principal in order to release the surety if suit is not brought, must require the creditor to sue forthwith. Frye v. Eisenbiess, 56 App. 123, 104 N. E. 995.

1269. Trial of suretyship.

If a person is made a defendant to answer as to his interest in the demand sued on, and the plaintiff could not recover any judgment against him, another defendant can not raise the question of suretyship as between himself and the person made defendant to answer as to his interest. Clements v. Vanausdall, 180 Ind. 490, 103 N. E. 343.

This section is remedial in character, and must be given a liberal construction. Hedges v. Mehring, 65 App. 586, 115 N. E. 433.

See note to section 823.

Under this section, in an action on a note the jury should be permitted to determine the issue of suretyship upon evidence introduced. Beck v. O'Dell, 127 N. E. 852.

App.

If a surety is compelled to pay the debt of the principal who is a nonresident of the state, the surety may sue the principal, if he comes into this state, to recover the amount paid, and he can recover interest on the amount paid at the rate that the obligation bore that he signed as surety. Runkle v. Pullin, 49 App. 619, 97 N. E. 956.

If the bond of a contractor for a public work fails to provide that persons who furnish materials that are not paid therefor shall have recourse on the bond, such defects are cured by statute, and persons furnishing materials may sue on the bond. State ex rel. v. Rowles, 177 Ind. 682, 98 N. E. 722.

If a bond shows a defect on its face, the defect need not be suggested in a suit on the bond. United States etc. Co. v. Poetker, 180 Ind. 255, 102 N. E. 372.

Bonds executed by contractors for the construction of improved highways are official bonds within the meaning of this section. Holthouse v. State ex rel., 49 App. 178, 97 N. E. 130.

The provisions of a statute that require a bond to be executed enter into and become a part of the bond. United States etc. Co. v. Poetker, 180 Ind. 255, 102 N. E. 372; Crawford v. Spindler, 55 App. 1, 103 N. E. 388.

Contracts and bonds executed for the performance of public work, are to be construed together and in connection with the law authorizing such work. Fry v. Bannon Sewer Pipe Co., 179 Ind. 309, 101 N. E. 10.

Liquor license, transfer of in accordance with the provisions of the law, liability of the transferee and the surety on the bond given by the original licensee for violations of the conditions of such bond. White v. State ex rel., 183 Ind. 649, 109 N. E. 905.

See note to section 667.

In view of this section and section 9111, a deputy treasurer's bond can not be restricted to losses discovered within six months after term. Southern Surety Co. v. Kinney, App., 127 N. E. 575.

In an action on a deputy treasurer's bond under this section and in view of section 9113, the bond is valid though not conforming to section 9111. Southern Surety Co. v. Kinney, - App. - 127 N. E. 575.

Under this section administratrix appealing from justice of the peace must give bond and when given by her is valid. Standard Brewery v. Massachusetts Bonding & Ins. Co., 127 N. E. 624.

App.

ARTICLE 47.-RECEIVERS.

SEC.

SEC.

1279. When receivers may be appointed. 1285. Powers of receiver.

1288. Notice of application, exception. 1289. Appeal in ten days from order.

1279. When receivers may be appointed.

Receivers may be appointed in actions to foreclose mortgages to secure the application of the rents on the mortgage debt before a sale when the property is not sufficient to satisfy the debt secured by the mortgage. Leader Pub. Co. v. Grant Trust etc. Co., 182 Ind. 651, 108 N. E. 121.

A partner in a private bank which is alleged to be insolvent, and that the persons in control of the bank are improperly conducting its business, may sue for an accounting and have a receiver appointed to take control of the assets of the bank. Wehmeier v. Mercantile Banking Co., 49 App. 454, 97 N. E. 558.

Cl. 5. A complaint on appeal was considered sufficient to sustain an order appointing a receiver by the court below when no objection was made to the complaint in such court. Portage Brick Co. v. North Indiana Brick Co., Ind. 128 N. E. 847.

On the foreclosure of a mortgage on personal property that is in the hands of a receiver, the court may direct that the receiver sell the property. Leader Pub. Co. v. Grant Trust etc. Co., 182 Ind. 651, 108 N. E. 121.

1288. Notice of application, exception.

Receivers should not be appointed without notice to the adverse party in the absence of a showing that the property is in danger of being wasted or is about to be removed beyond the jurisdiction of the court. Ryder v. Shea, 183 Ind. 15, 108 N. E. 104.

A mere verified statement of opinion as to the necessity for the appointment of a receiver without notice is not sufficient, but the pertinent facts showing such necessity must be stated. General Motors Oil Co. v. Matheny, 185 Ind. 114, 113 N. E. 4.

The proceeding for the appointment of a receiver is not necessarily rendered illegal because the appointment was made without notice. Brock v. Rudug, App., 119 N. E. 491.

Facts held not to have warranted the appointment of a receiver without notice since petitioner might have obtained sufficient protection for his rights under the provisions of this section and sections 1205, 1207. Kent Avenue Groc. Co. v. Hitz & Co., 187 Ind. 606, 120 N. E. 659.

Unless sufficient reason therefor is shown in the verified complaint or by affidavit, the appointment of the receiver without notice is forbidden by this section. Kent Avenue Groc. Co. v. Hitz & Co., 187 Ind. 606, 120 N. E. 659.

1289. Appeal in ten days from order.

If an appeal is taken from an order appointing a receiver without notice, no question involving the merits of the controversy can be considered on a motion to dismiss the appeal. Ryder v. Shea, 180 Ind. 574, 103 N. E. 411.

If a receiver is appointed without notice to the adverse party, such party may appeal from the order making the appointment without moving to set aside such order and reserving an exception to the decision of the court. Ryder v. Shea, 183 Ind. 15, 108 N. E. 104.

Under this section, the filing of an approved appeal bond in an amount less than the receiver's bond does not require a dismissal of the appeal, although it does not suspend the authority of the receiver. General Motors Oil Co. v. Matheny, 185 Ind. 114, 113 N. E. 4.

An appeal from an order appointing receiver not taken within ten days but within the one hundred eighty days allowed for appeals from final judgment, must be dismissed. Standard Electric Mfg. Co. v. Tuttle, App. - 126 N. E. 438.

SEC.

ARTICLE 48.-REINSTATEMENT OF RECORDS.

1291. Complaint to restore.

1291. Complaint to restore.

An independent appeal by the husband from a judgment re-establishing the lost complaint in an action for divorce, while the appeal from the judgment of divorce is pending, will not lie, but the record disclosing error in the proceeding to reestablish such complaint must be brought up and made a part of the original appeal. Chenowith v. Chenowith, 64 App. 263, 115 N. E. 758.

Where the re-establishment of a lost complaint is the ultimate result sought by a proceeding under this section, an independent appeal may be taken from the judgment rendered in the proceeding. Chenowith v. Chenowith, 64 App. 263, 115 N. E. 758.

SEC.

ARTICLE 49.-REPLEVIN.

1330. When action of replevin lies.

1330. When action of replevin lies.

If a writ of attachment is sent to another county for service, and the sheriff levies the same upon the property of a person who is not a party to the attachment suit, such person may maintain an action of replevin to recover the property. Hoover v. Lewin, 56 App. 367, 105 N. E. 400.

If the possession of goods is obtained by virtue of a contract induced by fraud, the person from whom the goods were obtained may recover the same by an action of replevin. Woods v. Shearer, 56 App. 650, 105 N. E. 917.

If the goods of a person who is not a party to the suit are taken possession of by an officer under a writ of attachment, such person may maintain an action of replevin to recover the goods. Wood v. Rathman, 58 App. 229, 108 N. E. 126. ARTICLE 50.-GENERAL PROVISIONS.

weekly paper.

Defective appeal bonds, new bonds.

1347. Publication in two papers, com- 1356. Words, how certain to be conpensation.

1350. Time, how computed.

strued.

[Acts 1917, p. 152. In force March 5, 1917.]

1346b. Publication in either daily or weekly paper.-1. That in all cases where now the law provides for the publication of legal notices

in a weekly newspaper, it shall be lawful hereafter to make such publications in either a daily or weekly newspaper: Provided, That such publication, if published in a daily newspaper, shall be published at least once a week for the same time and period as now required by law, and Provided further, That if such publication is made only once each week, it shall be made on the same day of each week.

Section 2 repeals inconsistent laws.

Section 3 provides that the act take effect from and after its passage.

1347. Publication in two papers, compensation.

In the absence of an agreement as to the amount to be paid for the publication of legal notices, the printer is entitled to a reasonable compensation for the work not exceeding the fees fixed by law, and if less than the price fixed by law is accepted, the publisher can not sue to recover the balance. Butler v. Board of Comrs., 177 Ind. 440, 98 N. E. 185.

1350. Time, how computed.

When an act is to be performed before a given day, such day is to be considered as one of the days within which the act is to be performed. Ardery v. Dunn, 181 Ind. 225, 104 N. E. 299.

In computing the time within which appeals shall be perfected, no days are to be excluded except Sunday, the statute not excluding holidays. Board of Comrs. v. Tincher etc. Car Co., 49 App. 221, 97 N. E. 22.

Sunday is to be excluded in computing the time for filing briefs when it is the last day. Myers v. Winona etc. R. Co., 50 App. 258, 98 N. E. 131.

When a liability is limited to a specified number of days "from" which a notice is received, the day on which the notice is received is to be excluded in the computation of the time. Mathews etc. Ins. Co. v. Moore, 58 App. 240, 108 N. E. 155. The filing of a transcript on the sixty-first day after the filing of an appeal bond was held to be in time, where the preceding day was Sunday. Crouch v. Shantz, 62 App. 476, 113 N. E. 13.

A transcript filed sixty-one days after the ruling on a motion for new trial and the granting of the appeal, was held filed within time, where the sixtieth day fell on Sunday, and is not a vacation appeal under the terms of section 697. City of Princeton v. Hanna, 187 Ind. 582, 113 N. E. 999, 120 N. E. 598.

Under this section a motion for change of venue filed on the 10th in a case set for trial on the 15th, is in time within the rule requiring it to be filed five days before the case is set for trial. Davidson v. Lemontree, App. 123 N. E. 177. Although this section is applicable only to proceedings in civil cases, yet by previous decisions the rule has become the law as to other matters and is applicable to chattel mortgages. Wartell v. Peters Hotel Co., App. 123 N. E. 480.

1354. Defective appeal bonds, new bonds.

If an appeal bond given on an appeal from a board of county commissioners is defective, the appeal should not be dismissed because of the defect until there is a failure to comply with the order of the court to file a new bond. Neibert v. Long, 184 Ind. 494, 111 N. E. 612.

An appeal will not be dismissed because the bond accepted by the auditor was signed by the town attorney, and not by the trustees of the town. Patterson v. Town of Ft. Branch, 62 App. 333, 113 N. E. 319.

Where the bond filed by remonstrators in a drainage proceeding is insufficient in substance or form, or is not sufficiently secured, it is the duty of the court to order a new bond, and failure to file the same is ground for dismissal. Neibert v. Long, 184 Ind. 494, 111 N. E. 612.

1356.

Words, how certain to be construed.

The phrase "under legal disabilities," includes persons within the age of twentyone years, of unsound mind, or imprisoned in the state prison, or out of the United States. Terre Haute etc. Trac. Co. v. Reeves, 58 App. 326, 108 N. E. 275.

Words used in the singular number also include the plural. Sharpe v. Baker, 51 App. 547, 96 N. E. 627, 99 N. E. 44.

Under this section and sections 10199, 10142, the amount owing to a gas company under a contract conveying the equitable title to its plant, with agreement for conveyance of its legal title on completion of all payments, was held to be personal property and to be assessable for taxation. In re Assessment of Aurora Gaslight, Coke and Coal Co., 64 App. 690, 113 N. E. 1012. See note to section 251.

The word "persons" in this section and section 8295, held to include corporations in view of section 1356. Wood v. Isgrigg Lumber Co., App., 123 N. E. 702. An order denying a petition for allowance of attorney's fees in the matter of an insolvent estate and ordering that petitioners take nothing held a "judgment" within this section. Holtzmann v. Smith, App. 122 N. E. 18.