. 128; Cook v. Gibson, 21 Ind. 303; Buck v. Young, 1 App. 558.

Justices have jurisdiction in actions of replevin where the value of the property sought to be recovered, or the damages claimed, do not exceed $200. Harrell v. Hammond, 25 Ind. 104; Deam v. Dawson, 62 Ind. 22; Grubaugh v. Jones, 78 Ind. 350; Fawkner v. Baden, 89 Ind. 587.

If the value of the property and the damages claimed exceed $200 the justice will not have jurisdiction. State, ex rel., v. Forry, 64 Ind. 260.

The complaint need not aver the place of detention of the property, nor state facts to show jurisdiction over the defendant. Gould v. O'Neal, 1 App. 144; Buck v. Young, 1 App. 558.

The complaint must aver that the property was not taken under an execution or other writ, or if so taken that it is exempt from execution. McCoy v. Reck, 50 Ind. 283. The affidavit may constitute a complaint, or a separate complaint may be filed. Eddy t. Beal, 34 Ind. 159.

The complaint may be verified by the attorney or agent of the plaintiff. Hall v. Durham, 117 Ind. 429.

If the complaint contains such a description of the property as will enable the officer to find it and execute the writ, it will be sufficient as to description. Smith v. Stanford, 62 Ind. 392; Hoke v. Applegate, 92 Ind. 570.

Bonds executed before justices in actions of replevin are not void because not in double the value of the property sued for. Bugle v. Myers, 59 Ind. 73; Trueblood v. Knox, 73 Ind. 310; Carver v. Carver, 77 Ind. 498.

The cause should not be dismissed because the bond is not in double the value of the property sued for. Fawkner v. Baden, 89 Ind. 587.

If the cause is dismissed on account of defects in the proceedings, suit will lie on the bond. Waddell v. Bradway, 84 Ind. 537.

If the value of the property sued for exceeds $200, the bond executed will be void. Caffrey v. Dudgeon, 38 Ind. 512.

Want of jurisdiction of the justice over the parties will be no defense to a suit on the bond. Harbaugh v. Albertson, 102 Ind. 69.

If the affidavit fixes the value of the property within the jurisdiction of the justice, the bond will not be void because the evidence shows the property to be worth more than $200. Coverdale v. Alexander, 82 Ind. 503.

The issuing of the writ is an approval of the bond. Coverdale v. Alexander, 82 Ind. 503.

Relationship of the justice to the parties within the prohibited degree will not render the bond void. Harbaugh v. Albertson, 102 Ind. 69.

If no bond is filed, and no writ of replevin asked, the action will be treated as one to recover the value of the property. Morford v. White, 53 Ind. 547.

The action can not be maintained for articles that are a part of the realty, such as rails in a fence. Ricketts v. Dorrel, 55 Ind. 470.

It may be proven without plea that the articles sued for are a part of the realty. Balliett v. Humphreys, 78 Ind. 388.

The evidence should show that the defendant was in the actual or constructive possession of the property when the suit was commenced. Teeple v. Dickey, 94 Ind. 124; Hadley v. Hadley, 82 Ind. 75.

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

1616. (1548.) Writ, how served.-72. Such constable shall serve such writ anywhere in the county, by obeying the command thereof; and the defendant may be summoned by copy thereof left at his last usual place of residence.

The constable is not authorized to break open buildings to execute the writ. State, ex rel., v. Beckner, 132 Ind. 371.

1617. (1549.) Proceedings on return of "not found."-74. If the property claimed, or any part thereof, can not be found by the constable, the suit shall proceed as if it had been so found; and if such property, not so found, is adjudged to be the property of the plaintiff, and liable to have been recovered in that action if it had been found, he shall recover the value thereof in damages, whether he shall have claimed that amount as damages in his complaint or not.

If the property is not found and the plaintiff is adjudged to be the owner thereof, he is entitled to recover the value of the property. Singer Co. v. Doxey, 65 Ind. 65.

If only a portion of the property is found, and no return is made as to the remainder, the evidence must be confined to the portion found. Burket v. Pheister, 114 Ind. 503.

1618. (1550.) Trial-Judgment.-73. Such cause shall be tried as other causes before justices. If the cause be dismissed or the defendant prevail, judgment shall be rendered in his favor for his costs, and that he have return of the property; if the plaintiff prevail, he shall have judgment for damages for the taking or detention of the same, and costs.

If the cause is dismissed the defendant is entitled to judgment for a return of the property. Todhunter v. Marshall, 32 Ind. 96.

The rendering of judgment for the defendant for a return of the property places him in constructive possession thereof. Teeple v. Dickey, 94 Ind. 124.

A verdict in favor of the defendant need not fix the value of the property, nor assess damages for its detention. Burket v. Pheister, 114 Ind. 503.

When the verdict is for the defendant, it should be merely for the return of the property, and on a trial in the circuit court on appeal, the same practice prevails. Van Meter v. Barnett, 119 Ind. 35; Everman v. Hyman, 3 App. 459.

1619. (1551.) Capias ad respondendum.-24. Whenever it shall appear from the affidavit of the plaintiff, or some other person, that

such plaintiff has a legal demand, then due, against any person then in or about to come in any county, and that such defendant, as the affiant believes, is about to leave the state or the county, taking with him property subject to execution or other means with which such demand might be paid in whole or in part, with intent to delay or defraud his creditors, any justice shall issue a capias ad respondendum against such defendant; which shall be returnable forthwith, and may be served anywhere in the county where issued.

In suits commenced under this section the jurisdiction of justices extends throughout the county. Harris v. Knapp, 21 Ind. 198; Graham v. Klyla, 29 Ind. 432.

As to what is a sufficient affidavit to justify the issuing of the writ, see Paul v. Ward, 21 Ind. 211.

If a capias is issued without an affidavit it will only operate as a summons and will not justify an arrest. Kreger v. Osborn, 7 Blkf. 74.

The merits of the cause is to be tried, and not whether cause existed for issuing the capias. Harris v. Knapp, 21 Ind. 198; Paul v. Ward, 21 Ind. 211; Graham v. Klyla,

29 Ind. 432.

1620. (1552.) Arrest-Notice to plaintiff.-25. The officer serving such writ shall forthwith arrest the defendant and convey him before such justice, and notify the plaintiff, his agent or attorney, thereof.

1621. (1553.) Trial.-26. The defendant shall be entitled to a trial within twenty-four hours after being brought before the justice; and if the trial shall not commence within that time, he shall be discharged from custody.

The defendant is entitled to a trial within twenty-four hours, and a continuance can not be had without his consent. Root v. Dill, 38 Ind. 169; Dwire v. Saunders, 15 Ind. 306.

The defendant can not be discharged by writ of habeas corpus within twenty-four hours after arrest. Dwire v. Saunders, 15 Ind. 306.

1622. (1554.) Continuance-Special bail.-41. When a cause is commenced by capias, continuance shall not be granted except by consent, except on motion of the defendant, supported by affidavit, showing that he has a defense against the plaintiff's claim, and the reasons why he can not then establish such defense; and such continuance shall not be for longer than sixty days; and such defendant shall give special bail or be committed to jail in default thereof.

A continuance can not be had except with the consent of the defendant under arrest, although there may be other defendants not served. Root v. Dill, 38 Ind. 169.

1623. (1555.) Special bail-Form.-42. Such special bail shall be entered on the docket of the justice, in substantially the following

form:

I acknowledge myself special bail for the appearance of A. B. to this suit on the day of, 18—.

(Signed)

C. D.

Test: E. F., Justice.

1624. (1556.) Discharge-Surrender-Costs.-43. After such de

fendant has been committed to jail, he may at any time be discharged by the justice on such bail being entered, and any special bail may, at any time before final judgment against himself, surrender his principal, when he shall give other bail or be committed as in the first instance; and such bail shall then be discharged on the payment of all costs in the proceedings against him as such bail.

1625. (1557.) Liability of bail.-44. If a defendant at large on special bail, as above provided, shall fail to appear at the time and place set for trial, the cause shall be heard and determined in his absence, and such special bail shall be liable to the plaintiff for the amount of such judgment unless he surrender his principal before judgment against himself.

1626. (1558.) Capias ad satisfaciendum.-Execution against body. -97. Execution shall not be entered against the body, except as hereinafter provided.

Statutes authorizing arrest for debt are to receive a strict construction as to the debtor, and a liberal one as to the creditor. Wendover v. Tucker, 4 Ind. 381; Willis v. Bayles, 105 Ind. 363.

1627. (1559.) Affidavit.-98. The creditor wishing such execution, his agent or attorney, shall file with the justice an affidavit charging the debtor with fraudulently concealing, removing, or transferring his property subject to execution, with intent to defraud or delay such creditor, or that he has moneys, rights, credits or effects, with which the judgment of such creditor, or some part thereof, might be paid, and which he fraudulently withholds or conceals with a view to delay or defraud his creditor.

If the justice has jurisdiction of the subject-matter and the parties, errors in the proceedings can not be questioned by a writ of habeas corpus. Willis v. Bayles, 105 Ind. 363.

1628. (1560.) Contents-Finding to be specific.—99. Such affidavit need not designate specifically any property, moneys, or effects fraudulently removed, transferred, concealed, or withheld by such. debtor; but the justice or jury, in determining the matters in issue between the parties, if the finding be for the creditor, shall designate in such finding the moneys, effects, property, or things in action which have been thus removed, concealed, transferred, or withheld, and also the value thereof.

1629. (1561.) Summons.-100. Upon the filing of such affidavit, such justice shall issue a summons, requiring such debtor to appear and show cause why execution against his body should not issue.

1630. (1562.) Service and return.-101. Such summons shall be made returnable in five days from date, and be served and returned in the same manner as other summonses.

1631. (1563.) Default-Hearing.-102. If such debtor fail to appear on the return day, the justice may enter default, and hear and determine the same in his absence; or a jury may be impaneled for that purpose, at the request of the creditor.