approving of the recognizance of special bail, when bail is taken, and in all other cases, on the return-day, and in all cases, the officer shall indorse his doings thereon. (109.)

863. Effect of recognizance. 146. Any such recognizance of special bail shall only amount to an undertaking that the defendant will surrender his body, or the money, property, and effects, or the value thereof, held or owned by him at the time of filing such affidavit; and in default of such surrender, the surety in such recognizance shall only be liable for the amount of the property, moneys, and effects which the plaintiff may show the defendant to have held or owned at the time of filing such affidavit exceeding the amount exempt from execution. (110.)

864. Habeas corpus. 147. When any person shall be committed to prison on an order of arrest for want of special bail, he may sue out a writ of habeas corpus in any Court, or before any Judge of competent jurisdiction; and on the return thereof the plaintiff shall be compelled to show that the facts alleged in the affidavit, on which the defendant is held to bail, are true; and on failure to do so, the defendant shall be discharged. (III.)

865. Length of detention. 148. When any person is committed for want of bail, he shall be held in prison (unless he is bailed or otherwise legally discharged) until final judgment in the action in which he is arrested; and if the judgment be against him he shall be held for such time thereafter as the Court shall direct, not exceeding ten days. (112.) 866. Plaintiff may object to insufficient bail-Notice. 149. If the plaintiff deem the bail insufficient, he may, at the term to which the writ is returnable, or at any term thereafter before final judgment, object to the sufficiency of the bail, by giving three days' notice of the objection to the Sheriff. (113.)

867. Hearing Proceedings-Liability of Sheriff. 150. At the time specified in such notice, the Court shall proceed to hear and determine as to the sufficiency of the bail; if adjudged insufficient, and other bail, approved by the Court, is not given, the bail shall not be thereby discharged, but may be proceeded against by the plaintiff; and if he can not recover the amount for which such bail may have become liable, the Sheriff shall be liable on his official bond for the same or so much as may remain unsatisfied, and for the costs of the action against the bail. (114.)

868. Sheriff, when not liable. 151. The Sheriff shall not be liable to the plaintiff on account of the insufficiency of the bail, if it shall appear that he acted with due care in accepting the same. (115.)

869. Who may make affidavit. 152. Affidavits of the plaintiff's right to the debt or damages which he claims may be made by any person residing in this or any other State, Territory, or country; and additional affidavits may be made by other persons, stating the further grounds necessary to obtain an order for arrest and bail; and upon filing such affidavits, duly authenticated, an order for the arrest and bail may be entered as in other cases. (116.)

870. Bail, when exonerated. 153. The bail may be exonerated either by the death of the defendant, or his imprisonment in the State prison, or by his legal discharge from the obligation to render himself amenable to the process, or by his surrender to the Sheriff of the county

where he was arrested in execution thereof, at any time before final judg ment against the bail or his recognizance. (117.)

871. Arrest of principal by bail. 154. The bail may at any time. take a certified copy of the order of arrest and recognizance, by virtue of which he may take his principal and deliver him into the custody of the proper officer. Such copy shall be given and certified by the Clerk. (118.)

872. Surrender in open Court. 155. If the Court to which the order of arrest is returnable be in session at the time of the surrender, the same may be made in open Court, and the Court shall cause the discharge of the bail from all further liability, to be entered of record. (119.)

873. Surrender in vacation to Sheriff or Jailer. 156. If the Court be not in session, the surrender may be made to the Sheriff or keeper of the jail of the proper county, who shall receive the prisoner and hold him in custody in like manner as if he had been committed by virtue of the order of arrest on which he was held to bail. (120.)

874. Copy of order must accompany surrender. 157. But the Sheriff shall not be bound to receive any person so surrendered unless the bail shall deliver to him a copy of the order of arrest and recognizance, certified by the officer who issued the original order of arrest. (121.)

875. Indorsement of reception - Effect. 158. The Sheriff or keeper of the jail shall acknowledge the reception of the principal, by an indorsement on the certified copy of the order of arrest; and the surrender shall acquit the bail from all further liability as special bail. (122.) 876. New bail. 159. Every defendant surrendered by his bail may be bailed as if arrested by the original order of arrest. (123)

877. Notice of surrender after judgment. 160. When the surrender of the principal is made after final judgment against him, the bail shall, within ten days after, cause notice of the time and place thereof to be given to the plaintiff or his attorney, if either reside in the State; which notice shall be served by the Sheriff, who shall deliver a certified copy of the notice to the keeper of the jail, on or before the expiration of ten days from the time of the surrender; but if neither the plaintiff nor his attorney reside in the State, the notice shall be posted up ten days in the Clerk's office of the county, and a copy of the notice, certified by the Clerk, shall be forthwith thereafter delivered to the keeper of the jail. (124.).

878. Disposition of surrendered defendant, after judgment. 161. When the surrender is made after judgment, the prisoner shall be detained in custody; but if the plaintiff shall not proceed to charge him in execution within five days after the notice, the defendant shall be discharged from custody without any order for that purpose. (125.)

879. Failure to notify-Liability of bail. 162. If any bail shall fail to give the required notice to the plaintiff or his attorney, and the principal shall be discharged, no proceedings being commenced to charge him in execution, the bail shall remain liable on his own recognizance. (126.)

880. Suit on recognizance-Limitation. 163. Whenever the right of action has accrued against any special bail, the creditor may at any time within two years after final judgment against the principal, and not afterward, maintain an action on the recognizance in his own name. (127.)

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

881. Writ. 746. The writ heretofore known as the writ of ad quod damnum shall hereafter be known as the writ of assessment of damages. (683.)

1. As to the description of lands taken, see Indianapolis, etc., R. R. Co. v. Newson, 54 Ind. 121.

882. Raceway for flouring mill, etc. - Damages. 747. Any person or persons desirous of erecting on his or their own land a flouring mill or other machinery to be propelled by water, and who do not own the lands below the proposed site for such mill or machinery, may make a raceway through such lands below, so that the water may flow from such proposed mill or machinery into the river or creek below, upon the person or persons desiring to make such raceway paying to the person or persons entitled thereto the equitable value of the land taken for the purposes of such raceway, and such other damages as the same may occasion to said owner or owners, and also pay to the person or persons entitled thereto the damages which such raceway may occasion to the owner or owners of other land below the said proposed mill or machinery; which damages. shall be assessed as in other cases.

883. Writ, by whom and how had. 748. A writ of assessment of damages may be had by application to the Circuit or other proper Court of the county where the damages to be assessed may be occasioned, under the regulations and in the cases following:

First. By any person owning the land on one side of a water-course upon which he desires to erect a mill or other machinery to be propelled by water, to authorize him to take and assess the value of a portion of land on the opposite bank, not exceeding one acre, belonging to another person, whereon to abut a dam to be erected across the water-course.

Second. To take and assess the value of such portion of the land, in a like case, upon which a mill-dam has been abutted with the consent of the

owner.

Third. To assess the probable amount of damages to the lands, creek, or spring of another, or the improvements thereon, by the overflow of water or otherwise, which may be occasioned by any mill-dam already erected or proposed to be erected.

Fourth. To assess the damages which may be occasioned to any person

by the waters of any river, creek, or spring becoming stagnant by means of any mill-dam already erected or proposed to be erected.

Fifth. To authorize the removal of obstructions in the race and watercourse below any mill, and assess the damages to be occasioned thereby, if

any.

Sixth. To determine the height to which any person, about to build or having built a dam, may raise the same at any time, without causing backwater to flow upon any other mill works situated above, on the same water

course.

Seventh. To authorize any person, being the owner of a dam across any water-course, or having a right to build such dam, for the purpose of propelling a mill or other machinery by water, upon his own land situated below the dam, where there is intermediate land of another person, to make a race, excavation, or embankment through such intermediate land. Eighth. To authorize any person to divert water at his own dam, or upon his own land, from the bed of any water-course in which any other person has an interest, for the purpose of using the water in propelling machinery upon the land of the person diverting it.

Ninth. To authorize any person injured in any manner by a mill-dam already built to have the damages assessed or the dam declared a nuisance, as the case may require. (684.)

884. Contents of application. 749. The plaintiff shall particularly describe the locality of his mill and dam, also, the lands upon which he desires the damages to be assessed, the object contemplated as the case may require, and the full name and residence of any person legally interested, or in whose favor damages may be assessed, and make them defendants. (685.)

1. The petition, writ, and inquest should name all the owners of land above or below the site of the dam who may be or may have been injured by the flow. Honenstine v. Vaughan, 7 Blackf. 520.

2. When a special method is given by law for taking private property for the construction of public works, it is exclusive.—Indiana, etc., R. R. Co. v. Oakes, 20 Ind. 9.

3. The statute authorizes the writ of assessment in every case where a mill has been erected prior to an assessment of damages.-Wright v. Pugh, 16 Ind. 106.

4. The writ is not allowed where its effect would be to authorize a flow of water against a mill already built or building.—Miller v. Stowman, 26 Ind. 143.

885. Jury-Number-Qualifications. 750. The jury shall consist of disinterested freeholders, not less than six nor more than twelve, the' number to be fixed by the Court; but no person owning land adjoining that upon which the damages are to be assessed or upon which the mill may be situated shall serve as juror. (686.)

886. Writ-Notice to parties interested. 751. Upon the application being made, the Court may order the Clerk to issue a writ, reciting the material part of the application, and directing the Sheriff to impanel a jury, to meet upon the land described in the application, on a day to be fixed by the Sheriff, who shall give to the plaintiff and defendant ten days' notice, if they reside within the State; if not, then to their agent or attorney, if any reside in the county; if not, then notice may be given by publication, as in case of non-residents. (687.)

887. Sheriff's charge-View and assessment. 752. When the jury are impaneled and sworn, having met at the place designated, they shall be charged by the Sheriff as to each duty required of them, and they

shall, to the best of their skill and judgment and according to the exigency of the case, when required

First. View and assess at its true value the land proposed for an abutment, and set off the same, not exceeding one acre, by metes and bounds. Second. Examine the lands above and below the dam, the property of the defendants described in the writ, and report whether the lands, mansion-house, gardens, or any improvements or appurtenances thereto belonging, will be overflowed or otherwise injured, and assess the amount of damages, if any.

Third. They shall inquire whether the navigation of the stream will be obstructed, and the health of the neighborhood annoyed or injured; and, if so, by what means the obstructions, annoyance, and injury can be prevented.

Fourth. Whether such proposed mill or machinery will be of public utility.

Fifth. Assess the damages which may be occasioned by constructing a race, excavation, or embankment through the intermediate lands of another. Sixth. Assess the damages which may be occasioned by diverting the water from the bed of a water-course.

Seventh. Assess any other damages that may be sustained by any defendant. (688.)

888. Guardians for infants. 753. When any of the parties to be affected by the application are infants, they shall appear by a guardian appointed by the Court. (689.)

889. May employ Surveyor. 754. The Sheriff shall, when the Court so directs, employ the County Surveyor, or some other competent surveyor, to assist the jury in determining any height, distance, or quantity of land, or any other fact necessary to be determined by the jury. (690.)

890. Challenge of jurors-Witnesses. 755. Either party may challenge jurors, and compel the attendance of witnesses to testify as to any matters to be determined by the jury, in like manner as in the trial of civil actions. (691.)

891. Parties may point out, etc. 756. Either party may attend, and point out to the jury the place where the mill and dam are to be situated, the high-water and low-water marks, and the local extent of the supposed injury to the land. (692.)

892. Jury must inspect locality. 757. The jury shall, in all cases, inspect the localities described in the writ. (693.)

893. Adjournments. 758. If, from any cause, the inquest can not be held on the day fixed, the Sheriff may adjourn to or fix any subsequent day previous to the return-day; and the inquest may be adjourned from day to day or to a future day previous to the return-day, when necessary. (694.) 894. Signing and return of inquest. 759. The inquest shall be signed by the jurors, and forthwith returned by the Sheriff to the office of the Clerk of the Court. (695.)

895. Return of Sheriff-Who bound. 760. The Sheriff shall show in his return the service of the notice required; and no person shall be bound by the proceedings, unless named in the writ and notified. (696.) 896. Pleadings-Issue-Costs. 761. Any defendant may appear and traverse any material fact therein stated in the inquest, or he may plead or show any valid matter in bar of the right of the plaintiff to have the