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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.
1266. 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, forth with 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.
1261. 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.
[1893 S., p. 18. In force February 7, 1893.] 1265a. Court records — Transcribing. 1. That whenever any civil order book, probate order book, judgment docket, entry docket or other record book in which are kept any of the records and proceedings of any circuit, superior or criminal court in this state have been or shall be damaged by fire or otherwise to the extent, that, in the opinion of the judge of such court, it is necessary in order to preserve and perpetuate the contents thereof, to transcribe the same into a new book, such judge shall make an order to be entered in the civil order book of such court ordering and directing the clerk of such court to transcribe the contents of such damaged book into a new book of like size and form, to be provided for that purpose by the county in which such court is held.
1265b. Duty of clerk. 2. The clerk of such court shall thereupon promptly, under the direction of the court, transcribe the contents of such damaged book into a new book of like size and form, in plain, legible handwriting and at the close thereof certify that the same is a full, true, correct and complete transcript of the contents of such damaged book, and after such record shall have been so transcribed and certified by such clerk, the judge of such court shall'examine such transcribed record, and if he finds the same to be a correct transcript of the original, shall so certify at the end of such transcript immediately after the certificate of the clerk thereto.
12650. Damaged books preserved. 3. Such damaged books shall be preserved and kept in the office of the clerk of such court.
1265d. Effect of new records. 4. Such transcribed book when so made and certified, shall bear the name and number of the original damaged book of which it is a transcript, and such authenticated tran
script therein contained, shall be deemed, held to be and treated as the original, and shall have the full force and effect of the original for all purposes, and shall be admitted in evidence in all cases the same as the original.
1265e. Fees of clerk --Payment. 5. Such clerk shall be allowed five cents per hundred words, (four figures counting as one word) for transcribing such records, including index thereto, except that for docketing such cause on an entry, judgment or court docket, including dates, numbers, names of counsel, kind of action and all things complete as said cause appears on the original, said clerk shall be allowed two cents; and for indexing said causes on said new docket, he shall be allowed one cent for each cause so docketed, and no more, to be paid out of the county treasury as other allowances by the court are paid.
(1893 S., p. 298. In force March 4, 1893.] 1265f. Records partly destroyed supplied from original. That wherever any part of any record or records of any county of the State of Indiana have from any cause been destroyed, and where the remaining part or parts of such record or records have been transcribed for the
purpose of preserving the same from mutilation or decay, it shall be the duty of such officer having charge of such record or records to supply such parts of said records so destroyed, from the original instru. ments or documents from which said records or parts of records were made upon the presentation to such officer by the proper holder of such instruments or documents, and for which services he shall receive from the party presenting such instruments or documents the sum of ten cents for each one hundred words or fraction thereof so supplied. It shall be the further duty of such officer to properly index such records so supplied, as original instruments are indexed, provided such instruments shall not be so indexed where the original index thereof is not destroyed, that such parts of records so supplied shall have the same force and effect in law as the original record.
[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 cannot maintain replevin therefor until he complies with the terms of sale.-Wainscott 1. Smith, 68 Ind. 312.
4. Keplevin decides only the right of possession. It lies for a note.-Highnote v. White, 67 Ind. 596.
5. Title in a third person is a good answer.-Choen r. 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.
[1901 S., p. 121. Approved March 6, 1901.] 1266a. Bond of execution plaintiff. 1. That whenever any officer shall by virtue of any writ of attachinent or execution to such officer lawfully issued, attach or levy upon any personal property as the property of the attach. ment or execution defendant, and any other person, firm or corporation, shall bring an action in replevin against such officer for the possession of such property attached or levied upon, or for any part thereof, such officer may, as soon as proc. ess is served upon him in such case, notify the attachment or execution plaintiff if a resident of his county, and if not a resident of his county, then the attorney of such plaintiff, in writing, of such suit, giving a general description of the property claimed by the plaintiff in such suit, and may in such notice, demand of the attachment or execution plaintiff a bond to indemnify him against any loss for attorneys' fees incurred in the defense of such suit, and for the payment of any judgment for damages and costs, if any should be adjudged and rendered against him in such suit, and upon failure of the attachment or execution plaintiff to execute such bond to such officer within five days from the time of the service of said notice, and the making of said demand, with good and sufficient surety, then such officer may upon such failure to execute such bond deliver up any part or all such property sued for in such suit to the plaintiff, and if such officer does so deliver such property to the replevin plaintiff, the attachment or execution plaintiff shall be estopped and forever barred from bringing or maintaining any action whatever against such oflicer for the value of such property so delivered up, or for damages for failing to make any defense in such replevin suit:
Provided, however, That if such action in replevin is pending in the Cir. cuit Court, then such bond shall be approved by the clerk of such court, and if pending before a Justice of the Peace, then such bond shall be approved by such justice.
[1881 S. p. 240. In force September 19, 1881.) 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 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, pursu. ant 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 1. Aker, 11 Ind. 223. 2. A complaint sworn to inay stand for both a complaint and affidavit.--Minchrod v. Windoes, 29 Jud. 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 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; aná 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 forth with 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