the court, upon application of either party, refuse to order the officer to retain the property, for the reason that it does not belong to one or more of the kinds of personal property aforesaid, the officer shall deliver the property to the plaintiff, his agent or attorney, upon the execution of an undertaking, as provided in the last section, to be filed with the clerk of the court within ten days from the expiration of the time to give the notice, or in case the notice is given within ten days after the refusal of the court to order the officer to retain the property. [65 v. 81, 2 179; S. & S. 546.]

25821. How value of property fixed. For the purpose of fixing the amount of the undertaking, the value of the property taken shall be ascertained by the oath of two or more responsible persons, whom the sheriff shall swear truly to assess the value thereof. [51 v. 57, ? 180; S. & C. 999.]

25822. Duty of officer with respect to property and liability. If the undertaking required by ? 5819 be not given within twenty-four hours after the property is taken, or after the right first accrues to the plaintiff to receive the property from the officer on executing the proper undertaking, the officer shall return the property to the defendant; and if the officer deliver any property so taken to the plaintiff, his agent or attorney, or keep the same from the defendant, without taking such security within the time and in the manner aforesaid, or if he take insufficient security, he shall be liable in damages. [67 v. 112, ? 181.]

25823. Qualifications of sureties. Exceptions to sufficiency. The defendant may, within twenty-four hours from the time the undertaking referred to in the last section is given by the plaintiff, give notice to the sheriff that he excepts to the sufficiency of the surety, and if he fail to do so, he shall be deemed to have waived all objections to them; when the defendant excepts, the surety must justify upon notice, as bail on arrest; the officer shall be responsible for the sufficiency of his surety until the objection thereto is waived as above provided, or until they justify; and the property shall be delivered to the plaintiff when the undertaking required by ? 5819 is given. [51 v. 57, ? 182; S. & C. 999.]

5824. Proceedings when plaintiff's action fails, etc.

When judgment is rendered against the plaintiff on demurrer, or he fails to prosecute his action to final judgment, the court shall, on application of defendant, assess to defendant proper damages, including damages for the right of property or possession, or both, if he prove himself entitled thereto, or cause the same to be done by a jury, for which, with costs of suit, the court shall render judgment for the defendant. [65 v. 81, ? 183; S. & S. 547.]

25825. Proceedings when jury finds for plaintiff, and on default. When the property is delivered to the plaintiff, or remains in the hands of the sheriff, as provided in ? 5820, if the jury, upon issue joined, find for the plaintiff, and upon inquiry of damages upon a default, they shall assess adequate damages to the plaintiff for the illegal detention of the property, for which, with costs of suit, the court shall render judgment for the plaintiff. [51 v. 57, 2185; 65 v. 81, ? 184 ; S. & C. 1001; S. & S. 548.] See 2 6622.

5826. Proceedings when jury finds for defendant. When the property is delivered to the plaintiff, or remains in the hands of the sheriff, as provided in ? 5820, if the jury, upon issue joined, find for the defendant, they shall also find whether the defendant had the right of property, or the right of possession only (1), at the commencement of the suit; and if they find either in his favor, they shall assess to him such damages (2) as they think right and proper, for which, with costs of suit, the court shall render judgment for the defendant. [65 v. 81, 184; S. & S. 548.]

1. 70. (Pt. 2) 232. A judgment without such finding is erroneous, 12 0. S. 432. Where issues are made upon inconsistent pleas, a general verdict for the defendant upon all is bad, 70. (Pt. 2) 232. Finding property in defendant is good, though property was in defendant and another, W 645. 2. W. 645. It is error to assess defendant's damages without the intervention of a jury, 12 O. S. 432; but in an action before a justice, if no jury is demanded, the justice may assess the damages, 26 O. S. 480. When property which he holds in execution is replevied from the sheriff, and the issue is found for the defendant, the measure of damages is the amount of the execution, with interest and costs if the value of the property exceeds it, and the value of the property if it is less than that amount, 17 O. 154. In replevin for several articles, when the jury find for the plaintiff as to part and for the defendant as to part, assessing to each the proper damages separate judgments should be entered for each, with full costs, 9 O. 72. Notice to plaintiff of jury trial, 45 O. S. 659.

25827. When property not taken or returned, action may proceed as one for damages. When the property claimed is not taken, or is returned to the defendant by the sheriff for want of the undertaking required by 25819, the action may proceed as one for damages only, and the plaintiff shall be entitled to such damages as are right and proper; but if the property be returned for want of the undertaking, the plaintiff shall pay all costs made by taking the same. [51 v. 57, § 186; S. & C. 1001.]

When the property has been returned the action may proceed, and plaintiff may recover to the extent of his interest in the property without any amendment of the pleadings, 10 O. S. 488.

? 5828. Order for delivery may issue to different counties. An order for the delivery of the property claimed may be directed to any county; and several orders may issue at the same time, or successively, at the option of the plaintiff, but only one of them shall be taxed in the costs, unless otherwise ordered by the court. [51 v. 57, 2187; S. & C. 1001.]

25829. When officer may break open building. The officer, in the execution of the order of delivery, may break open any building or inclosure in which the property claimed, or any part thereof, is concealed, but not until he has been refused an entrance into the building or inclosure, and the delivery of the property, after having demanded the same. [51 v. 57, 7 188; S. & C. 1001.] 25830. When action may be brought on the undertaking. No suit shall be instituted on the undertaking given under ? 5819 until an execution issued on a judgment in favor of the defendant in the action has been returned unsatisfied. [51 v. 57, 2 189; S. & C. 1001.]

25831. When order may be set aside at clerk's cost. An order for the delivery of property issued under 25815, without the affidavit required thereby, shall be set aside at the cost of the clerk who issued it, and such clerk, as well as the plaintiff, shall be liable in damages to the party injured. [51 v. 57, 2190; S. & C. 1001.]

CHAPTER XII.

SURETIES-RIGHTS AND REMEDIES OF.

25832. Certain sureties can not waive their rights. In contracts for the payment of money to banks or bankers, sureties in fact, known to the parties to be such at the time such contracts were made, may be proved, and shall be considered in all courts, to be sureties, and have all the privileges of sureties, anything in the contract expressed to the contrary notwithstanding. [43 v. 67.]

20 Bull 102.

25833. Certain sureties may require creditors to sue. A person bound as surety in a written instrument for the payment of money, or other valuable thing, may, if a right of action accrue thereon, require his creditor, by notice in writing, to commence an action on such instrument forthwith, against the principal debtor; and unless the creditor commence such action within a reasonable time thereafter, and proceed with due diligence, in the ordinary course of law, to recover judgment against the principal debtor for the money or other valuable thing due thereby, and to make, by execution, the amount thereof, the creditor, or the assignee of such instrument, so failing to comply with the requisition of such surety, shall thereby forfeit the right which he would otherwise have to demand and receive of such surety the amount due thereon. [61 v. 19, 21; S. & S. 741.]

The notice must be in writing, 41 O. S. 28, and pleaded, 7 O. (Pt. 1) 229. No particular form or words are required. A substantial compliance with the statute is sufficient, 41 O. S. 28; 44 O. S. 430. A notice which is positive in its request to sue, and does not mislead the creditor as to the instrument to be sued on, is sufficient, Id. A notice, "You are hereby required at once to proceed and collect the note you hold upon which I am surety.

I will stand no longer," is sufficient, 40 O. S. 101. The notice must contain an unconditional requirement to commence the action forthwith. A notice that the surety "wishes" the creditor" to proceed against the principal debtor" and collect "the claim, or have it arranged in some way," and that the surety does not wish to remain bail any longer," is not sufficient, 29 O. S. 663. The duty of the creditor to proceed within a reasonable time after such notice is imperative. It is the right of the surety to require that action be brought against the principal and diligently proceeded with; and this right is not affected by the fact of solvency or insolvency of such principal, 44 O. S. 430. Where the principal and surety are residents within the same jurisdiction, the duty of the creditor to commence an action, as required, is not affected by the fact that he is a resi

dent of another state, Id. To entitle the surety upon a note to the benefit of this section, it is not necessary that the fact of suretyship should appear upon the face of the note, Id. Under a similar statute it was held that when the surety gave notice to the creditor to sue, it was not a compliance with the statute to sue the surety alone, 2 O. 303.

25834. Representatives of sureties may have benefit of last section. The executor or administrator of a surety so bound may, in like manner, make such requisition of the creditor, or his executor or administrator, as provided in the preceding section; and in case of failure of the creditor, or his executor or administrator, to proceed as therein required, the executor or administrator, if he make the requisition, shall have the same relief as is therein provided for a surety. [61 v. 19, ? 2; S. & S. 741.]

41 O. S. 28.

25835. Limitation of the last two sections. Nothing in the last two sections contained shall be so construed as to affect bonds required by law to be given by guardians, executors, administrators, trustees of an express trust, public officers, or any bond or undertaking required by law to be given in an action or legal proceeding in any court of this state. [61 v. 19, 22 3, 4; S. & S. 742.]

5836. When surety subrogated and may revive judgment in his own name. When the surety in a judgment, who is certified therein to be such, or his personal representative, pays the judgment, or any part thereof, he shall, to the extent of such payment, have all the rights and remedies against the principal debtor that the plaintiff had at the time of such payment; and proceedings to revive the judgment shall be as provided in 5367, and shall be in the name of such surety or representative, but the plaintiff in the original action shall not be liable for any costs therein. [78 v. 19; 68 v. 17, 21.]

The section is constitutional, 36 O. S. 155.

2 5837. Sureties of county officers may apply to be discharged. A surety of a sheriff, auditor, probate judge, county treasurer, clerk of the court of common pleas, recorder, or coroner, may at any time notify the county commissioners, by giving at least five days' written notice, that he is unwilling to continue as surety for such officer, and will, at a time to be therein named, make application to the commissioners to be released from