3. Where it is shown that the property was wrongfully taken and unlawfully detained, plaintiff is entitled to recover nominal damages, without proof of actual damage; Robinson v. Shatzley, 75-462.

4. Where, by the terms of a lease, the tenant is to thresh the wheat crop and deliver to the landlord a certain share in the bushel, the tenant has a right to possess the wheat, for the purpose of performing his contract and may maintain replevin therefor; Cunningham v. Baker, 84-600.

5. Replevin will lie to recover cattle seized and held for the payment of damages done, by them, to crops upon inclosed land, if the fence through which they broke was not a lawful fence; Clark v. Stipp, 75–117.

6. When the animals of a known owner temporarily escape from his inclosure and are found trespassing on the uninclosed lands of another, the latter has no right to seize and detain the animals, for the purpose of enforcing the payment of damages and costs, under the estray law. For animals so detained the owner may maintain replevin; Anderson v. Worley, 104-166.

7. A sheriff, after levy on the goods of another than the defendant in execution, taking a delivery bond from the owner-without provision therein that the debtor may sell the goods and apply the value on the execution - leaving them in his possession, acquires such constructive possession as justifies replevin; Hadley v. Hadley, 82-78, following Louthain e. Fitzer, 78-449. So, if such levy be made by direction of plaintiff, he being present, the goods being present and within the control of defendant in execution, and the sheriff shall leave them in the same custody upon a delivery bond, without security, the real owner may maintain replevin against both the sheriff and plaintiff in judgment, though these have not the actual possession at the commencement of suit; Hadley v. Hadley, 82-98.

8. Defendant in execution can not maintain replevin to recover personalty held under the execution; except where the property is, by statute, exempt from execution; Louisville etc. Co. v. Payne, 103-187.

9. Replevin will not lie to recover possession of property taken for a tax assessment; Adams v. Davis, 109-20; L'sville etc. Co. v. Payne, 103-183; Ewing v. Robeson, 15-26. 10. The owner of personal property who executes a chattel mortgage thereon, containing a stipulation that he may retain possession thereof until the maturity of the debt, can, if the mortgagee take possession of such property before that time, recover its possession, by replevin; Niven v. Burke, 82-457.

11. Replevin, by the mortgagee of chattels, against a trustee under an assignment, by mortgagor, for the benefit of creditors. A creditor -as such is not a proper defendant; Antrim v. Gilson, 79-341.

12. Goods being bought by fraud and false pretenses, afterward sold on execution, against the buyer, to a bona fide purchaser. The original vendor of the goods can not maintain replevin therefor, against such purchaser; Claflin v. Cottman, 77-62.

1267. Affidavit for delivery. If the complaint contains all the facts required in the affidavit and is verified a separate affidavit is not required; Minchrod v. Windoes, 29-288; L'sville etc. Co. v. Payne, 103-184. The sufficiency of such complaint, as a cause of action may be tested by demurrer and, as an affidavit, by motion to quash the order or writ issued thereon. An affidavit, in such case, which alleges that the property is "wrongfully", instead of "unlawfully" detained, as required by the statute, and which does not charge that the detention is by the defendant, would seem to be bad; L'sville etc. Co. v. Payne, 103-184.

2. In an action merely to recover the property, in the circuit court, it is not necessary, however, to aver, in the complaint, that the property has not been taken for a tax assessment or fine or seized under an execution or attachment against the property of the plaintiff. Such averment is necessary only when immediate delivery of the property is sought; Payne v. June, 92-253.

3. An assignee need not allege that he is the owner of the goods "as assignee ". He may aver his title generally and prove such facts as show a general or special property and right of possession; Krug v. M'Gilliard, 76-29.

4. Complaint alleging merely that plaintiff is the owner of certain personal property and not that he is entitled to the possession thereof, and containing no allega. tion that the same has either been unlawfully taken or is unlawfully detained by the defendant, must be held bad, on demurrer thereto, for want of sufficient facts (Krug v. Herod, 69-78; Ridenour v. Beekman, 68-236; Baer v. Martin, 2-229); Entsminger v. Jackson, 73-146.

5. Complaint which alleges that defendant unlawfully and wrongfully took, from

the plaintiff, and converted to his own use the following described personal property etc. shows, with sufficient certainty, that the property was taken without leave and had not been returned — at least, after verdict; Roberts v. Porter, 78–131.

6. Complaint which does not allege that the property is detained in the county where the suit is brought is not, for that cause, bad, after verdict; Hoke v. Applegate, 93-573; see Hodson v. Warner, 60-214. It is not necessary that the place where the property is detained be proved by direct evidence. It may be inferred from circumstances; Louthain v. May, 77-109.

7. Complaint must describe the property claimed. A description thereof in one paragraph can not be supplied by a reference to another paragraph e -ex. gr., where in one paragraph the only description was "the property mentioned in the first paragraph of this complaint"; Entsminger v. Jackson, 73-146.

8. If a complaint show a sufficient reason why plaintiff can not give a specific description of the property, a general description will be sufficient, on demurrer. It is so after verdict even if no such excuse be shown; Hoke v. Applegate, 92–574.

9. Mere uncertainty in the description of the property affords no ground for sustaining a motion in arrest of judgment. Such motion only questions the sufficiency of complaint, after verdict; James v. Fowler, 90-565.

10. A description of goods as "one stock of dry goods, notions, fancy articles and so forth, now in a store occupied " by defendant "on Main street, in the city of N, P county, Indiana" is good after verdict. It would seem to be good on demurrer; Malone c. Stickney, 88-595. A high degree of certainty, in describing the property, in actions like this, is not required; Malone v. Stickney, 88-595; see Minchrod v. Windoes, 29-288; Onstatt v. Ream, 30-259; Smith v. Stanford, 62-392.

11. Action to recover possession of a specific share and a certain quantity of wheat, of which plaintiff alleges he is the owner and entitled to the possession and that defendant has possession thereof without right and unlawfully detains the same from plaintiff. Complaint is sufficient, as against demurrer. Joint ownership of the wheat, by plaintiff and defendant, is not shown on its face and is matter of defense, to be shown by answer; Ingel v. Scott, 86–520.

1270. Order, how executed. Where plaintiff, before a justice of the peace, files with the justice an undertaking as provided in this section, instead of the penal bond required in section 1547, such undertaking is in substantial compliance with the requirements of the latter section and is a valid, legal and binding obligation; Fawkner v. Baden, 89-588.

2. Where defendant in replevin procures a dismissal of the suit, in execution of an agreement adjusting all matters of difference and terminating the controversy, he can not maintain an action on the bond, filed in the case by plaintiff; Gerard v. Dill, 96-101.

3. Holders of separate judgments, whose executions have been levied on personal property, which has been taken from the sheriff, by replevin, may unite, as plaintiffs, in a suit for breach of the replevin bond; Thomas v. Irwin, 90–558.

4. Assignee of a judgment levied on personalty which is replevied, the assignment being technically defective, is a real party in interest, to sue on breach of the replevin bond; Thomas v. Irwin, 90–558.

5. An action can not be maintained, on the bond by one who was neither a party to the replevin proceeding nor an obligee in the bond; Pipher v. Johnson, 108-404. 6. Complaint, in action on a replevin bond, need not show who were principals and who sureties; nor need it exhibit the writ and return thereon; Shappendocia v. Spencer, 73-135.

7. In action on the bond the judgment in the replevin suit is conclusive; Landers v. George, 49-309; Carr v. Ellis, 37-465; Denny v. Reynolds, 24-248; Wallace v. Clark, 7 B., 298; Davis v. Crow, 7 B., 129. It is conclusive of the questions of ownership and right of possession; Woods v. Kessler, 93-358.

8. If the judgment in the replevin suit has been appealed from, that fact constitutes no defense; Mull v. M'Knight, 67–525; Burton v. Reeds, 20–87. If the judgment has been set aside, reversed or is, for any other cause, not in force it is for the defendant to bring the facts forward in an answer (Campbell v. Cross, 39-155; Randles v. Randles, 67-434; Padgett v. State, 93-396); Blackburn v. Crowder, 108-241.

9. Plaintiff in replevin and his sureties are estopped to deny the regularity of the proceeding or to say there was no consideration for the undertaking by them executed, to obtain possession of the property; M'Fadden v. Fritz, 110-4; M'Fadden v. Ross, 108-512. So they are estopped to deny the sufficiency of the penalty of the

bond, in defense, after the writ has been issued and possession of the property obtained under it; Trueblood v Knox, 73-311; see Caffrey v. Dudgeon, 38-512. It is no defense that the penalty of the bond was less than double the value of the property replevied; albeit such defect may have been cause for the dismissal of the action of replevin, before trial; Trueblood v. Knox, 73-311.

10. In the replevín suit the judgment was that defendant, who as sheriff had levied on the goods, was the owner and entitled to a return thereof. The goods had been delivered to the plaintiff in that suit. In suit on the bond it was answered that plaintiff had a prior lien upon such goods by virtue of a chattel mortgage, duly executed by the judgment debtor. Answer bad; the judgment concludes the plaintiff therein, as to the ownership of the property and its value; Smith e. Mosby, 98-447; Landers v. George, 49-309; Carr v. Ellis, 37-465; Denny v. Reynolds, 24-248; Smith v. Lisher, 23-500.

11. A plaintiff in replevin who obtains possession of the property, and his sureties, can not, in an action on the bond, impeach the sheriff's return or question the authority of the person who seized the property under the writ and from whose hand he accepted it; M'Fadden v. Ross, 108-514.

12. An answer showing that obligees, after the breach, did an act taking away all right to recover more than nominal damages, is not a showing that there is no right of action on the bond; Cooper v. Metzger, 74–547.

13. After appeal to the supreme court, by defendant in replevin against whom a de retorno habendo is awarded, where there is an implied understanding that no measures to enforce the penalty of the bond for return will be taken until the appeal is disposed of and no such steps are, in fact, taken until a few days before the final decision of the case, when the property is returned in good condition, the delay is not unreasonable and in an action on the bond, the return made may be considered, in mitigation of damages; June v. Payne, 107-311.

14. A ruling on a motion to quash a writ of replevin is not a cause for new trial. To present a question, on appeal, as to such ruling an independent assignment of error is necessary; Nape v. Leiter, 103-139.

1278. Execution against body. Where personal property levied on is replevied from the creditor in execution and the officer, by a third person and, in such replevin suit, final judgment is rendered in favor of such creditor and officer, for the return of the property levied on and it remains in force, and, thereupon, the officer seizes and sells the property to satisfy the creditor's judgment, such third person can not, after ward, maintain an action against the creditor and officer, for the wrongful taking and conversion of such property; Dawson v. Sparks, 77-91.

1280. Time, how computed. This section, as to the computation of time, evi dently has reference to matters properly falling within the code of civil procedure and not to matters in no way connected therewith, although some of the cases seem to give it a broad application; Vogel v. State, 107-378.

2. The twenty days mentioned in section 757, has reference to the posting of notices. The advertisement, in the newspaper, must be for twenty-one days before the sale; Smith . Rowles, 85-264, approving Loughridge v. City Huntington, 56-253; Meredith v. Chancey, 59-466.

3. Where notice is to be given, for service by publication, the notice begins to op erate on the day of service, or of the first publication; Hill v. Pressley, 96-449.

4. Time for recording a chattel mortgage is computed by excluding the day on which it is executed and including the day on which it is recorded; Towell v. Hollivez, 96-450.

5. Where a statute requires an act to be done within so many days from a given day, or from a given act, that day or the day of that act must be excluded; Hill v. Pressley, 76-449.

1283. Defective appeal bonds. This section does not authorize, on appeal from the county board, an appeal bond to be filed in the circuit court, where no bond whatever was filed with the county auditor; Myers v. State, 92-390.

2. A recognizance, given for the purpose of effecting an appeal from a judgment of a justice of the peace, in a criminal case, is an appeal bond, within the meaning of this section. If defective a new bond may be filed, in lieu thereof. If otherwise its defects would be cured by force of section 1221; State v. Richards, 77-101.

3. In all appeals, to the circuit court, a defective bond is cured by filing a new bond, as the court may require; Clift v. Brown, 95-55; Meehan v. Wiles, 93-52; Crumley v. Hickman, 92-388.

1285. Certain words, how construed. "Monomania" (sect. 2544) is the derangement of a single faculty of the mind, or with regard to a particular subject; Schuff v. Ransom, 79-464; see Freed v. Brown, 55-310. Under sections 1746-5, there is no condition, intermediate between sanity and insanity, which though not excusing crime may mitigate it. Independently, however, of the plea of insanity, in a criminal case, defendant may show his general physical and mental condition, at the time of the commission of the offense; Sage v. State, 91-145.

1286. Number

Gender. This rule is applicable to the statute of adoption, to at least the extent of permitting husband and wife, jointly, to avail themselves of its provisions; Krug v. Davis, 87-594.

1287. Pending suits. This section, with section 626, do not restore, in a case pending when the section took effect, the right to save a question, by bill of exceptions, arising under rulings which had, before, been made on the trial and lost because no bill of exceptions was filed within the time required by the prior law; Dickson. Lambert, 98-495.

1291. Repeal. September 19, 1881, the civil code of 1881 took effect and superseded and, in effect, repealed the civil code of 1852, which had been in force since May 6, 1853; Burkett v. Holman, 104–10.

2. This section does not repeal the provisions of section 4 of the statute of 1855, authorizing the appointment of a special judge, in the event of the inability of the regular judge to be present. Section 1381, in substance, re-enacts section 3 of the statute of 1877, as to such appointment; Bowlus v. Brier, 87-395.

3. So much of section 414 as relates to change of venue, as applied to criminal cases, was impliedly repealed by sections 1778-9; State v. Miller, 107-41.

4. The word "practice", in the sense in which it is used in this section, means "the form, manner and order of conducting and carrying on suits or proceedings in the courts, through their various stages, according to the principles of law and rules laid down by the respective courts"; Bowlus v. Brier, 87-395.