sation, a sum to be allowed by the Board of Commissioners, not exceeding three dollars per day for the time actually employed; and if he acts as his own clerk, a like compensation of not exceeding four dollars per day. Such clerk, if one be employed, shall be paid not exceeding two dollars per day. The Recorder of any such county shall be entitled to charge half the usual fees for recording, to be paid by the person for whom the same is done. All expenses of books, stationery, and per diem shall be paid by such county. 1260. Record of copy of destroyed will. 19. Whenever an authenticated copy of any will, or letters testamentary or of administration, the record whereof has been destroyed, shall be produced to the Clerk of the proper Court, he shall record the same in the same manner as if it was the original, and shall note upon the record the date at which it was originally recorded; which last record shall have the same force and effect the original record would have had if the same had not been destroyed. 1261. New bonds by administrators, etc. 24. All guardians, administrators, and executors whose official bonds have been or may be destroyed in any general or notorious destruction of the records of any county in this State, shall, within three months thereafter, file new bonds, to the acceptance of the proper officer, or, failing so to do, they shall cease to be such guardians, executors, or administrators, and the proper Court, shall appoint a successor. The liability on such new bond shall commence from the time of filing the same in the proper office; and the sureties in the bonds destroyed shall not be liable for any default or miscarriage of their principal, occurring after such new bond has been filed. 1262. County officers to file new bonds. 25. All county officers from whom, by law, official bonds are required shall, upon the destruction of any such bonds, file with the proper officer new bonds, within twenty days after they shall be notified of such destruction by written notice over the hand of the officer having the custody of the bonds destroyed, or failing so to do or to resign such offices, shall be fined, before any Justice of such county, ten dollars for every day they shall fail so to do; and the liabilities on such new or old bonds, respectively, shall be the same as is provided in the preceding section of this Act on like bonds given by guardians, executors, and administrators. 1263. Auditor to re-place papers and books of Treasurer. 26. If the precept and duplicate, or either of them, or any other public paper or papers in the hands of the Treasurer of any county in this State has been or shall be, in whole or in part, destroyed, it shall be the duty of the County Auditor of such county, or other officer whose duty it may be to furnish such papers, forthwith thereafter, to re-place the same in his hands, by making out anew all such books and papers as have been destroyed, in the same manner and from the same original as the books and papers destroyed were made out; which precept, duplicate, and other books and papers, when so made out and placed in the hands of such Treasurer, shall have the same force and effect as if they were the identical papers which had been destroyed. 1264. Taxpayers must prove payment. 27. All persons charged with taxes on such duplicate, made out as in the last preceding section is required, shall be liable to pay the same, unless such persons shall produce proper receipts for the same, or shall satisfy, by competent proof, such Treasurer or the Board of Commissioners of such county that they have paid the same. 1265. New assessment-rolls. 28. Whenever, in any county, both the assessment-rolls and duplicates shall be destroyed, the Board of Commissioners of such county shall cause new assessments and appraisements to be made out, in the same manner and under the same regulations that the original assessments and appraisements were made; and all such proceedings shall be thereafter had as may be necessary and proper, under existing laws, to enable the Treasurer to collect all taxes due in such county. 1269. Contents of order. 1270. 1271. Order, how executed - Receiver. 1272. Custody of property. SEC. Orders to different counties. Fraudulent concealment, etc.- Fact returned. 1275. Summons to show cause. 1276. Service - Proceedings. 1277. Issue, when tried. 1278. Execution against body. [1881 S., p. 240. In force September 19, 1881.] 1266. When action lies. 164. When any personal goods are wrongfully taken, or unlawfully detained, from the owner or person claiming the possession thereof, or, when taken on execution or attachment, are claimed by any person other than the defendant, the owner or claimant may bring an action for the possession thereof. (128.) 1. If a chattel which is subject to the lien of an execution be left with a mechanic for repairs, the lien of the latter is subject to the lien of the former.- McCrisaken v. Osweiler, 70 Ind. 131. 2. When the plaintiff charges unlawful detention, he must prove it.- Krug v. Herod, 69 Ind. 78. 3. The purchaser of a chattel at public auction can not maintain replevin therefor until he complies with the terms of sale.-Wainscott v. Smith, 68 Ind. 312. 4. Replevin decides only the right of possession. It lies for a note.— - Highnote 7, White, 67 Ind. 596. 5. Title in a third person is a good answer.- Choen v. Porter, 66 Ind. 194. 6. Informality in the bond, or that it is filed by the surety only, does not invalidate it.-Church v. Harbaugh, 64 Ind. 240. 1267. Affidavit for delivery. 165. The plaintiff may, at the time of issuing the summons, or at any time before answer, claim the immediate delivery of such property, as provided in this Act. When a delivery is claimed, an affidavit must be made by the plaintiff, or by some one in his behalf, showing First. That the plaintiff is the owner of the property, or that he is then lawfully entitled to the possession thereof, and particularly describe it. Second. That the same has not been taken for a tax, assessment, or fine, pursuant to a statute; or seized under an execution or attachment against the property of the plaintiff, or, if so seized, that it is, by statute, exempt from such seizure. Third. That the property has been wrongfully taken and is unlawfully detained by the defendant, or is unlawfully detained. Fourth. The estimated value of the property, and in what county the same is believed to be detained. (129.) 1. This section does not apply to Justices' Courts.-Green v. Aker, 11 Ind. 223. 2. A complaint sworn to may stand for both a complaint and affidavit.- Minchrod v. Windoes, 29 Ind. 288. 3. In replevin, when immediate delivery of property is not demanded, no affidavit or bond is necessary. - Hodson v. Warner, 60 Ind. 214. 4. Replevin is a mere possessory action, to recover the possession of chattels taken by tort. An administrator, as such, can not commit such a tort: replevin must lie against him personally.- Rose v. Cash, 58 Ind. 278. 5. The plaintiff must recover upon the strength of his title and right of possession. - Branch v. Wiseman, 51 Ind. 1; Entsminger v. Jackson, 73 id. 144. 6. When the defendant has the goods by lease of the plaintiff, a demand is necessary. -Wutzenholster v. State, 37 Ind. 457. 1268. Order for delivery. 171. When such affidavit is filed with the Clerk, he shall issue an order for the seizure of the property and delivery thereof to the plaintiff. (130.) 1. The order may be issued by the Clerk, either in term or vacation, without any order of the Court therefor.- Pennington v. Streight, 54 Ind. 376. 1269. Contents of order. 172. The order shall be directed and delivered to the Sheriff. It shall state the names of the parties to the action, and the Court in which the action is brought, and direct the Sheriff to take the property, describing it, and stating its value, as in the affidavit; and deliver it to the plaintiff, and direct him to make return of his doings thereon. (131.) 1270. Order, how executed - Receiver. 173. The Sheriff shall forthwith proceed to execute the order, by taking possession of the property described in the affidavit, or so much as can be found; and if the defendant, or some person in his behalf, within twenty-four hours thereafter, shall execute a written undertaking, payable to the plaintiff, with sufficient surety to be approved by the Sheriff, to the effect that the defendant shall safely keep the property, that the same shall not be in any way injured or damaged, and that he will deliver the same to the plaintiff, if judgment should be rendered to that effect, and also that he will pay to the plaintiff all such sums of money as he may recover in the action, then the Sheriff shall deliver the property to the defendant. But if such undertaking is not given within the time aforesaid, then the Sheriff shall deliver the property to the plaintiff, on receiving from him, or some person in his behalf, within twenty-four hours thereafter, a written undertaking, payable to the defendant, with sufficient surety to be approved by the Sheriff, to the effect that the plaintiff will prosecute his action with effect, and that he will return the property to the defendant, if return be adjudged by the Court, and that he will pay to the defendant all such sums of money as may be recovered in the action, for any cause whatever; and in default of the undertaking being given, the property shall be returned to the defendant, but the action shall not be dismissed or delayed thereby. And if the property claimed by the plaintiff shall have a peculiar value, that can not be compensated by damages, either party, in term time or vacation, may, by affidavit, upon notice to the other, move the Judge of the Court in which said cause is pending, to appoint a Receiver, to take possession of the property, and keep the same until the termination of the litigation in the cause, or until the further order of the Court. And the Judge, upon such application, shall make such order in the premises as will protect the rights of the parties. (132.) 1. The recital, in a replevin-bond, of the value of the property is conclusive upon the principal and sureties therein.- Wiseman v. Lynn, 39 Ind. 250. 1271. Breaking open buildings. 174. If the property, or any part thereof, be concealed in a building or inclosure, the Sheriff shall demand its delivery. If it shall not be delivered, he shall cause the building or inclosure to be broken open, and take the property into his possession; and, if necessary, he may call to his aid the power of the county. If the Sheriff can not find the property, or any part thereof, the action shall not abate, but be prosecuted to final judgment. (133) 1272. Custody of property. 175. The Sheriff shall safely keep the property during the time prescribed by the statute, and shall be allowed by the Court the necessary expense for doing so, to be paid by the plaintiff and taxed in the costs, if the property is recovered by the plaintiff. When it appears by the affidavit of the plaintiff, or other person in his behalf, or by the return of the officer, that the property claimed has been disposed of or concealed, so that the order can not be executed, the Court may compel the attendance of the defendant, examine him on oath as to the situation of the property, and punish a willful obstruction or hindrance of the execution of the order and a disobedience of the orders of the Court in this respect, as in cases of a contempt. (134.) 1273. Orders to different counties. 176. When the property is removed to another county after the commencement of the action, an order may, at any time before judgment, be directed to such county for the seizure and delivery of the property claimed; and several orders to different counties may issue at the same time, at the option of the plaintiff, and the costs shall be taxed as the Court shall direct. Such order to another county shall be served, and the property be delivered to the plaintiff, and the order returnable, in the same manner and upon the same terms as above provided. (135.) 1274. Fraudulent concealment, etc. - Fact returned. 166. In all actions for the recovery of the possession of personal property upon affidavit filed as provided in this Act, if the defendant shall fraudulently conceal, remove, transfer, withhold, or refuse to deliver the property mentioned in the affidavit of the plaintiff or his agent, with a view to defraud the plaintiff, the Sheriff, or officer charged with the execution of the order to take such property into his possession, shall indorse the facts of such concealment, removal, transfer, withholding, or refusal by said defendant upon said order, and make return thereof to the Court whence it issues. 1275. Summons to show cause. 167. Upon the filing of such return, on application of the plaintiff, his agent or attorney, the Clerk or Court who issues such order shall issue a summons requiring said defendant to appear before the Court at the time set for the trial of said cause, to show cause why execution against his body should not issue. 1276. Service - Proceedings. 168. Such summons shall be served and returned in the same manner as other summonses; and if the defendant fail to appear, the trial of the issues shall proceed in his absence, according to the rule of practice in other causes. 1277. Issue, when tried. 169. The issue to be tried shall be the truth of the facts alleged in the plaintiff's affidavit and the officer's return indorsed on the order; which issue shall be tried at the time of the trial of the original suit. 1278. Execution against body. 170. If such trial be determined. against such defendant, and he will not forthwith surrender, for the benefit of the plaintiff, the property mentioned in such affidavit found to have been concealed, removed, transferred, or withheld by him, or pay the value thereof into Court, an execution shall issue forthwith against his body, and he be arrested and committed to the prison of the county, there to be confined until duly discharged according to law. [1881 S., p. 240. In force September 19, 1881.] 1279. Publication, how made. 60. Publications of legal and other official matters printed in the English language shall be lawful if published in any newspaper of general circulation published in the county. 1280. Time, how computed. 849. The time within which an act is to be done, as herein provided, shall be computed by excluding the first day and including the last. If the last day be Sunday, it shall be excluded. (787.) 1. For construction of section, see Noble v. Murphy, 27 Ind. 502; Schoonover v. Irwin, 58 id. 287. 1281. Surety, examination of. 851. Every Court and officer authorized to take any bail or surety shall have power to examine, on oath, the person offering to become such bail or surety, concerning his property and sufficiency as such bail or surety. (789.) 1282. Money substitute for bail. 856. Any person required to give bail may deposit with the Clerk the amount of money for which he is required to give bail, and, thereupon, be discharged from arrest. (795.) [1875, p. 112. In force August 24, 1875.] 1283. Defective appeal-bonds-New bonds. 1. In all cases where an appeal shall be taken from a Justice of the Peace, Board of County Commissioners, viewers, or commissioners to assess damages, or from any other person or tribunal, to the Circuit Court, and the appeal-bond filed in such case shall be defective in substance or form, or for want of proper approval, such case shall not be dismissed on account of such defect or informality, if the appellant will, when required by the Court to which such appeal is taken, file in such Court a sufficient bond, with surety to the acceptance of such Court, in such sum as such Court shall require. 1284. Costs accrued - Additional bond. 2. In all such appealed cases, when costs shall have accrued so as to render the sum named in the appeal-bond insufficient to secure the same, the Court in which such appeal is pending shall require the appellant to give an additional bond in such sum as such Court shall deem sufficient, with surety to the acceptance of such Court; and if the appellant fail or refuse so to do, such appeal shall be dismissed. [1881 S., p. 240. In force September 19, 1881.] 1285. Certain words, how construed. 857. In the construction of this Act, the following rules shall be observed, when consistent with the context: |