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HARVARD LAW SCHOOL
LIBRARY
GIFT OF
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CIVIL AND CRIMINAL M^/5^
f CODES OF PRACTICE
OB KJBNTUCKY.
WITH
ROTES OF DECISIONS OF THE CODRT OF APPEALS TO JAHOiRT, 1895.
Amendments and Acts relating to Codes to January, 189J.
Bdit^d by jrOHN £>. CARROLL^
LOUI8VILI.E:
THB COURIER-JOUKlf AI< JOB PKINTINO COMPANY, Pt7BLI8HBS8.
1895.
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COP\*RIGHT 1895,
By Courier-Journal Job Printing Co.
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PREFACE
This edition of the Codes contains all amendments, and notes of decisions
to January, 1895, including cases reported in 95 Ky. and 16 Ky. Law
Reporter. Unreported decisions of the Court of Appeals found in the Ky.
Law Reporters bearing upon sections of the Codes have also been inserted.
An index in the middle of a book seems out of place, and 1 have put
indexes to both Codes, as well as forms, at the end of the volume.
The catch words to sections, the indexes ancl the notes have been revised,
rewritten and made more complete, and many forms not in former editions
have been added.
In an appendix will be found the sections of the Kentucky Statutes
relating:
1. To the jurisdiction of all courts in the State.
2. To courts having four judges.
3. To courts having continuous sessions.
4. Selection of special judges.
5. Changes of venue in civil and criminal cases.
Also the laws of the United States relating to the Removal of Actions and
Prosecutions to the United States Courts, and the Rules adopted by the Court
of Appeals of Kentucky.
* In the citation of cases 1 have not assumed to criticise or comment,
i nor undertaken to say what the Court of Appeals will decide when it comes
)^ to construe sections not heretofore passed upon, but have contented myself
iritb stating the law as I have found it in the cases. My observation has
< been that the court does not always adopt the views of the commentator, and
that expressions of opinion are more misleading than useful.
' The Kentucky Statutes contains the general laws of the State not found
J in the Codes, and the relation between the Statutes and Codes is so intimate
, N^that 1 have in every instance where either a section of the Codes or a
note thereto contained any reference to the Statutes, or any section of the
Statutes had any bearing on the Codes, cited and noted the section of
the Statutes applicable.
JOHN D. CARROLL.
^ New Castle, Ky., March, 1895.
'\
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TABLE OF CONTENTS.
CIVIL. CODE AND NOTES, pages 17 to 388.
CRIMINAL CODE AND NOTES, pages 391 to 545.
•^APPENDIX, pages 547 to 595.
FORMS IN CIVIL CASES, pages 596 to 651.
FORMS UNDER CRIMINAL CODE, pages 653 to 679.
INOBX TO CIVIL CODE, pages 681 to 756.
INDEIX TO CRIMINAL CODE, page 757.
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CONTENTS OF CIVIL CODE.
TITLE I.
PAGE.
PRELIMINARY PROVISIONS 17
TITLE II.
FORM OF CIVIL ACTIONS 17
TITLE IIL
PARTIES TO CIVIL ACTIONS 25
Chapter I. Parties to actions generally 25
Chapter II. Parties to certain actions 34
Chapter III. Actions concerning married women 36
Chapter IV. Persons under disability, provisions concerning 37
TITLE IV.
COMMENCEMENT OF A CIVIL ACTION 42
Chapter I. Manner of commencing an action 42
Chapter II. Service of summons 44
Art 1. Actual service 44
Art 2. Constructive service 50
TITLE V.
THE COUNTY IN WHICH AN ACTION MUST OR MAY BE BROUGHT . 55
TITLE VI.
JOINDER OF ACTIONS 64
(9)
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10 CONTENTS OF CIVIL CODE.
TITLE VII.
PAOB.
PLEADINGS IN CIVIL ACTIONS 67
Chafteb I. The pleadings in general 67
Chapter II. The petition 68
Chafteb III. The demurrer 73
Chafteb IV. The answer, counter-claim, set-off, cross-petition ... 77
Chafteb V. The reply and additional pleadings 88
Chafteb VI. Time of pleading S9
Chafteb VII. General rules of pleading 91
Chafteb VIII. Mistakes in pleadings and amendments • • • 102
Chafteb IX. Interrogatories 100
TITLE Vm.
PROVISIONAL REMEDIES 112
Chafteb I. Arrest and bail 112
Art, 1. When and how an order of arrest may be obtained . • . 112
Art 2. Proceedings upon an order of arrest 114
Art, 3. Liability and discharge of bail, and of officer 116
Art, 4 Motion to vacate an order of arrest .118
Chafteb II. Claim and delivery of personal property 119
Chafteb III. Attachment 125
Art, 1. General attachments 125
Art. 2. Attachments in certain actions 148
Art 3. Specific attachments 151
Art 4. Discharge and reinstatement of attachments 153
Chafteb IV. Injunction 156
Art 1. When and how an injunction may be obtained 156
Art 2. Dissolution and reinstatement of injunctions 164
Chafteb V. Receiver 168
Chafteb VL Deposit in court 170
TITLE IX.
TRIAL AND JUDGMENT 172
Chafteb I. Issue 172
Chafteb II. Trial 173
AH. 1. Trial in general 173
Art 2. Trial by jury • 175
Art 8. Trial by the court , 184
Art. 4. Exceptions 185
Art, 5. New trials , , 193
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CONTENTS OF CIVIL CODE, 11
PAOI.
Art 6. General provisions » 200
AH, 7. Time of trial 201
Chapter III. Judgment 205
Art 1. Judgment in general 205
Art 2. Judgment upon failure to answer 211
Art 3. Judgment by confession 212
Art, 4. Manner of giving and entering Judgment 213
Art. 5. Conveyance by commissioners 216
Chaftbb IV. Revivor of Judgments 218
TITLE X
PROCEEDINGS IN CERTAIN ACTIONS 221
Chafteb I. Actions against absent and unknown defendants ... 221
Chapter II. Alimony and divorce 226
Chafteb III. Settlement of trust estates and estates of deceased per-
sons 230
Chafteb IV. Enforcing the satisfaction of judgments 236
Chafteb V. Summary proceedings 230
Chapter VI. Civil proceedings on behalf of the Commonwealth . . . 24i
Chapter VII. Arbitrations and awards 241
Chapter VIII. Forcible entry and detainer 244
Chapter IX. Probate of wills 252
Chapter X. Settlement of accounts of fiduciaries, by the county
court 252
Chafteb XI. Caveats • 253
Chafteb XII. Writs of mandamus and prohibition 255
Chafteb XIII. Repealing or vacating charters, and preventing the usur-
pation of an oflSce or franchise 258
Chafteb XIV. Sales of real property of persons under disability . . . 260
Chafteb XV. Division of land and allotment of dower 270
TITLE XL
REVIVOR OP ACTIONS 274
TITLE Xn.
PROCEEDINGS TO REVERSE, MODIFY OR VACATE JUDGMENTS 279
TITLE Xm.
EVIDENCE . . . . ^ 286
Pabt I. Pboduction of evidence 286
Chafteb I. By whom to be produced 286
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12 CONTENTS OF CIVIL CODE.
PAOB.
Chapter II. Means of production 287
Chapter III. Mode of taking testimony 201
Art. 1. Affidavit 291
Art. 2. Deposition 293
Art. 3. General rules of examination 304
Part II. Competrncy of witnbssbs 309
Part III. Perpetuation of eyidencb 315
TITLE XIV.
MISCELLANEOUS PROCEEDINGS 317
Chapter I. Security for costs 317
Chapter II. Motions and notices 319
Chapter III. Offer to compromise 321
Chapter IV. Submitting a controversy 322
Chapter V. Offer to confess judgment 323
Chapter VI. Proceedings upon executions and distress- warrants . . . 324
Chapter VII. Proceedings by sureties 332
TITLE XV.
GENERAL PROVISIONS 333
Chapter I. Process 333
Chapter II. Duties of clerks 335
Chapter III. Duties of sheriffs 330
Chapter IV. Miscellaneous provisions 337
TITLE XVL
QUARTERLY COURTS, POLICE COURTS, CITY COURTS, MAYORS*
COURTS AND COURTS OF JUSTICES OF THE PEACE .... 348
Chapter I. Mode of proceeding in 348
Chapter II. Appeals from their judgments 354
TITLE XVn.
RULES OF CONSTRUCTION OF THIS CODE 358
TITLE XVm.
APPEALS TO THE COURT OF APPEALS 301
Chapter I. How granted 361
Chapter II. Supersedeas on appeals 374
Chapter III. Trial and decision 379
CONCLUDING PROVISIONS 388
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CONTENTS OF CRIMINAL CODE.
PAGE.
PRELIMINARY PROVISIONS 391
TITLE L
PUBLIC OFFENSES, AND THE MODES OF PREVENTING AND PROS-
ECUTING THEM 302
TITLE II.
CRIMINAL JURISDICTION OF THE COURTS OF THE STATE .... 394
TITLE III.
PROCEEDINGS FOR THE ARREST OF CRIMINALS 400
Chapter I. Warrant of arrest 400
Chapter II. Arrest, by whom and how made 403
TITLE IV.
PROCEEDINGS IN THE EXAMINING COURT 407
TITLE V.
BAIL 415
Chapter I. Admission to bail 415
Chapter II. Surrender of the defendant 420
Chapter III. Deposit of money, in lieu of bail 421
Chapter IV. Forfeiture of bail 422
Chapter V. Recommitment after giving bail, or depositing money . . 426
TITLE VI.
TRIAL 427
Chapter I. Grand Jury, its powers and duties 427
Chapter IL Indictment 431
Art. 1. The finding of an indictment 431
Art 2. Form and requisites of an indictment 432
(13)
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14 CONTENTS OF CRIMINAL CODE.
PAOB.
Chapter III. Process upon an indictment 447
Chaftbb IV. Production of evidence 449
Chaftbr v. Arraignment, and pleadings by the defendant 451
Chapter VI. Trial 400
Art. 1. Modeof trial 460
Art. 2. Time of trial 402
Art 8. Postponement of trial 462
Art 4. The jury 405
Art 5. Conduct of the Jury trial 471
AH. 6. Verdict 493
Chapter VII. New trial and arrest of judgment 498
Chapter VIII. Bills of exception 501
Chapter IX. Judgment 503
Chapter X. Execution 505
TITLE VII.
PROCEEDINGS IN POLICE OR CITY COURTS 508
TITLE Vm.
PROCEEDINGS IN JUSTICES' COURTS 511
TITLE IX.
APPEALS 513
Chapter I. To the Court of Appeals 513
Art 1. In felonies 513
Art. 2. In misdemeanors 520
Art 3. General provisions 523
Chapter II. To circuit courts 524
TITLE X.
PROCEEDINGS TO PREVENT THE COMMISSION OF OFFENSES ... 527
Chapter I. Suppression of riots, and of resistance to lawful authority, 527
Chapter II. Requiring security to keep the peace, or for good be-
havior 530
Chapter III. Arrest and confinement of insane, drunken, and disorderly
persons 533
Chapter IV. Habeas corpus 534
TITLE XI.
IMPEACHMENT 541
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CONTENTS OF CRIMINAL CODE. 15
PAGK.
TITLE Xn.
PROCEEDINGS FOR THE REMOVAL FROM OFFICE OF CLERKS OF
COURTS 543
APPENDIX.
Jurisdiction of courts 547
Courts having continuous sessions 557
Courts having four judges 563
Special judges 569
Change of venue 571
Removal of actions to United States courts 580
Rules of Court of Appeals 593
Fcrm* under Cfivil Code 596
Fqirms under Criminal Code 652
Index to Civil Code 681
Index to Criminal Code 757
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THE
CIVIL CODE OF PRACTICE.
§1-
§3.
TITLE L
PRELIMINARY PROVISIONa
Civil cases defined.
Civil cases are actions or special pro-
Civil aotions defined.
Special proceedings.
Civil cases defined.
ceedings.
§ 2. CivU actions defined. A civil action is a demand, by pleadings,
in a court of justice, for the enforcement of an alleged right of a
plaintiff against a defendant. (" Action '' fuHher defined, sec. 732-8^.)
§ a. Special proceedinss. Every other civil case is a special pro-
ceeding.
TITLE n.
FORM OF CIVIL ACTIONS.
§ 4. Form of action.
§ 5. Kinds of actions.
§ 6. Action— when to be equitable ; when ordinary.
g 7. Lost or mutilated writing— action on.
§ 8. Error as to form of action may be corrected.
§ 9. Error— how corrected.
If 2. (1) Civil actions. See note 1 to
sec. 8.
(2) Proviaioiial remedy, such as an at-
tachment or injunction is not a cause of
action, it is merely ancillary or inci-
dental to the action in which it is sought,
and can only be obtained in the court in
which the action was brought or is pend-
ing at the time it is sought. Moore v.
Sheppard, 1 Met. 97.
I a. (1) Special Pfoceedlnfs. The word
"action" embraces special proceedings.
Sec. 732-d4. In the absence of any special
authority for a summary remedy the
party must resort to a civil action for the
enforcement and protection of his private
rights. Gay v. Morgan, 4 Bush 606, and
it is only in cases where a specific remedy
is provided by statute that rights can be
enforced otherwise than by civil action.
Stephens v. Miller, 80 Ky. 47 ; Kinney v.
O'Bannon, 6 Bush 692. For some of the
cases in which summary proceedings
may be resorted to, see sec. 444. Veach
V. Wickersham, 11 Bush 261.
(2) Claimants* bond for property levied
on under execution — motion for judg-
ment on, as provided In sec. 449, is a
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18
FORM OF CIVIL ACTIONS.
[title n
§ 10. Transfer of actions from one docket to the other.
§ 11. Ordinary action — how transferred to equity— practice.
§ 12. E^quitable action — how transferred to ordinary — practice.
§ 13. Transfer of actions from one court to another.
§ 14. Bond may be required before ordinary action transferred.
§ 15. Waiver of error as to form of action — *' exception.'*
§ 16. Provisions of Code apply to all civil actions.
§ 17. Ordinary judgment — when corrected in equity.
§ 4 [1] Pomi of acthm. There shall be but one form of action.
§ 5 [8] Kinds of actions. Actions are ordinary or equitable.
§ 6 [«tOj Action — ^when to l>e eqnitalile; when ordinary. Unless otherwise
provided by this Code or other statute —
1. Actions of which courts of chancery had jurisdiction before
the first day of August, 1851, may be equitable ; and actions of
which such jurisdiction was exclusive must be equitable.
2. All other actions must be ordinary.
special or summary proceeding. Couch-
man V. Maupin, 78 Ky. 38 ; Watson v.
Gabby, 18 B. M. 658.
(3) Bastardy case is a civil or special
proceeding, the chief object of which is
the benefit of the mother and child.
Francis v. Com., 3 Bush 4; Chandler v.
Com., 4 Met. 66 ; Runner v. Com., 78 Ky.
566.
(4) Proceeding to enforce a forfeited
recognizance or bond is a civil proceed-
ing. Com. V. Hughes, 13 Bush 349.
§ 4. Forms not substance abolished by
Code; and the pleader must state inordi-
nary and concise language the facts con-
stituting the cause of action, every fact
necessary to enable the plaintiff to re-
cover must be alleged, and every essential
allegation required to make a declara-
tion good at common law upon demurrer
must be made. The facts must be al-
leged so as to enable the opposite party
to know what is meant to be proved, and
also that an issue may be formed in re-
gard to the subject matter in dispute
and to enable the court to pronounce the
law upon the facts stated. Louisville
Canal Co. v. Murphy, 0 Bush 522 Stivers
v. Baker, 87 Ky. 508 ; Murphy v. Estes,
6 Bush 532 ; Huflfaker v. Nat. Bank, 12
Bush 287.
§6 (1) Distiaction between courts of
equity and courts of law has not been
abolished by the Code, but if an action
be brought in equity when it should have
been in ordinary, or vice versa, it shall not
on that account be dismissed, but trans-
ferred to the proper docket. Fraley v.
Peters, 12 Bush 469 ; and see sec. 8.
(2) Eiinitable and ordinary ncttons defined.
The pleadings in equitable and ordinary
actions are the same, except that a peti-
tion in equity must be described by the
words ** petition in equity." Sec. 110-2.
Without attempting to state fully what
actions should be equitable and what
ordinary, it may be stated that equity
has jurisdiction of actions on return of
** no property " and for discovery, sec.
439; by surety against principal before
debt matures, sec. 237, and after ma-
turity of debt, sec. 661 ; for sale of real
property of infants and persons of un-
sound mind, sec. 489, and of joint owners,
sec. 490; to settle trust estates and
estates of deceased persons, sec. 428 ; to
grant divorces and for alimony, sec. 420 ;
to grant injunctions, sec. 271 ; to par-
tition land and allot dower, sec. 499;
to enforce liens on real and personal
property. Actions for assault and bat-
tery, assumpsit, covenant, debt, to re-
cover possession of real estate and specific
personal property, or for fraud or deceit
in the sale of property, or for malicious
prosecution, or seduction, or slander, or
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TITLE II] FORM OF CIVIL ACTIONS. 19
§ 7 [•} Lost or mutilated writiof — actloa on. An ordinary or equitable
action may be brought upon a bill of exchange, or a note or other
obligation, or upon an indorsement or assignment thereof, which, or
upon a judgment the record of which, is lost, destroyed, mutilated,
or defaced, without fraud on the part of the plaintiff*, or of those
under whom he claims. But no action shall be brought upon an
instrument transferable by delivery, merely, which is alleged to be
lost, destroyed, mutilated, or defaced, without a previous tender by
the plaintiff to the defendant, if his name and place of residence be
known to the plaintiff, of an indemnifying bond, with good
surety ; nor shall judgment be given against the defendant, in such
action, until such bond is given, with good surety approved by the
court. {Form of bendy page 626.)
§ 8 [T] Error as to form of action may be corrected. An error of the plain-
tiff" as to the form of action shall be cause, not for the abatement or
dismissal of it, but merely for a change into the proper proceedings
by an amendment of the pleadings and a transfer of the action to
the proper docket.
§ 9 [•] Error — how corrected. The error mentioned in the last section
may be corrected by the plaintiff", without motion, at any time before
the defendant answers, or afterward by leave of court.
§ 10 [tj 1. Transfer of actions from one docket to the other. The defendant,
Hbel, or trespass, or to recover rent, tion, an error as to the form of action
should be brought in ordinary. New- adopted does not authorize a dismissal ;
man's Pleading and Practice. it should be transferred to the proper
• (3) Belief In equity. If a party may docket. Lansdale v. Mitchell. 14 B. M.
maintain a common law action ^r dam- 348; Foster v. Watson, 16 B. M. 877 ; 15
ages for an injury to property, he may, in B. M. 168 ; 1 Met. 593 ; 12 Bush 460. And
a proper state of case, resort to equity to advantage must be taken of the error by
prevent the Injury. Greenup Co. v. M. a motion to transfer to proper docket.
& B 8. R. Co., 88 Ky. 659. Greenup Co.v. M. &B.S.R.Co.,88Ky. 659.
1 7. (1) Bold of tademlty. This sec- (2) Practice -ameodaieiit In an ordinary
tion applies to bank notes. Commercial action to recover possession of property.
Bank v. Benedict. 18 B. M. 307. The a lien can not be enforced without an
bank having denied its liability, the pre- amendment asking that relief and a
liminary execution of the bond was not transfer to equity. Hewman v. Whites-
necessary, its execution before judgment carver, 89 Ey. 633 ; and see Walker v.
being sutBcient. lb, Leslie, 90 Ky. 642.
(2) Judgment for the amount of a §9. Motioa to traasfcr to ordinary is
Dote held by a non-resident adverse equivalent to an objection to a trial
claimant, without a bond of indemnity by the chancellor, and if motion is im
being executed, was held erroneous. properly overruled it is a reversible error.
Berry v. Berry, 6 Bush 594. Walker v. Leslie, 90 Ky. 642.
§6. (1) Error at to fonn of action— how §10. (1) Judgment of cliancellor— how
corrected. When the court has Jurisdio- treated in action at law. When an ordinary
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20
FORM OF CIVIL ACTIONS.
[title II
by motion made when he answers, may have an equitable action
transferred to the ordinary docket, if, according to the provisions of
section sii, it should have been an ordinary action, and if the answer
present a defense of which he is entitled to a jury trial.
2. The defendant, by motion made when or before he answers,
may have an ordinary action transferred to the equity docket, if,
according to the provisions of section six, it should have been an
equitable action.
8. The court may, without motion, order the transfer of an
action from one docket to another if either party be entitled to
such transfer; or may try the action, or render judgment therein
by default, unless a party entitled to a transfer move therefor.
4, [The court may, in its discretion, on motion -of either party, or
without motion, order the transfer of an action from the ordinary
to the equity docket, or from a court of purely common law to a
court of purely equity jurisdiction, whenever the court before
which the action is pending shall be of the opinion that such
transfer is necessary because of the peculiar questions involved, or
because the case involves accounts so complicated or such great
detail of facts as to render it impracticable for a jury to intelli-
gently try the case.] ( Words in brackets inserted by act of 1890.)
aotion is submitted to tlie clianceilor or
heard by him without objection, his judK-
ment will be treated as the verdict of a
properly instructed jury, and, unless
palpably against the evidence, will be
sustained. P. C. & St. L. R. R. Co. v.
Woolley, 13 Bush 461 ; Walker v Leslie,
90Ky. 642; Judge v. BraswelU 13 Bush
67; Moore v. Estes, 79 Ky. 282; Whit-
lock V. Ledford, 82 Ky. 390 ; 87 Ky. 30 ;
12 Bush 469.
(2) Legal issues ia equity action. In an
equitable action, if the defense presents
an issue proper for a jury to try and
action is not transferred, the chancellor
should dispose of all the issues presented,
or submit the legal issues to a jury.
Prazier v. Naylor, 1 Met. 593 ; Sale v.
Crutchfleld, 8 Bush 636. Defendant is
entitled to have legal issues tried by a
jury. Meek v. McCall, 80 Ky. 371, and
see notes to sec. 12.
(3) Matters of accoont A court of
equity has concurrent jurisdiction in
matters of account where they are of
such a complex nature as to render the
remedy at law inadequate, and this juris-
diction should be exercised where there
is a serious doubt as to the true state of
the accounts or there is diflBculty in ad-
justing them. O'Connor v. Henderson
Bridge Co. , 95 Ky. 638 ; and see 78 Ky. 435.
(4) Practice— billot exceptions. When an
ordinary action is brought and heard In
equity the court will treat the evidence
copied and certified by clerk as part of
record without a bill of exceptions. Fra-
ley V. Peters, 12 Bush 469.
(5) Waiver of obfection to form of actioa.
If an action at law is brought in equity,
and neither party moves to transfer, and
it is not transferred by the court, It is the
duty of the court to render judgment ac-
cording to the rights of the parties. Ky.
Mut. Co. V. Turner, 89 Ky. 665 ; and its
judgment on the facts will be treated as
the verdict of a jury by the Court of
Appeals. Fraley v. Peters, 12 Bush 469.
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TITLB n]
FORM OF CIVIL ACTIONS.
21
§ 11 uo] Ordloiry ictloa — kow traiuf erred to equity — practice. In an ordi-
nary action properly commenced as such —
1. K there be several issues, all of which were, before the first
day of August, 1851, cognizable in chancery, though none was
exclusively so, either party may, by motion, have the case trans-
ferred to the equity docket.
2. Either party may, by motion, have the case transferred to
the equity docket for the trial of any issue which, before the said
day, was exclusively cognizable in chancery.
3. K there be an issue which was not cognizable in chancery,
and an issue which was exclusively cognizable in chancery, before
the said day, the plaintifl:' may have the former issue tried before
the latter is disposed of.
4. If there be an issue which was not cognizable in chancery,
and an issue which was cognizable in chancery, but not exclusively
so, before the said day, the case shall not be transferred to the
equity docket without consent of the parties.
§ II. (1) Defefldant not entitled to trans-
Jcr of an ordinary action, properly com-
menoed as such, unless the answer pre-
sents a valid equitahle defense. Jones v.
Letcher, 13 B. M. 363, but see amend-
ment to sec. 10, and note 3 thereto.
(2) Equitable defense. When an answer
filed in an ordinary action contains a
valid equitable defense, no judgment can
be rendered until some disposition is
made of the answer, and in such case the
xiction should be transferred to equity.
Bosley v. Mattingly, 14 B. M. S9 ; Harreld
V. Howard, 80 Ky. 51.
(3) EqaHable and legal defense; If the
answer to an ordinary action presents an
equitable and a legal defense, the equi-
table issue should be tried by the court
and the legal issue referred to a jury, un-
less a jury is waived. Both issues should
be disposed of before judgment. Smith
V. ,Moberly, 15 B. M. 70 ; Petty v. Malier,
153. M. 591 ; Geoghegan v. Ditto, 2 Met.
433; Bennett v. Titherington, 6 Bush
192.
(4) Where legal and equitable issues
are formed in an ordinary action, the
court should transfer only the equitable
issue to equity, because if the equitable
defense fail, the defendant is entitled to
a jury to try the legal issue; but if the
equitable issue is a complete defense to
the action, the refusal to submit legal
issue to a jury is not error. Wimmer v.
Ficklin, 14 Bush 193.
(5) Error in transferrins ordinary action.
If the plaintiff in an ordinary action is
entitled to a jury trial, it is error to
transfer action to equity, and he is not
concluded by the judgment dismissing
his petition, although he failed to take
proof to support his cause of action.
Creager v. Walker, 7 Bush 1 ; nor does a
party waive his right to a trial by jury by
consenting to a transfer so that certain
issues may be tried with a pending equi-
table aotion. Betz v. Newport P. M. A.,
6 R. 232.
(6) The constitution guarantees a jury
trial, and a party can not be deprived of
that right by converting a legal right
into an equitable one or by giving the
chancellor an exclusive right to try
legal issues because there is some equi-
table right that arises out of them.
Carder v. Weisenburgh, 95 Ky. 135;
O'Connor v. Henderson Bridge Co., 95
Ky. 633 ; 78 Ky. 435.
(7) Pailnre to transfer an action prop-
erly brought at law to equity for the
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FORM OF CIVIL ACTIONS.
[title n
§ 12. EqoitaMe actiofl — bow traosferred to ordioary — practice. In an
equitable action, properly commenced as such, either party may, by
motion, have the case transferred to the ordinary docket for the trial
of any issue concerning which he is entitled to a jury trial ; but
either party may require every equitable issue to be disposed of
before such transfer.
§ 13. Transfer of actions from one court to anotlier. In counties wherein
the jurisdiction of circuit courts is vested in different courts —
1. The provisions of this chapter, concerning transfers to the
proper docket, apply to transfers to the proper court.
2. Upon an order for the transfer of an action from one court
to another, the papers in the action and a copy of the order shall
be delivered by the clerk of the court which makes the order to
the clerk of the court to which the action is transferred ; and it
shall proceed as if it had been brought in the latter court. {Trans-
fer of attachments^ sec. 210.)
§ 14 [11] Bond may be required before ordinary action transferred. In an
purpose of having aUeged mistakes cor-
rected, is not a reversible error when the
case is disposed of by the judge in the
same manner as if it had been tried by
the chanceUor. Mullins v. Pendleton
Co., 6 R. 508.
§ 12. (1) Igsne oat of cbaacery. If the
issue involved in an equitable action is
purely a legal one, and the equitable
right depends upon the decision of such
issue, the case, on motion, must be trans-
ferred for a jury trial, and the court has
no discretion in the matter; but if the
case is purely equitable, the court may or
may not, in its discretion, obtain the ad-
visory aid of a jury as to an issue of fact.
Carder v. Weisenburgh, 95 Ky. 135;
O'Connor v. Henderson Bridge Co., 95
Ky. 633 ; Hill v. Phillips, 87 Ky. 169 ; the
matter of referring questions of fact in
equity case to a jury in aid of the chan-
cellor is always addressed to his discre-
tion, and this court will not undertake to
control his action in that regard unless
there has been a palpable abuse of that
discretion. Blakey v. Johnson, 13 Bush
197; Kennedy v. Ten Broeck, 11 Bush
241.
(2) Jary trial— effect of verdict When
a distinct legal issue is submitted to a
jury in an action begun in equity and
transferred for the settlement of the legal
issue, the verdict of the jury is to be
treated as in ordinary jury trials, and will
not be disturbed unless palpably against
the evidence. Hill v. Phillips, 87 Ky.
169 ; but when an issue of fact in a
purely equitable action is submitted to a
jury, their verdict is not necessarily con-
clusive, and the chancellor may disregard
It. Hill V. Phillips, 87 Ky. 169; Mc-
Elwain v. Russell, 11 R. 649.
(3) Motion to transfer comes too late
after the court has rendered a judgment
determining all the issues involved.
Hartford Ins. Co. v. Haas, 87 Ky. 531,
and see further notes to sec. 10.
(4) See farther sees. 312 and 313, and
notes thereto.
§ 13. Transfer from one coort to another.
An answer and cross-petition may be
transferred under this section from one
court to another, although the petition
is not removed, and the court to which
it is transferred may try the issue pre-
sented by the cross-petition in the ab-
sence of the petition. Harreld V. Howard,
SOKy.Sl.
§ 14. Failure to five bond— trial of equi-
table issue. To a suit on a note, defendant
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TITLE nj FORM OF CIVIL ACTIONS. 23
ordinary action, properly commenced as such, if the defendant be
entitled to the transfer of one or more issues to the equity docket,
and move for such transfer, the plaintiff may file his affidavit that he
verily believes he will succeed in the action, and that the collection
of his claim, after judgment, will be endangered by delay arising
from such transfer ; and if such affidavit be filed, the court shall not
grant the motion of the defendant to transfer, except upon condition
that the defendant execute a bond, with good surety, approved by
the court, that he will pay any judgment rendered in favor of the
plaintiff: Provided^ That no such bond shall be required if the trial
of the case or issue transferred take place during the term at which
the transfer is made, nor until all issues not transferred are tried or
disposed of in favor of the plaintiff. {Fomi of affidavit, page 627.
Form of bond, page 626,
§ 15 [is] Waiver of error as to forni of action — '' exception/' An error as to
the kind of proceedings adopted in the action is waived by failure
to move for its correction at the time and in the manner prescribed
in this chapter; and errors in the decisions of the court, on any of
the motions named in this chapter, are waived, unless excepted to at
the time — which may be done by the clerk noting, at the end of
such decision, words of the following import : " To which decision
the plaintiff (or defendant) excepts." {See further as to exceptions,
sec. 333.)
§ 16 [18] Provisions of Code apply to all civil actions. The provisions of
this Code apply to all civil actions, unless the contrary appears.
pleaded an exclusively equitable defense Watts, 84 Ky. 537, the court say ** It was
and moved to transfer to equity. The therefore not intended that either the act
plaintiflf filed the affidavit provided for adopting the civil or the one adopting
in this section, and, failing to execute the criminal Code should repeal the Gen-
bond, his motion was overruled. Defend- eral Statutes as a whole or any part
ant then transferred his answer and cross- thereof, except such as in the repealing
petition to another court. The court sections of both comes within the pur-
say: "Had he let his answer remain view of the acts respectively." Thepro-
where it was when his motion to transfer vision repealing all acts coming within
was overruled, no judgment could have its purview should be understood as re-
been rendered against him until the issue pealing all acts in relation to cases which
presented by it was disposed of, because are provided for by the repealing act,
he had a right to rely upon an equitable and that the provisions of no act are
defense, and, having made the motion to thereby repealed in relation to cases not
transfer the case to equity, no trial of provided for by it ; and see sec. 838.
the action or judgmentby default could (2) ** Finding such an intermingling
have been had, as is contemplated by of rights and remedies in the Code and
sec. 10, subsec. 3 of Code." Harreld v. Statutes, this court holds that a remedial
Howard, 80 Ky. 51. act found in the General Statutes is not
§16. (1 ) Conflict of lawg. In Com. v. repealed unless a remedy for the enforce-
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FORM OF CIVIL ACTIONS.
[title II
§ 17 [14] Ordinary fudfaeit — when corrected io e^ohy. A judgment ob-
tained in an ordinary action shall not be annulled or modified by
any order in an equitable action, except for a defense which arises or
is discovered after rendition of the judgment. But such judgment
does not prevent the recovery of any claim which was not, though
it might have been, used as a defense by way of set-off or counter-
claim in the action. {As to how judgments vacated and modifiedy secs^
613 to 6U')
ment of the same right is found in the
Code." Newman v. Ecton, 14 R. 793.
(3) Special practice acts passed prior to
adoption of present constitution and
which are not in conflict with its pro-
visions, or laws made in pursuance
thereof, are yet in force. Piper v. Gun-
ther, 95 Ky. 115.
1 17. (1) Commoa law jodsment The
chancellor has no jurisdiction to cancel,
set aside or correct common law judg-
ment, except for some cause of new trial
under other provisions of the Code, or for
defense arising or discovered after judg-
ment. Emmerson v. Herriford, 8 Bush
229 ; Farmers Bank v. Collins, 13 Bush
138 ; Com. v. Cain, 80 Ky. 318.
(2) Common law judgment against a
cestui que trust in an action to which
trustee was not a party, does not bind the
trustee, and he may resist its enforcement
against the trust estate. Roberts v.
Yancey, 94 Ky. 243 ; nor is judgment
against personal representative conclu-
sive against the heirs in an action to sub-
ject estate received by them. Jones v.
Com. Bank, 78 Ky. 413; Stevenson v.
Flournoy, 89 Ky. 561 ; Willis v. Roberts,
90 Ky. 122.
(3) Defease known moat be pleaded. If
the matter of defense is substantially
within the knowledge of defendant at
the time judgment is rendered against
him, he will not be permitted to aimul
or modify the judgment. McCown v.
Macklin, 7 Bush 308.
(4) Where a defendant fails to plead
a payment he has made on claim sued on
he can not thereafter, in the absence of
fraud or mistake, have judgment modi-
fied by chancellor or enjoin its collection
in order that he may use as a set-off the
payment. Walker v. Thomas, 88 Ky.
486.
(5) Usary — attorney fee. If defendant
permits judgment for usury to go against
him without interposing a defense known
to him at the time, he can not after-
ward have the judgment modified.
Chinnv. Mitchell, 2 Met. 92; Thomas-
son V. Townsend, 10 Bush 114; but he
may in an action at law recover usury
paid by him either upon a judgment at
law or in equity. Sherley v. Trabue, 85
Ky. 71 ; or he may recover it by an action
in equity. Ross v. Ross, 3 Met. 274.
(6) When a judgment is rendered by
default for an attorney fee stipulated in
the writing sued on, and properly set up,
the defendant will be without remedy.
Thomasson v. Townsend, 10 Bush 114.
(7) Void judgment may be resisted in
any court in which it is attempted to be
enforced. Spencer v. Parsons, 89 Ky.
577 ; Stevens v. Deering, 10 R. 393.
^#apM»i€^#i />^/f./f Ai Z^^U.^,J/J
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TITLE III]
PARTIES TO ACTIONS GENERALLY.
25
TITLE m.
PARTIES TO CIVIL ACTIONS.
Chapter I. Parties to actions eENBRALLY, 18.
II. Parties to certain actions, 30.
III. Actions concerning married women, 34.
IV. Persons under disability — provisions concerning, 35.
CHAPTER I.
PARTIES TO ACTIONS GENERALLY.
§ 18. Action to be in nam* of party in interest — exception.
§ 19. Assignee of chose in action— check or bill.
§ 20. Assignment pending action — practice.
§ 21. Fiduciar}' or person authorized by Statute.
§ 22. Interested persons may be joined as plaintiffs.
§ 23. Interested person may be made defendant.
g 24. Persons united in interest must be made parties.
§ 25. Numerous parties— one or more may sue or defend for all.
§ 26. Contracts — bills — checks— action on.
§ 27. Action against persons jointly bound on contract.
§ 28. New parties — court may require — practice.
§ 29. Claimant of property may be made party— practice.
§ 18 [SO] Action to be in name of party in interest-
xception. Every action ^^f.
§ 18. (1) Actios for ooe*8 benefit makes
klfli party. One for whose use and benefit
It is stated in the petition an action is
brought is thereby virtually made a
party, and may by amended petition
assume the attitude of plaintiff. Fen-
wick V. Phillips, 3 Met. 88; Neely v.
Merritt, 9 Bush 346 ; see also Revill v.
Claxon, 12 Bush 558.
(2) Adniaistrator de boats non may
maintain an action on a note taken by
former administrator in his own name
for a debt due the intestate, he not bein^
charged with it in the settlement of his
accounts. Burrus v. Roulhac, 2 Bush
39 ; Maraman v. Trunnell, 3 Met. 146.
(3) Assigaor of oote. Payee of note
who has transferred it by parol is neces-
sary party to an action in name of as-
signee. Gill V. Johnson, 1 Met. 649 ;
Perry v. Seitz, 2 Duv. 122 ; but if assign-
ment is in writing assignor is not neces-
sary party. True v. Triplett, 4 Met. 57.
(4) Banic check. Holder of a check
who can trace legal title to it may main-
tain action on it, whether he possesses
beneficial interests in it or not. Har-
pending v. Danielj 80 Ky. 449.
(5) The holder of an unaccepted check
on bankers may maintain action on it
against them, if drawer had sufficient
deposit to pay it at the time it was
drawn, and they were notified it was
drawn on them. Lester v. Given, 8
Bush 357.
(6) Beneficiary of contract Party for
whose benefit a contract is made may
sue thereon in his own name, although
the undertaking is not directly to or
with him. Allen v. Thomas, 3 Met. 198 ;
Smith V. Smith, 5 Bush 625. And see
Rogge V. Cassidy, 12 R. 54 ; Paduoah
Lumber Co. v. Paducah Water Co., 89
Ky. 340; Davis v. Wiley, 3 R. 315.
(7) The beneficial owner of notes sued
on is necessary party. Humphreys v.
Pearce, 1 Duv. 237 j Carpenter v. Miles,
17 B. M. 598.
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PA.RTIES TO ACTIONS GENERALLY.
[title III
must be prosecuted in the name of the real party in interest, except
as is provided in section twenty-one.
(8) Consignee of foods or property is
the proper person to maintain action
against the oarrier. Smith v. Lewis, 3
B. M. 229 ; Allen v. Thomas, 3 Met. 198.
(9) Co^bligor poyins debts may sue other
obligors in name of payee, if at time he
pays debt it is agreed that suit shall be
so brought. Smith v. Lattimer, 15 B.
M. 76.
(10) Corporttion may maintain suit in
its own name on the bond of one of its
officers, though executed to the presi-
dent and directors. Graves v. Leb. Nat.
Bank, 10 Bush 23; and may sue to re-
cover stock subscribed before company
was organized. Lackey v. R. & L. T.
P. Co., 17 B. M. 48.
(11) Action against officers of a cor-
poration for misconduct should be
brought by the corporation; but if its
officers decline to sue, the stockholders
may sue in equity. . Jones v. Johnson,
10 Bush 649 ; 79 Ky. 300.
(12) Action lies in corporate name to
recover stock subscribed to the corpora-
tion before its organization, and made
payable to the president and directors.
Lackey v. R. & L. T. P. Co., 17 B. M.
43.
(13) County. Action for unlawfully
burning courthouse may be brought by
county. Christian County v. Rankin, 2
Duv. 502. And for injury to county
roads county may maintain action.
Lawrence County v. Chattaroi R. R.
Co., 81 Ky. 225; L. & N. R. R. Co. v.
Whitley Co., 95 Ky. 215. See further,
Montgomery Co. v. Menifee Co., 93
Ky. 33.
(14) Covenants real run with the land,
and if broken the right of action is in
the transferee of the covenantee. Nun-
nally v. White, 3 Met. 584.
(15) Creditor may maintain action on
an obligation executed to his debtor by a
person who agreed therein to pay his
debts. Garvin v. Mobley, 1 Bush 48.
f (16) Equitable owner. Action for debt
/ not assignable by statute must be
brought in name of equitable owner, and
the assignor is a necessary party, either
plaintiff or defendant. Lytle v. Lytle,
2 Met. 127, and see sec. 19.
(17) Execntor antiiorised tp sell land de-
vised to him for that purpose may main-
tain an action to recover it. Jenning v.
Monk, 4 Met. 103 ; but where the exec-
utor is only vested with the naked right
to sell and distribute the proceeds, action
must be brought by heirs. Reynolds v.
Boyd, 92 Ky. 249; Warfield v. English,
11 R. 263.
(18) Prandnlent conveyance. Action to
set aside fraudulent conveyance made b3'
a bankrupt should be in name of as-
signee. Anderson v. Anderson, 80 Ky.
638 ; and see Ky. Stat. sec. 84.
(19) Qoaranty, action on. In an action
by a depositor of a bank on a guaranty to
pay the depositors the amount of their
deposits, the other depositors are not
necessary parties. Stedman v. Guthrie,
4 Met. 147.
C^) Members of ctanrcta who have been
excommunicated can not maintain an
action concerning the church property.
Shannon v. Frost, 3 B. M. 253.
(21) Mistake by bank in paying out too
much money on check of general deposi-
tor, action to recover money should be
in name of bank. Keene v. Collier, 1
Met. 415.
(22) Obligation to two persons. Neither,
has a separate right of action unless other
has assigned to him. Quisenberry v. Ar-
tis, 1 Duv. 30.
(23) Obligor and payee same person.
When a note is made payable to one of
thp obligors and a third person, the third
person can sue in his own name. Qui-
senberry V. Artis, 1 Duv. 30.
(24) Officer's bond. Action on may be
brought by a party in interest in his own
name, if tliere is any covenant in the
bond to the benefit of which he is enti-
tled. Hughes V. Cotton, 18 Bush 596 ;
Lane v. Kasey, 1 Met. 410; or action
may be brought in name of Common-
wealth for benefit of party injured. Com.
V. Teal, 14 B. M. 29.
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'"""^irn.B nil pabtibs to actions oenerallt. 27
§ 19 [81] Assifoee of chose io actioo — check or bilL In the case of an PqXUaL
assignment of a thing in action, the action by the assignee is without a^^^
prejudice to any discount, set-oft* or defense now allowed ; and if the
assignment be not authorized by statute the assignor must be 2»^^^^^
party, as plaintiff pr defendant. This section does not apply to bills 4-^^ '*''
\
I J* of exchange, nor to promissory notes placed upon the footing of y^ C tZ
f 1? t ^^^^ ^^ exchange, nor to common orders or checks. (When assignee /^iv^ l/—
1^ iAreqidred to secure costs, sec. 619 ; see further as to assignable instru-
$ i i mpntA and hillR nf PT(*hn.nnp.. uppr !,7h. hRR Kti a^jjJ \ I Q9 ^ *
f
^ J 1 wi€n^5 and bills of exchange, sees. ^7^, 4^3, Ky. Stat.)
(25) Order onaccepted. The holder of
an unaccepted order drawn by the holder
of a note upon'the payor for part of the
note can not maintain an action on the
order against the payor. Weinstock v.
Bellewood, 12 Bush 130.
(26) Payor aod creditor may uoite. One
who is bound for a debt by pi^rol under-
taking may unite with his creditor to
whom he has paid it in an action against
person who received benefit of debt.
Dean v. English. 18 B. M. 132.
(27) Slakeliolder. Action under statute
to recover money from a stakeholder
must be brought in name of principal.
Donahoe v. McDonald, 92 Ky. 123 ; Ky.
Stat., sec. 1959.
(28) Telefrapta nessase. Party to whom
a telegraphic message is addressed as
well as the sender may maintain action
against company for damages for failing
to deliver it. Chapman v. W. U. T. Co.,
90 Ky. 265.
- (29) Trust property. Where a deed of
trust vests property in the cestui que trttsi
subject to his debts, any creditor may
sue for his debt without making other
creditors parties, or alleging that he is
only creditor. Goldburg v. Drabelle, 4
* Bush 426.
1 19. (1) Assifnmeiits aathorlzed by stat-
Bte, see Kentucky Statutes, sec. 474 ; as
to what promissory notes are placed on
footing of bills of exchange, see Kentucky
Statutes, sec. 483.
(2) Assifaneiit^how nade. Any order,
writing or act which makes an appropri-
ation of the fund amounts to an equi-
table assignment. No set form of words
is necessary. Frankfort Bank v. Hunter,
3 Mar. 292; Newby v. Hill, 2 Met. 530;
and a chose in action may be assigned by
parol. Gray v. Briscoe, 6 Bush 687 ; 2
Met. 530.
(3) Bills aod notes — defeases agaiast.
When a note payable and negotiable at
an incorporated bank is discounted be-
fore maturity by such a bank, partial or
total failure of consideration or fraud
will not be available as a defense to it,
nor will any discount or set-oflf be allowed
against it. Kelly v. Smith, 1 Met. 313 ;
Spencer v. Biggs, 2 Met. 123; but if dis-
counted after maturity it is subject to
such defenses as might have been made
against original owner. Greenwell v.
Haydon, 78 Ky. 332 ; Lester v. Givens, 8
Bush 357.
(4) A note in the haqds of one wlio
has procured it to be discounted in a
bank and has afterward taken it up is
subject to any defense that could have
been made against it before discount.
Cline V. Templeton, 78 Ky. 550; and ?lie
holder of commercial paper who has re-
ceived it as collateral security for an
antecedent debt is not a bona fide holder.
78 Ky. 332; 1 Met. 628.
(5) A promissory note payable in an-
other State, and placed by the laws
of that State on the footing of a bill of
exchange, is to be treated here as a bill of
exchange. Stevens v. Gregg, 89 Ky.461;
overruling Davis v. Morton, 5 Bush 160.
(6) Note payable at a private bank can
not be put on footing of a bill of exchange.
Campbell v. Farmers Bank. 10 Bush 152;
and see further Payne v. Bank, 10 Bush
176: 4 Bush 268.
(7) Defease against assigaee. The debtor
may, as against assignee, avail himself of
any defense arising before he had notice
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PARTIES TO ACTIONS GENERALLY.
[title ni
§ 20 [8S1 A^simettt peodiof actioo — practice. If the right of the plaint-
iff be transferred or assigned during the pendency of the action, it
may be continued in his name ; or the court may allow the person to
whom the transfer or assignment is made be substituted in the action,
proper orders being made as to security for the costs.
§ 21 (88J Fiduciary or persofl antliorixed by statute. A personal represent-
ative, guardian, curator, committee of a person of unsound mind,
trustee of an express trust, a person with whom or in whose name
a contract is made for the benefit of another, a receiver appointed
by a court, the assignee of a bankrupt, or a person expressly author-
ized by statute to do so, may bring an action without joining with
him the person for whose benefit it is prosecuted. {Who is ^'Personal
representative^' sec. 73^17.)
of assig'nment and which he could have
rejied on in an action by person to whom
ne executed note. Chiles v. Com., 3
Mar. 231 ; Day v. Billingsly, 3 Bush 157 ;
4 Mon. 79.
§20. (1) Assifaneot peodiog salt— costs.
Where a right of action is assigned pend-
ing the suit, and the assignee substituted
on the record without objection from the
adverse party, the original party is re-
leased from liability for costs. Warner
V Turner, 18 B. M. 758.
(2) This section vests a discretion in
the court to be exercised in the further-
ance of justice ; and when the party to
whom assignment is made is substituted,
security should be required for past and
future costs. Dougherty v. Smith, 4
Met. 279.
(3j Compromise after notice of transfer.
After a claim in suit has been transferred
10 a third person not a party to the ac-
tion, and the defendant notified of the
transfer, he can not compromise with the
piaintifl to the prejudice of the assignee.
Cantrell v. Hewlett, 2 Bush 311.
(4) Notice of snbstitiftion. Where the
piuntiff in an action makes an assign-
ment for the benefit of his creditors, it is
not necessary to give defendant notice'of
the substitution of the assignee as plaint-
iff. Jewell V. Porter, 11 R. 162.
(5) Rights of assifnee. This section
confers on assignee the right to be sub-
stituted as plaintilT or to prosecute ac-
tion in name of plaintiff without such
substitution. Cantrell v. Hewlett, 2 Bush
311.
§21. (1) Administrator refasiif to sm
heir or distributee may sue to recover
property due the intestate, but the per-
sonal representative is a necessary party.
McChord v. Fisher, 13 B. M. 194.
(2) Assifnee. Assignee should bring
suit to set aside fraudulent conveyance
made by a bankrupt. Anderson v. An-
derson, 80 Ky. 638 ; see further, Ky. Stat.,
sec. 84.
(3) County court may sue on bond ex
ecuted to county court by tax collector
without joining county as a party. Hardy
V. Logan Co., 15 R. 405.
(4) Executor who by will is directed to
lease a ferry can maintain in his own
name an action in equity to be quieted in
the enjoyment of the franchise. City of
Newport v. Taylor. 16 B. M. 700.
(5) Qoardian to sue in name of ward.
Guardian can not sue in his own name
for personal property of his ward unlaw-
fully detained. The suit must be in
name of Infant by the guardian. Ander-
son V. Watson, 3 Met. 510 ; nor can he
maintain in his own name action to eject
tenant of his ward after expiration of
lease ; suit must be in name of ward. Pow-
ell V. Gossom, 18 B. M. 179, 13 B. M. 194,
and see Wilson v. Unselt, 12 Bush 215;
but he may sue in his own name upon a
note taken by him for money of his ward.
McChord v. Fisher, 13 B. M. 194 ; and i«
other cases in which he might have
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TITLB ni]
PABTIBS TO ACTIONS OENBRALLY.
29
§ 22 rt4] Merested peraon nay he Joined as plaiatiffs. All persons having
an interest in the subject of an action and in obtaining the relief
demanded may be joined as plaintiffs, unless it is otherwise provided
in this Code.
§ 23 [M] Interested person may he made defendant Any person may be
made a defendant who claims an interest in the controversy adverse
to the plaintiff, or who is a necessary party to a complete determina-
tion of the question involved in the action.
§ 24 [8«] Persons united in interest must he made parties. Parties who are
united in interest must be joined as plaintiffs or defendants ; but if
the consent of one who should be joined as plaintiff can not be
maiDtained action before adoption of
Code. 3 Met. 510.
(6) Receiver can not bring an action in-
volving title to realty without Joining
with him the parties in interest. Cald-
well V. McWhorter, 84 Ky. 130.
(7) Sheriff to wimi estate is conmittod as
administrator de bonia non may sue upon
notes executed to the former represent-
ative, and which came into his hands as
assets. Maraman v. Trunnel, 3 Met. 146.
(9 Trastee ess sse at law for property to
which he holds the legal title, and in
equity where he is entitled to receive
and hold the property for the benefit of
the eestm que trust without making latter
party, but trustee under a mortgage
made to secure the payment of money
to others can not sue for a foreclosure
without making them parties. B. & L.
R. R. Co. V. Metcalfe, 4 Met. 199, and see
further Krieger v. Bissell, 80 Ky. 830.
where it is held that trustee for bond-
holders can maintain suit for sale of land
for their benefit without joining the ben-
eficiaries, the court making a distinction
between this case and the Metcalfe case.
(9) Where a will conferred upon a
trustee power to name his successor, the
eesiu* qtu trust was not a necessary party
to an action by the trustee to have a suc-
cessor appointed. Barclay v. Gk>odloe,
83 Ey. 493 ; but where a trustee desires
to be released and have a new trustee ap-
pointed, he must bring all the bene-
ficiaries before the court. Clay v. E2d-
wards, 84 Ky. 548.
(10) Trustee to whom property is con-
veyed for the separate use of a married
woman may sue for it in his own name.
McClanahan v. Beasley, 17 B. M. 111.
§23. (1) Defect of parties- nlsioiader.
Objection because of defect of parties
must be made by demurrer, sec. 92, or
by pleading, sec. 118, and if not so made
is waived, sees. 92, 118, 10 Bush 763 ; and
can not be made for first time in Court of
Appeals, 12 Bush 327, 80 Ky. 684. Mis-
Joinder must be taken advantage of by
motion to strike out, sec. 134, 1 Duv. 84 ;
18 B. M. 132 ; 1 Met. 123.
(2) Interested parties to ht made defesd*
aats. Action to enjoin collection of a
replevin bond executed in satisfaction of
a Judgment in favor of Commonwealth
was properly brought against county at-
torney. Commonwealth attorney, clerk
and sheriff. Bramlett v. McVey, 91 Ky.
151.
(3) Action to compel a county court
by mandamus to levy a tax must be
against the persons composing the court.
Montgomery Co. v. Menifee Co., 93 Ky. 33.
(4) Sureties os bond of ssardiaa given in
county court are not necessary parties to
an action on the bond of same guardian
given in circuit court in an action to sell
land of ward. Johnson v. Chandler, 15
B. M. 584.
§24. (1) Adniflistrator of debtor. In
an action to set aside a voluntary convey-
ance the administrator of the debtor is a
necessary party. Alexander v. Quigley,
2 Duv. 399.
(2) Assifoee. In an action by the stock-
holders of a corporation that has as-
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PARTIES TO ACTIONS GENERALLY.
[title III
obtained, he may be made a defendant, the reason being stated in
the petition.
signed, against the officers, the assignee
is a necessary party. Jones v. Johnson,
10 Bush 649.
(3) Auditor of State-^city coaadL Suit
may proceed against the successor in
office of the auditor by suggesting the
fact on the record. Lindsey v. Auditor,
3 Bush 231. As to actions against city
council, see Maddox v. Qraham, 2 Met.
66 ; 18 B. M. 9.
(4) Beneficiaries in trost deed. In an
action to recover the trust estate, where
the title is held as a naked trust with
only limited power to convey, the bene-
ficiaries are necessary parties. C. & L.
R. R. Co. V. Bowler, 9 Bush 468 ; see fur-
ther, Krieger v. Bissell, 80 Ky. 330.
(5) County. In action by taxpayers
to prevent money raised by taxation
from being illegally paid out, county is
proper party. Howard v. Dep. Bank,
80 Ky. 496.
(6) Court nay make parties. Any per-
son having adverse interest may be made
party by the court. 15 B. M. 205 ; and see
sec. 28 and notes thereto.
(7) Distributees and lieirs. Distributees
can not join in a suit against an admin-
istrator to recover balance due them on
settlement. Pelly v. Bowyer, 7 Bush
513 ; nor can one action be maintained
against guardian of four wards to recover
specific amounts due by each of them.
St. Joseph Society v. Wolpert, 80 Ky. 86.
(8) Heirs and distributees may be
permitted to be made parties, and to
prosecute or defend suit by or against
the administrator of their intestate if it
appears from affidavit that the adminis-
trator is not acting in good faith, or that
it will be advantageous to their interest.
Gibson v. Higdon, 15 B. M. 205; Lusk v.
Anderson, 1 Met. 426 ; 8 Bush 564.
(9) Heirs of vendor who has not con-
veyed land sold are necessary parties to
an action by his administrator to enforce
the vendor*8 lien ; or to an action to sub-
ject land by attachment to purchase-
money. Anderson v. Sutton, 2 Duv. 480;
79 Ky. 465.
(10) In action to subject land, holder
of legal title is necessary party. Ogle v.
Clough, 2 Duv. 145.
(11) In an action against an executor
for specific performance of a contract to
convey land, heirs of vendor are neces-
sary parties. Craig v. Johnson, 8 J. J.
M. 572.
(12) Holders of different land notes. The
holders of the other land notes are neces-
sary^ parties to an action by the holder of
one of them to enforce his lien. Graham
v. Chatoque Bank, 5 B. M. 45 ; 2 B. M. 29 ;
and see sees. 692-694, and notes thereto.
(13) Infants named in petition parties.
Infants whose names are in petition, but
not in caption, are ,made parties in an
action filed by their guardian to sell their
realty. Kevill v. Claxon, 12 Bush 558.
(14) Joint owners of land. Joint owners
of land may join in one action against
several persons who are in possession of
the land holding <i i ff erent parcels. Wool-
folk V. Ashley, 2 Met. 288. In Sale v.
Crutchfield, 8 Bush 636, a similar case,
it is said plaintiffs could have been re-
quired to elect which defendant they
would prosecute.
(15) In a suit by one joint owner
against the other to have the land
owned by them divided, an adverse
claimant of the land can not be made a
party on his petition. Mclntire v. Mc
Intlre, 82 Ky. 502.
(16) Married woman. In action by
married woman on an indemnifying
bond to recover damages for selling her
separate estate, her husband is not a
necessary or proper party. Bayse v.
BroMm, 78 Ky. 553. Married woman can
now sue in her own name, Ky. Stat., sec.
2128.
(17) Mortgagee— duty of. It is the duty
of a mortgagee in an action to enforc*^
his Hen to bring subsequent known mort-
gagees before the court. Macey v. Fen
wick, 4 B. M. 306. See further, sees.
692-694 and notes thereto.
(18) Scliool trustees. Trustees of each
school district in the county have a sep-
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PARTIES TO ACTIONS GENERALLY.
31
§ 25 [ST] NameriNu fiarties — one or iiore may soe or defend for all. If the
question involve -a common or general interest of many persons, or
if the parties be numerous and it is impracticable to bring all of
them before the court within a reasonable time, one or more may
sue or defend for the benefit of all.
§ 24 [St] Contracts, bills, checks — action on. Persons severally liable
upon the same contract, and parties to bills of exchange, to promis-
sory notes placed upon the footing of bills of exchange, or to com-
mon orders and checks, and sureties on the same or separate instru-
ments, may all or any of them, or the representatives of such as may
have died, be included in the same action at the plaintift''s option.
{Judgment against sees, 370, 873 ; when can not he rendered, sec. SO.)
arate cause of action against a default-
ing school commissioner and his sure-
ties. The trustees of all the districts
can not unite in one action, nor can the
subsequently appointed commissioner
sue. Hammond v. Crawford, 9 Bush 75 ;
and see further as to action by trustees,
Wright V. Baker, 94 Ky. 343 ; Lewis v.
Trustees, 5 R. 767.
(19) S«rcty. In proceeding by surety
to have judgment he has paid assigned
to him, the principal should have notice
of the application. Veach v. Wicker-
sham, 11 Bush 261.
§ 2S. (1) CoBstroctiofl of section. It is
only where a suit involves a common or
general interest of -many persons that one
or more may sue for all. It is not suffi-
cient that the matters presented by the
pleadings raise a question of law of com-
mon or general interest, nor is the action
of the lower court in permitting one or
more to sue for all conclusive. Oswald
v. Morris, 92 Ky. 48 ; and see Alexander
v. Gish, 10 R. 989 ; B. & L. R. R. v. Met-
calfe, 4 Met. 199.
(2) Where the parties interested are so
numerous as to vexatiously prolong the
suit and probably prevent a full hearing,
or it is impracticable to bring all of them
before the court in a reasonable time,
court may permit portion to sue for all.
Hendrick v. Money, 1 Bush 306; L. & O.
T. P. Co. v. Ballard, 2 Met. 165 ; Robin-
son V. Robinson, 11 Bush 174 ; 4 Met.
199 ; and where parties are numerous and
an action is brought by some for benefit
of all, unless others object it will be pre-
sumed they assent to its prosecution.
Flint V. Spurr, 17 B. M. 500.
(3) Church connittee appointed for
that purpose may maintain an action
for and concerning church property.
Shannon v. Frost, 3 B. M. 253; Hum-
phrey V. Burnside, 4 Bush 215 ; 8 B. M.
70; 7 B. M. 481 ; or action may be pros-
ecute or defended by trustees. Ky.
Stat., sec 321.
(4) Pftrt of heirs nay contest will for
benefit of all concerned when it is im-
practicable to bring all of them before
court. Randolph v. Lampkin, 90 Ky. 651.
(5) Practice. Trustee for bondholders
may maintain action in his own name for
their benefit, but in such case where the
beneficiaries are not parties the court
should retain control over the money col-
lected for the benefit of those entitled
thereto. B. & L. R. R. v. Metcalfe, 4
Met. 199.
I 26. (1) Coistmctlonof section. Plaint-
iff holding two or more separate obliga-
tions against same parties may sue upon
all of them in one action, or if the prin-
cipal in two or more obligations is same
person and the sureties in part the same,
he may in one action sue on both obliga-
tions, omitting as defendants those sure-
ties not on each paper. Com. v. Tate, 89
Ky. 608.
(2) Qnnrantors. Several signers of con-
tract of guaranty for the payment each
of $100 may be sued Jointly. Wilde v.
Haycraft, 2 Duv. 309.
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PARTIES TO ACTIONS GENERALLY.
[title III
§ 27 [stj Action af aliist peraoas Johitly boand on cootract If two or more
persons be jointly bound by contract, the action, thereon may be
brought against all or any of them, at the plaintiif 's option. If any
of the persons so bound be dead, the action may be brought against
any or all of the survivors with the representatives of all or any of
the decedents, or against the latter or any of them. K all the per-
sons so bound be dead, the action may be brought against the repre-
sentatives of all or of any of them. An action or judgment against
any one or more of several persons jointly bound shall not be a bar
to proceedings against the others. {Judgment against^ sees. 370^ 373 ;
when can not be rendered^ sec. SO ; variance between pleading and proofj
sec. 131 ; see further^ Ky. Stat, sec. 476.)
§ 28 [M. «••] New parties — court may require — practice. The court may de-
termine any controversy between parties before it, if it can do so
(3) Owaen of property oad city. The
city and owners of property fronting
streets improved may be sued in the same
action by the contractor. City of Lou.
V. Henderson, 5 Bush 515.
(4) Sub-lessee sod Asslsaee. A lessee
may sue jointly a sub-lessee and his as-
signee upon a contract of the sub-lessee
to pay him rent. Trabue v. McAdams,
8 Bush 74.
(5) Wsmuity. Where several join in
same deed, each warranting his undi-
vided interest, a suit against each for his
proportion of the amount due for breach
of warranty is proper. Evans v. San-
ders, 10 B. M. 291.
§ 27. (1) Jofait oMisors— separate actioo
against The common law rule has been
changed by the Code, and persons jointly
liable may be sued separately. Waits v.
McClure, 10 Bush 763 ; Gossom v. Bad-
gett, 6 Bush 97 ; 1 Duv. 30.
(2) Partaers auy be saed severally. One
or all of the partners may be sued by a
creditor of the firm, and judgment
against one or more will not be a bar to
proceeding against the others. Williams
v. Rogers, 14 Bush 776 ; Moore v. Estes
79 Ky. 282 ; overruling Nichols v. Bur-
ton, 5 Bush 320, in so far as it holds that
judgment against one partner amounts
to a satisfaction of the claim against
other partners. See further, notes to sees.
370, 373.
§28. (1) Appearaoce. Persons required
by the court to appear and assert their
claims if any to a fund in controversy
entered their appearance by filing special
and general demurrers. Underwood v.
Wood, 93 Ky. 177.
(2) BoadhoMer— oMadanas-HMUlies. In
proceeding by bondholder for mandamus
to compel city council to levy tax to pay
interest on bonds, neither the taxpayers,
railroad company that assigned bonds,
nor other bondholders are necessary par-
ties. Maddox v. Graham, 2 Met. 56.
(3) Coart aiay regain aew parties auide.
When record shows that money sought
to be recovered from a garnishee belongs
to one not a party, court should require
owner brought before It. Forepaugh v.
Appold. 17 B. M. 626.
(4) In aft action by a stockholder, where
the corporation was an indispensable
party, the court say: ** It was not proper
for the court to require the plaintiff to
bring the corporation before it. This
was plaintiff's duty, as in the absence of
the corporation no relief could be grant-
ed." Shawhan v. Zinn, 79 Ky. 300.
(5) The court should order all persons
interested in the controversy to be
brought before it, although they have
agreed not to sue until the happening of
a certain event. Lou. v. Henderson, 5
Bush 515. See Com. v. Frankfort, 13
Bush 1S5. And if, upon hearing the evi •
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TITLE III]
PARTIES TO ACTIONS GENERALLY.
83
without prejudice to others; if it can not do so, it must require such
other persons to be made parties, or must dismiss the action without
prejudice. {When court may dismiss actioUy sec. 371-2,)
§ 29 [41. s»T] Qiimaflt of property may be made party — practice. In an ac-
tion or proceeding for the recovery of real or personal property, or
for the subjection thereof to a demand of the plaintiff under an at-
tachment or other lien, any person claiming a right to, or interest in,
the property or its proceeds, may, before payment of the proceeds to
dence, the court should believe that a
party mentioned in the pleadings has
such an interest as to render him a nec-
essary party, he should be brought in.
Vanbuskirk v. Levy, 3 Met. 134.
(6) Court may determine controversy
without having all persons interested be-
fore it when it can be done without preju*
dice to their rights, or when their rights
can be saved. If this can not be done,
such other persons must be brought in.
Johnson v. Chandler, 15 B M. 584.
(7) When petition omits necessary par-
ties, the chancellor ought, before final
bearing, notify the plaintiff and give him
reasonable time to supply defect. Ogle
V. Clough, 2Dyv. 145.
(8) Defect of parties— fN>w oQecfed t<». An
objection to a pleading because of defect
of parties can be made by demurrer, sec.
92-4, or by pleading, sec. 118; and, if
not made in one of these ways, is waived,
sees. 92, 118 ; Waits v. McClure, 10 Bush
763, and can not be made for first time
in Court of Appeals. Hardee v. Hall,
12 Bush 327 ; Mc Alister v. Savings Bank,
80 Ky. 684 ; 10 Bush 23 ; 3 Bush 200.
(9) Misjoinder of parties— how ob|ected to.
Misjoinder of parties can only be taken
advantage of by motion to strike out.
Yeates v. Walker, 1 Duv. 84 ; Dean v.
English, 18 B. M. 132; 1 Met. 123.
(10) Uenholders to \tt made parties.
Vendor of land who has a lien on it
should be brought before the court in a
suit in which the land is attached by
creditor of the vendee. Mills v. Brown,
. 2 Met. 404. And where mortgaged prop-
erty is attached, the mortgagee should
be made a party. Martin v. M. & O. R.
R. Co., 7 Bush 116. See further, sec. 694
and notes thereto.
(3)
(11) Payee lot necessary party. Payee
of land note not necessary party to an
action by his assignee to enforce lien.
Leacock v. Hall, 13 B. M. 211.
§29. (1) Claimant— petition of. When
a claimant presents his petition to be
made a party, and is considered by the
court and parties as a party, and the ac-
tion proceeds as if he was, he will be so
Considered, although actually never made
a party. Schwein v. Sims, 2 Met. 200,
In Taylor v. Taylor, 3 Bush 118, it is
held that a claimant need not be made &
party to the original suit ; with its litiga-
tion he has nothing to do. The issue to
be tried as to him is the validity of the
claim he prefers. See also Miller v.
Desha, 3 Bush 212; Bank of Col. v.
Overstreet, 10 Bush 148.
(2) Claimant should be permitted to
file petition and assert claim at any time
before the disposition of the property
against which claim is asserted. Murphy
V. Cochran, 80 Ky. 239; Heaverin v.
Robinson, 15 R. 15 ; but the petition must
be verified and set forth the claimant's
cause of action. Lampton v. Lewis, 1 R.
66 ; and see Ritchie v. C. N., O. & T. R.
R., 14 R. 831, where the court holds that
unreasonable delay in asking to be made
party is a waiver of right.
(3) Creditors of a person who has as-
signed for benefit of creditors can contro-
vert attachments levied on his property
shortly before assignment. Bamberger
V. Halberg, 78 Ky. 376.
(4) A party whose claim is hostile to
that of both litigants can not come in as
plaintiff with a new and independent
cause of action with reference to property
in controversy and require both of orig-
inal parties to answer, although upon a
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84 PAKTIE8 TO CERTAIN ACTIONS. [tITLB III
the plMntiff, file, in the action, his verified petition, stating his claim
and controverting that of the plaintiff; whereupon the court may
order him to be made a defendant ; and upon that being done, his
petition shall be treated as his answer. But if he be a non-resident
he must give security for costs. {Claimant of attached property to give
information^ sec. 220; see alsoy sec. 30.)
CHAPTER U.
PARTIES TO CERTAIN ACTIONS.
§ 90. Claimant of property may be made party ~ practice.
§ 81. Preceding section applicable to officer sued.
§ 32. Substitution of plaintiff in writ for officer sued.
§ 83. Property distrained — action to recover.
§ H [41] Qainaat of property niy ke wuAt party — practice. Upon affidavit
of a defendant before answer, in an action upon contract, or for the
recovery of personal property, that a person who is not a party to
the action, without collusion with him, makes a claim to the subject
of the action, and that the affiant is ready to pay or dispose thereof
as the court may direct, the court may make an order for the safe-
keeping of the subject of the action, or for its payment or deposit in
court, or for its delivery to such person as the court may direct, and
an order requiring such alleged claimant to appear in a reasonable
time and maintain or relinquish his claim against the defendant, and,
in the meantime, stay the proceeding. If such alleged claimant, being
served with a copy of the order, fail to appear, the court may declare
him barred of all claim in respect to the subject of the action against
proper sUte of case the court might §31. (1) Affiiartt repaired— oblect of.
make him a defendant. Scott v. Wilson, The affidavit required by this section is
6 R. 308. designed to take the place of the more
(5) After final judgment it is too late formal pleading required before the
for a stranger to the action to file a peti- Code, and it must appear that there is no
tion to be made a party. Meadows v. collusion between the parties. Starling
Goff, 90 Ky. 540. v. Brown, 7 Bush 164.
(6) CliiMflt of attached property being (2) Moaey wroiffally oMaiaed-Aipoti-
made a party may, upon evidence that he tioa ot Money, although wrongfully ob-
is the owner, recover the property by tained, being produced to the court, is a
showing that the attachment is invalid fund in court, and when claimed by more
or that after levy it was dissolved by than one party the court should, where
operation of law. Bank v. Overstreet, 10 the pleadings justify it, submit the ques-
Bush 14S ; and see Peters v. Conway, 4 tion of ownership to a jury, and order
Bush 565. the money paid over according to the
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TITLE III] PARTIES TO CERTAIN ACTIONS. 35
the defendant therein. If he appear he shall be allowed to make
himself defendant in the action, in lieu of the original defendant,
who shall be discharged from all liability to either of the other
parties in respect to the subject of the action upon his compliance
with the order of the court for the payment, deposit, or delivery
thereof. (Provisions concerning deposit in courts sees. 303^ 304)
§ 31 C4S] Precediof sectioo applicable to officer sued. The provisions of
section thirty shall be applicable to an action against a sheriff or other
officer for the recovery of personal property taken by him under ex-
ecution or distress warrant, or for the proceeds of such property so
taken and sold by him. And the defendant in such action shall be
entitled to the benefit of those provisions against the party in whose
favor the execution or distress warrant issued, upon exhibiting to
the court the process under which he acted, with his affidavit that
the property, for the recovery of which, or its proceeds, the action is
brought, was taken under such process.
§ 32 [M] Substitutloo of pliiotiff io writ for officer sued. In an action
against a sheriff or other officer for the recovery of property taken
under an execution or distress warrant the court may, upon the
application of the defendant and of the party in whose favor the
execution or distress warrant is issued, permit the latter to be sub-
stituted as the defendant, security for the costs being given.
§ 33 [4ij Property distraloed — actloo to recover. An action to recover the
possession of specific personal property taken under a distress, war-
rant, if it be brought by the tenant, or his assignee or under-tenant,
may be against the party who sued out the warrant ; and the prop-
erty claimed in such action may, under the order for its delivery, be
taken from the officer who seized it if he ha^^e no other claim to hold
it than that derived from the warrant. The indorsement of a levy
on the property, made upon the warrant by the officer holding it,
shall be a sufficient taking of the property to sustain the action
against the party who sued out 'the warrant. {How order of delivery
obtainedy sec. 181.)
verdict. Davis v. Watlfins, 2 Busli 224. fendant be substituted for another, and
See 3 J. J. M. 64 ; 5 J. J. M. 235 ; 7 Dana security for costs not given at the time,
411, for decisions upon questions of in- it will be considered waived, unless party
terpleader before the Code. was taken by surprise. Qunn v. Gude-
f $L CMtt-secority for. If one de- hus, 15 B. M. 447.
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ACTIONS CONCERNING MARRIED WOMEN. [tITLE III
CHAPTER III.
ACTIONS CONCERNING MARRIED WOMEN.
§ 34. Married women — actions by and against.
1. When may sue and be sued.
2. Husband to be joined — when.
3. Defense of actions by.
4. Desertion by husband.
5. Marriage — eflPect of.
6. Practice if of unsound mind or imprisoned.
§ 34 [49to6s] Married womeo — actioos by lod ifiiost. 1. In actions be-
tween husband and wife ; in actions concerning her separate prop-
erty; and, in actions concerning her general property [and in actions
for the personal suffering of or injury to her person or character] in
which he refuses to unite, she may sue or be sued alone. ( Words in
brackets inserted by act of 1892.)
2. In all other actions by or against a wife she and her husband
must join or be joined as plaintiffs or defendants.
3. She may defend an action against her and her husband for
herself, and for him also if he fail to defend.
4. If a husband desert his wife, she may bring or defend for him
any action which he might bring or defend, and shall have the
powers and rights with reference thereto which he would have had
but for such desertion.
5. K a female party to an action marry, her husband may be
made a party by a motion, causing the fact to be stated upon the
record ; and the action shall not be delayed by reason of the mar-
riage.
§34. (1) Coistroctloi of sectloi. The 262, and see Ky. Stat., sec. 2128, confer-
common law rule is in force except in ring on wife power to sue and be sued
the cases mentioned in this section, and aione in all cases.
wife can not sue alone in any case not (3) Jndsmeot agalist haslNuid for debt
embraced by it. A next friend can not of wife made before marriage, see Clark
prosecute a suit in the name of the infant v. Miller, 88 Ky. 108 ; Medley v. Tandy,
wife against the wishes of her infant hus- 85 Ky. 566 ; Fultz v. Fox, 9 B. M. 499 ;
band. Anderson v. Anderson, 11 Bush 327. Beaumont v. Miller, 1 Met. 68; Agnew v.
(2) The only object of this section Williams, 1 Bush 4; 6 Bush 34 ; 7 Bush
(49, same as sec. 34-1 of this Code), is to 214. For tort of wife, see Curd v. Dodd,
dispense with the necessity for a next 6 Bush 681 and see Ky. Stat., sec. 2130,
friend where the action concerns the fixing liability of husband,
separate property of the wife, or is be- (4) Marriage— effect of. An infant
tween herself and husband. It confers female having married an infant pending
no new right. Matson v. Matson, 4 Met. the action, the court may make him a
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PERSONS UNDER DISABILITY.
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TITLE ni]
6. But if a wife be of unsound mind, or imprisoned, the actions
mentioned in subsections one, three and four of this section must
be prosecuted or defended by her committee or curator, if she
have one ; and if she have none, must be prosecuted by her next
friend, or defended by her guardian ad litem. {As to service of
noticty sec. 6Z9 ; see Ky. Stat., sec. 2128^ giving married women right
to sue and be sued.)
CHAPTER IV.
PERSONS UNDER DISABILITY— PROVISION CONCERNING.
§ 35. Action — by whom brought.
§ 36. Defense by — ^judgment — guardian ad litem,
§ 37. Next friend, qualifications of ; Liability for costs.
§ 38. Guardian ad litem — appointment — duties— compensation.
§ Z& [At. »•] Actioo — by whom brought Excepting married women —
1. The action of a person who is under disability must be
brought by his guardian, curator, or committee, if he have one
residing in this State, unless it be against his guardian, curator, or
committee ; or unless said guardian, curator, or committee refuse
to sue, in which case he must be made a defendant.
coplaintiff and allow action to proceed
in name of her next friend as next friend
of both. Hopkins v. Virgin, 11 Bush
6T7. The mere suggestion of the mar-
riage of female parties is all that is nec-
essary to enable the court to make the
husbands parties. Dickinson v. Trout,
8 Bush 441.
(5) Personal Jadgneiit ag^nst married
womafl forbiddefl. It was held in Sweeney
V. Smith, 15 B. M. 325 ; Agnew v. Will-
iams, 1 Bush 4 ; Adams v. Jett, 6 Bush
585 ; 6 Bush 659, and other cases, that a
personal judgment could not be taken
against a married woman ; but see now
Ky. Stat., sec. 2128, permitting married
woman to be sued as a single woman.
(6) Right of wife to soe Imsbaad. It was
held in Kalfus v. Kalf us, 92 Ky. 542, that
a wife could not maintain an action at
law against her husband ; and in Moore
V. Settle, 82 Ky. 187, that she could not
maintain in her own name an action to
recover money won from her husband at
gaming. Can she now maintain these
actions ? See Ky. Stat., sec. 2128,
I 35. (1) Action in oame of iafant Ac-
tions should be prosecuted in the name
of the infant by the guardian or next
friend. Wilson v. Unselt, 12 Bush 215;
Anderson v. Watson, 3 Met. 509 ; but a
guardian may sue in his own name in
some cases, as upon a note taken payable
to himself. McChord v. Fisher, 13 B. M.
194; 3 Met. 510; and see sec. 21.
(2) Qnardiaa of iafaat must prosecute
and defend actions for him, unless he de-
clines, and in such case the infant may
appear by his next friend, making guard-
ian defendant. Miller v. Cabell, 81 Ky.
178; McMakin v. Straiten, 82 Ky. 226;
and the court has no power except for
good cause to displace the guardian and
permit next friend or guardian ad litem
to represent infant. Walker v. Smyser,
80 Ky. 620; 81 Ky. 178.
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38
PERSONS UNDER DISABILITY.
[title in
2. The action of an adult, who is imprisoned in or out of this
State, and who has no curator residing herein, or liis action against
his curator, may be brought by him, or, with his consent, by his
next friend. ^
3. The action of an infant, or of a person of unsound mind^
who resides in this State, and who has no guardian, curator, or
committee residing herein, or whose guardian, curator, or commit-
tee refuses to sue, or his action against his guardian, curator, or
committee, may be brought by his next friend.
4. The action of an infant, or of a person of unsound mind,
who resides in a foreign country, and who has a guardian, curator,
or committee residing therein, may be brought by such guardian,
curator, or committee, or by his next friend.
(3) Qnardiaii and next friend. The fact
that an infant sues both by his guardian
and next friend may be grounds for
special demurrer, but is not a reversible
error unless it appear that the rights of
the infant have been prejudiced. Hen-
ning V. Barringer, 10 R. 674.
(4) InfMts— actions by. Agreement of
infant plaintiff to dismiss action must be
pleaded, and can not be made available by
motion. Hopkins v. Virgin, 11 Bush 677.
(5) Poor infant and insolvent next
friend will be permitted to prosecute an
action without securing costs, as pro-
vided in sec. 619. Westerfleld v. Wilson,
12 Bush 125 ; and see sec. 37-2.
(6) Infant seeking to avoid contract
on ground of fraud can not avail himself
of his infancy unless he pleads it. Bryant
V. Pottinger, 6 Bush 473.
(7) Next friend of infant female can
not prosecute aft action in her name
against wishes of her infant husband.
Anderson v. Anderson, 11 Bush 327 ; and
where an infant plaintiff intermarries
with an infant husband It is proper to
enter him as coplaintiff and allow action
to proceed in name of her next friend as
next friend of both. Hopkins v. Virgin,
11 Bush 677.
(8) Next friend can not commute debts
or judgments due infant. Forbes v.
Brents, 1 J. J. M. 441 ; and next friend
may be changed by leave of court. Burks
V. Shain, 2 Bibb 341.
(9) Non-resident fnardian has no power
to sue for the infant or otherwise act aa
guardian in this State, unless authorized
by a county court of this State, as pro-
vided by sec. 2041 Ky. Stat, (which is
copy of sec. 16, art. 2, chap. 48, Gen.
Stat. ). Watts V. Wilson, 93 Ky. 495 ; and
see Williams v. Duncan, 92 Ky. 125 ;
Shelby v. Harrison, 84 Ky. 144.
(10) " Person of nnsoand mind," as used
in this section, embraces not only luna-
tics but persons whose minds have be-
come so impaired by disease or other
cause as to bo unable to take care of
their own interests. Howard v. Howard,
87 Ky. 616.
(11) If a person alleged to be of un-
sound mind appears and protests that he
is not incapable of managing his estate
and that suit is prosecuted without his
authority, the chancellor should impanel
a jury to pass upon the question of his-
capacity. Howard v. Howard, 87 Ky.
616.
(12) The trustee of a lunatic having-
sold his land and appropriated the pro-
ceeds, a creditor of the lunatic sued his
sureties to recover the money. A suc-
cessor of the trustee, having subsequently
brought suit to have sale set aside as
fraudulent, it was held that he and not
creditor had right to choose remedy and
maintain action. Trunk v. Eastern
Asylum, 6 R. 521.
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TITLE m
PERSONS UNDER DISABILITY.
§ 36 c»»,t«.«8] Defense by — \ndgmtnt — furdiio ad Iftem. Excepting mar-
ried women, if a defendant, who is under disability and who is sum-
moned in this State, have a defense —
1. That of an infant or person of unsound mind must be made
by his guardian or committee, or by a guardian ad litem.
2. That of an adult prisoner in this or any other State must be
made by his curator or by an attorney employed by him, or by a
guardian ad litem.
3. No judgment shall be rendered against an infant— other than
a feme covert — nor against a person of unsound mind, who is sum-
moned in this State, until the regular guardian, or committee, or
guardian ad litem of such defendant shall have made defense, or
have filed a report, stating that, after a careful examination of the
case, he is unable to make defense. His report, that he can not
%». (1) Clerical niaprisioa. Where
no defense Is made for infants or report
of guardian ad Uiem filed, the Judgment
against them, as provided in sec. 517, is a
clerical misprision, and the error can not
be considered on appeal until motion is
made in lower court to correct it as di-
rected in sec. 516. Morrison v. Beoic-
man, 16 R. 294.
(2) Qaardiaa ad Hteai — daty of coart.
Action should not be dismissed because
plaintiff neglects to have a guardian ad
litem appointed for the infant defendants.
It is the duty of the court to appoint one
whether the plaintiff does or does not
apply, and where an action is submitted
before appointment of guardian ad litem
court should set aside submission and
appoint. C. & L. R. R. Co. v. Bowler, 9
Bush 468.
(3) Guardian ad litem should be ap-
pointed in bastardy proceeding. Chand-
ler V. Com., 4 Met. 66.
(4) Answer of guardian ad litem suffi-
ciently complies with Code, although
statement ** that after careful examina-
tion of case he is unable to make de-
fense" is not found in the body of
answer, but in jurat thereto. Vissman
V. Bryant, 14 R. 874.
(5) Oaardiaa sboald coadact defease for
his wards although a guardian ad litem
may have been appointed, unless there is
some valid reason for denying him the
right. Walker v. Smyser, 80 Ky. 620;
Miller v. Cabell, 81 Ky. 178; but the
court may appoint a guardian ad litem
to defend, although there be a guardian.
McMakin v. Stratton, 82 Ky. 226.
(6) lafaat— appeal by— bar. Infant after
becoming twenty-one prosecuted an ap-
peal to reverse judgment rendered during
infancy; the judgment was affirmed.
As to any matter which was or could
have been heard on the appeal, the judg-
ment of affirmance is a bar to petition
filed to vacate judgment appealed from.
Speak V. Mattingly, 4 Bush 310, and see
Maddox v. Williams, 87 Ky. 147, and
notes sec. 391.
(7) lafaata— Jadgaieat asaiatt before an-
swer filed by guardian or guardian ad
litem is error. Curd v. Williams, 13 R.
855 ; Allsmiller v. Freutchenicht, 86
Ky. 198 ; but if judgment is rendered after
infant arrives at age it will be valid, al-
though no guardian or guardian ad litem
appeared for him during infancy. Coffey
V. Proctf>r Coal Co., 14 R. 415.
(8) In Keller v. Wilson, 90 Ky. 350, it
is held that a judgment against infants
who were not represented by either
statutory guardian or guardian ad litem
was only erroneous, not void ; in Morrison
V. Beckham, 16 R. 294, such judgment is
held to be misprision.
(9) It was held that where an infant
was before the court by actual process,
prior to amendment to sec. 52, a judg-
ment for the sale of his land without
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40
PERSONS UNDBR DISABILITY.
[title III
make a defense, must be filed on or before the day for making
defense, unless, for cause shown, the court extend the time ; and
failure to file such report, as required hereby, or by the court,
shall be punished as a contempt. ( When defense must be Jiledj sec.
102; judgment before JUedy vacated^ sees. 517, 519 \ tim£ allowed infant
to vacate, sec, 391.)
§ 37 [M. ••] Next friend, qoalificatioiis of — liability for costs. 1. Ko person
shall sue as next friend unless he reside in this State and be free
from disability, nor unless he file his own affidavit showing his right
to sue as next friend according to the provisions of this chapter.
appointment of guardian ad litem was
voidable, not void. Scliuk v. StoH, 6 R.
364.
(10) lofaits owfliflg distinct claims cai not
be sued jolotly or be united as defendants
in an action against them and a person
who is guardian for all of them. The
cause of action against each being sepa-
rate and distinct, they must be sued
separately. St. Joseph O. S. v. Wolpert,
80 Ky. 86.
(11) Infant plaintiffs. Under this Code
are infant plaintiffs placed on same foot-
ing as adults ? See sec. 116-2, sec. 126-1-2,
sees. 391, 574, sec. 743-1, sec. 745, sec.
756-2. Under Ck)de of 1854 it was held
that judgment on counterclaim against
infant plaintiff before defense by guard-
ian ad litem was fatally erroneous. Smith
V. Ferguson, 3 Met. 423.
(12) Infant who Ims arrived at age may
answer for himself, although hi* guard-
ian ad litem had answered for him while
an infant. Mitchell v. Berry, 1 Met.
602 ; and an infant whose action is prose-
cuted by a next friend may, upon arriving
at age, be substituted as plaintiff by a
suggestion on the record. Clements v.
Ramsey, 9 R. 172.
(13) Non-resident infant Judgment
against infant defendant constructively
summoned without appointment of
guardian ad litem, and before defense, is
not void. Simmons v. McKay, 5 Bush 25.
It is not necessary to have guardian ad
litem appointed for non-resident infant.
Sec. 36-3. The appointment and answer
of corresponding attorney is all that is
required. Sec. 59-7.
(14) Practice. Consent order that in-
fants be made parties does not dispense
with service of process upon them, or
authorize Judgment against them with-
out defense by a guardian. Pond v.
Doneghy, 18 B. M. 558.
(15) Presnaiptiott. Where the record is
lost, but it appeared that an answer was
filed for infants who were very young, the
presumption is that it was filed by their
guardian. Johnson v. McDyer, 11 R. 28.
§37. (1) Affidavit ~ next friend. It is
too late after answer filed to make motion
to dismiss for want of affidavit, and an
affidavit tendered when motion is made
should be received. Staton v. Bryant,
5 R. 426.
(2) Next friend. An action instituted
by the next friend was prosecuted
to judgment by him after the arrival
of infant at age and the affidavit
required by this section was not made.
It was held too late after judgment to
make objection. Bramel v. Cunningham,
3 R. 612. Objection that next friend is
a non-resident can not be made by general
demurrer. Stevenson v. Stevenson, 7 R.
680; the proper practice is to raise ques-
tion by rule or motion. Hall v. Snipes,
10 R. 435.
(3) Poor Infant— costs. Poor infant and
insolvent next friend will be permitted
to prosecute an action without securing
costs. Westerfleld v. Wilson, 12 Bush 125;
an infant who is unable to procure a next
friend may institute an action in his own
name and the court may appoint a next
friend for him and allow him to sue/orma
pauperis. Richardson v. Hunt, 5 R. 931.
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TITLE in] PERSONS UNDER DISABILITY. 41
2 [M.Mj A guardian, curator, committee, or next friend who brings
or prosecutes an action for a person who rs under disability is liable
for the costs which accrue during his conduct of the action, unless
he be allowed to sue in forma pauperiSy by an order of the court,
or by an order of the judge thereof during vacation. {Meaning of
^^ disability y'' sec. 732^1; when required to secure costs, sec. 619.)
§ 38. Qairdiaii ad litem — appofotnieiit— dnties^-compeBsatkm. 1. No ap-
pointment of a guardian ad litem shall be made until the defendant
is summoned, or until a person is summoned for him, as is authorized
by section fifty-two, nor until an affidavit of the plaintiff, or of his
attorney, be filed in court, or with the clerk, or presented to the
Judge during vacation, showing that the defendant has no guardian,
curator, nor committee, residing in this State, known to the affiant.
2 r»«. •©.•!] A guardian ad teem must be a regular, practicing attor-
ney of the court ; and may be appointed by the court, or the judge
thereof, whether a guardian, curator, or committee appear for the
defendant or not; or by the clerk of the court, during vacation, if
the affidavit mentioned in subsection one of this section be tiled.
The guardian ad litem may be appointed upon the motion of the
plaintiff or of any friend of the defendant ; but neither the plaint-
iff nor his attorney shall be appointed, nor be permitted to sug-
gest the name of the proposed guardian ad litem; and the court or
judge may change the guardian so appointed whenever the interest
of the infant may appear to require such change.
3. It shall be the duty of the guardian ad litem to attend prop-
erly to the preparation of the case ; and in an ordinary action he
may cause as many witnesses to be subpoenaed as he may think
1 38. (1) Affidavit — appointmeit It was the plaintiff or his attorney, whether the
held in McMakin v. Stratton, 82 Ky. 226, plaintiff is in or out of the county. James
not to be a reversible error in that case v. Cox, 88 Ky. 270; see further as to suf-
to appoint a guardian ad litem although ficiency of afQdavit objected to because
no affidavit was filed. certain words were inserted and others
(2) Clerk to appoint when affidavit re- omitted, Donaldson v. Stone, 11 R. 27.
quired by sec. 52 is filed, and if petition (5) Fees. When the infant upon a
states required facts and is verified, affi- counter-claim or set-off recovers judgment
davit is not necessary. Tyler v. Jewell, against the plaintiff, it is proper to require
10 R. 887. the plaintiff to pay feeof guardian arf^i^ew,
(3) The appointment of a guardian ad but he should receive credit on judgment
/item before the infants are summoned is by it. Huhlein v. Huhlein, 87 Ky. 247;
void, and does not bring them before the and see further, Williamson v. William-
court. Allsmiller v. Freuchtenicht, 80 son, 1 Met. 303.
Ky. 198 ; Lawrence v. Connor, 12 R. 86; (6) Qnardian ad litem may appeal in the
Beverly v. Perkins, 1 Duv. 251. name of and for the benefit of the in-
(4) The affidavit for appointment of fants Reed v. Louisville Bridge Co.,
guardian ad litem may be made by either 8 Bush 09.
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42 MANNER OF COMMENCING AN ACTION. [tITLB IV
proper, subject to the control of the court; and in an equitable
action he may take depositions, not, however, exceeding three,
without leave of the court.
4 [M] The court shall allow to the guardian ad litem a reasonable
fee for his services, to be paid by the plaintiff and taxed in the
costs. The affidavit of such guardian, or of another person, or
other competent evidence, is admissible to prove the services ren-
dered, but not to prove their value. The court must decide con-
cerning such value, without reference to the opinions of parties or
other witnesses. {Form of affidavit pa^e 6£7 ; when attorney can
makej sec. 650- , ; not required to pay for depositions^ sec. 583.)
TITLE IV.
COMMENCEMENT OF A CIVIL 'ACTION.
Chapter I. Manner or commencing an action, 39.
II. Service of summons, 47.
1. Actual service, 47.
2. Constructive service, 57.
CHAPTER i.
MANNER OF COMMENCING AN ACTION.
§ 39. Action — how commenced.
§ 40. Summons — form and requisites of.
g 41. Summons to any countj^— costs.
§ 42. Copy for each defendant.
§ 43. Time fixed in for return.
§ 44. Return day of summons.
§ 45. Delivery to officer.
§ 46. Sheriff to attend clerk's office daily.
§ 39 [••] Action — liow comaenced. An action is commenoed by filing,
in the office of the clerk of the proper court, a petition stating the
plaintift^'s cause of action ; or, in cases wherein written pleadings are
§39. (1) Dvty of clerk to issue sum- (2) Lost sanBons. How supplied, see
mons, and when plaintiff has filed his Ky. Stat., sec. 3994.
petition he has the right to rely on the (3) Sobboos — cooiBeiceneat of actloa.
clerk issuing summons in proper manner. Issuing the summons is commencement
and can not be prejudiced by failure of of action ; filing petition without causing
clerk to do his duty in this respect. L. summons to issue on it does not stop
& N. R. R. V. Smith, 87 Ky. 501. statute of limitation, or create Us pendens.
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TITLE IV] MANNER OF COMMENCING AN ACTION. 43
not required, by filing in such court the account, or the written con-
tract, or a short written statement of the facts on which the action
18 founded; and, in either case, by causing a summons to be issued,
or a warning order to be made, thereon. {Glerk must indorse time of
filing J sec. 669; when written pleadings not required^ sec. 706 ; when
summons may issue on holiday ^ sec. 666; when and how warning order
made^ sees. 67-^8.)
§ 40 [••] Stmrnons — forniod requisites of. The summons shall command
the officer to whom it is directed to summon the defendant named
therein to answer the petition filed by the plaintiflT, giving his name,
at a time stated therein, under the penalty of the petition being taken
for confessed, or of the defendant being proceeded against for con-
tempt of court on his failure to do so. The summons shall be dated
the day it is issued and be signed by the clerk. (Form o/, page 6^4 ;
to whom directed^ sec. 667.)
§ 41 [ST] Summoos to toy conoty — costs. A summons shall be issued at
any time, to any county, against any defendant, at the plaintiff's
request. But a summons not served shall not be taxed in the costs
unless otherv^nse ordered by the court.
§ 42 [••] Copy for eacli defeodaot. With every summons the clerk shall
issue a copy thereof for each defendant named therein, unless other-
wise ordered by the plaintiff.
§ 43 [•»] Tine fixed io for returo. The time fixed in the summons for
the defendant to answer shall be the day the summons is returnable.
[When answer must be fled, sec. 102.)
Ky. Stat., sec. 2524; Butts v. Turner, 5 testation of the officer who issues writ
Bush 435; Trabue v. Sayre, 1 Bush 129; that gives validity to it; and in conflict
Cecil V. Sowards, 10 Bush 96 ; 83 Ky. between words in body of writ over offl-
149. cial signature and unattested indorse-
(4) Waiver of service— filing answer is. ment on back, attested words must pre-
ElliottCk). V. Kitchen, 14 Bush 289; so is vail. Peters v. Conway, 4 Bush 565;
prosecuting appeal. Thompson v. Moore, and see Northern Bank v. Hunt, 93 Ky.
91 Ky. 80; or filing exceptions to com- 67.
missioners* report. Newman v. Moore, (3) Form and reqaisites. Process which
94 Ky. 147; or filing demurrer. Under- does not run in name of ** Commonwealth
wood v. Wood, 98 Ky. 177. of Kentucky " is void ; words and dates
1 41. (1) Aneoded petition. Summons should not be abbreviated. Yeager v.
must issue on amended petition present- Groves, 78 Ky. 278 ; and summons should
ing new and distinct cause of action. namedefendacts to be summoned, a proc-
Rutlege V. Vanmeter, 8 Bush 354; 10 ess commanding an officer to summons
Bush 544 ; Dameron v. Osenton, 6 R. 218 ; the unknown heirs of a certain person is
Ky. Eclectic Institute v. Gaines, 8 R. 257 ; invalid. Kellar v. Stanley, 86 Ky. 240 ;
see further, notes to sec. 132, and 0. S. R. sec. 44, fixing time when summons is re-
R. Co. V. Hogan, 7 R. 820. turnable, is only directory. L. &. N. R.
(2) Attettatloo of officer. It is the at- Co. v. Smith, 87 Ky. 501.
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44 SERVICE OP SUMMONS. [tITLB IV
§ 44 rT«] Retttrn day of sommoas. The summons shall be returnable to
the first day of the next term of the court, which does not begin
within ten days from the date of the summons.
§ 45 [Ti] Delivery to officer. The summons and copies shall be deliv-
ered to the sheriff or other officer authorized to execute it. {Sheriff
to indorse time of reception^ sec. 674. ; officers authorized to execute^ sec. 667.)
§ 46 [Ts] Slieriff to itteod derlc's office diUy. It shall be the duty of the
sheriff, or of one of his deputies, to attend at the clerk's office daily
— Sundays excepted — ^to receive any process that may be issued, and
the clerk shall deliver to him any process remaining in his office.
CHAPTER II.
SERVICE OF SUMMONS.
Article 1. Actual service, 47.
2. conbtructivb service, 57.
ARTICLE 1.
ACTUAL SERVICE.
§ 47. Summons— who may serve.
§ 48. Manner of serving.
§ 49. Return — facts to be stated in— penalt}-.
§ 50. Acicnowledgment of service.
§ 51. County — city— corporation — carrier.
§ 52. Infant under fourteen.
§ 53. Person of unsound mind.
S 54. Prisoner — service on.
§ 55. Shakers — service on.
§ 50. Non-residents — except infants,
§ 47 CT»] Summons — ^who may serve. The summons may be served —
1. By the officer to whom it is directed, or any officer to whom
(4) A summons against *'Thos. H. §45. Officers who may execate. Plaintiff
Hunt 4& Co." is not void, when Thos. H. has a right to have summons directed
Hunt is a defendant in the petition. to and executed by any officer author-
Northern Bank v. Hunt, 93 Ky. 67. ized to execute, at his option. Boaz v.
(5) Order of attachment indorsed on Nail, 2 Met. 245 ; and summons directed
back of summons is valid. 93 Ky. 67. to sheriff or other officer may be executed
§44. (1; Coostmction of section and by constable or any officer to whom it
holding it to be directory and ^ot man- might have been directed. Long v.
datory. L. & N. R. Co. v. Smith, 87 Ky. Gaines, 4 Bush 353 ; and see sees. 47, 667.
501. §47. (1) Special bailiff. Parol author-
(2) Sunday to be coaoted in determining ity is not sufficient to authorize a special
whether or not process executed in time. bailiff to execute a summons, and written
Ormsby v. Louisville. 79 Ky. 197. authority after service will not render
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TITLE IV] SERVICE OF SUMMONS. 45
it might have been directed, and his return thereon shall be proof
of the time and manner of service.
2. By any person appointed by the officer to whom it is directed,
by an indorsement on the summons ; and the affidavit of such per-
son indorsed thereon shall be proof of the time and manner of
service. {What officers may serve, see. 667 ; court may appoint person,
sec. 668 ; amendment of return, sec. 49.)
§ 48 [T«j Maimer of serviof • Unless otherwise provided, the summons
shall be served by delivering, or if acceptance be refused, by ottering
to deliver a copy of it to the person to be summoned. ( When may
be served on holiday, sec. 665.)
the service valid. Thompson v. Moore,
91 Ky. SO; and see sec. 667 and notes
thereto.
(2) There must be a substantially
strict compliance with the statute in re-
turns made by a special bailiff, the pre-
sumptions in favor of the return of an
officer do not exist, the affidavit of the
special bailiff must be signed by hrm or
it will not be sufficient. Simms v. Simms,
88 Ky. 643 ; but return showing how and
when summons was executed is sufficient.
Barbour v. Newkirk, 83 Ky. 529.
(3) Special bailiff can not execute
summons out of the county in which he
residesand is appointed. Lillard v. Bran-
uin, 01 Ky. 511. See further as to special
bailiffs, sec. 4562 Ky. Stat., in substance
the sa.me as this section.
(4) When a special bailiff returns a
summons **not found,'* new authority in
writiag is necessary to enable him to ex-
ecute an alias summons. 01 Ky. 80.
(5) Deputy sheriff can appoint special
bailiff to execute summons, but appoint-
ment should be in name of principal by
deputy. Norman v. Norman, 6 Bush
4d5.
1 48. (1) False retam. Where a sum-
mons has been returned as executed,
when in fact it was not, and judgment
rendered thereon, the return is conclusive,
if the plaintiff acted in good faith, and
can not be impeached in proceeding to
set aside judgment. Thomas v. Ireland,
88 Ky. 581 ; Everett v. Ragan, 1 R. 421 ;
but if false return has been made by
mistake of officer and default judgment
rendered thereon, the return may be
questioned in proceeding to ertjoin col-
lection of judgment. Bramlett v. McVey ,
91 Ky. 151 ; and see Board v. Helm, 2
Met. 500.
(2) Fraad— service procured by void. Serv-
ice of process upon defendant who has
been brought within the reach of the
court by the fraudulent representations
of the plaintiff confers no jurisdiction to
render judgment. Wood v. Wood, 78
Ky. 624.
(3) lfloiiilay->Siiiid«y. It was held un-
der Ck)de of 1854 that process executed
on Sunday was a nullity ; that the holi-
day mentioned in that Code did not
mean Sunday. Moore v. Hagan, 2 Duv.
437. This <:k)de (sec. 665) uses the word
** Sunday " as well as holiday.
(4) "Not found." Return of not to be
made until officer has visited residence
of defendant. Ky. Stat., sec. 4566.
(5) Officers who can execute. Summons
directed to a sheriff or constable may be
executed by any officer to whom it might
have been directed. Long v. Gains, 4
Bush 353 ; Boaz v. Nail, 2eMet. 245, and
sees. 47, 667.
(6) Return of officer. Summons re-
turned ** executed " with no signature to
the return is not sufficient evidence of
service without other proof. Long v.
Montgomery, 6 Bush 394.
(7) Return of ** executed on J. H. C.
by reading the within,'* is not sufficient
return on summons. When the officer
returns summons executed, the presump-
tion will be, it is done according to law ;
but when the return shows how it was
executed, that presumption can not arise.
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46
SERVICE OF SUMMONS.
[jITLE IV
§ 4f tT»j Retwn — imeikifiieiit of — penalty. The return or affidavit nieu-
tioiied in section forty-seven must state when and how the sum-
mons was served, and, if erroneous, may, with leave of the court, be
amended according to the truth. An officer who makes such erro-
neous return may be fined by the court not exceeding ten dollars,
and shall be liable to the person aggrieved for any injury caused by
the error. {Clerk to enttr return on docket — effect of^ sec. 670.)
§ 50 [Ti] Acknowfedfnient of service. Service may be acknowledged by
the person to be summoned by an indorsement upon the summons,
signed and dated by him, and attested by a witness. The affidavit
of the witness shall be proof of the service.
Case V. Colston, 1 Met. 145 ; Webber v.
Webber, 1 Met. 18 ; 1 Duv. 251.
(8) Summons returned "executed by
delivering a true copy to John Long,"
will be presumed to have been executed
on the defendant John Long. Long v.
Gains, 4 Bush 353. And if summons is
lost, this court will rather presume that
it was executed than that judgment was
rendered without service of process.
Jones V. Edwards, 78 Ky. 6 ; 6 R. 523.
(9) The presumption in favor of a re-
turn made by an ofBcer does not arise
when the return is made by one not an
ofBcer — a special bailiff. Lloyd v. Mc-
Cauley, 14 B. M. 535. See also 83 Ky.
529, and notes to sec. 47.
(10) Mistake in date of execution— pre-
sumption. King V. Spearman, 3 B. M. 289.
(11) Officer's return is not conclusive
before judgment, and defendant may
contradict it and show such defect as
will prevent court from taking jurisdic-
tion. Motions or answer filed to show
want of jurisdiction will not enter ap-
pearance. Barbour v. Newkirk, 83 Ky.
529 ; C. & O. R. Co. v. Heath, 87 Ky.
651.
(12) Where the petition stated who
the mother of infant defendants was, and
that she was their custodian, the failure
of officer to state in return that he exe-
cuted summons on mother and custodian
does not invalidate judgment. Bailey v.
Fanning, 12 R. 644.
(13) Reading summons to defendant
is not sufficient service. The officer must
deliver or offer to deliver copy. Case v.
Colston, 1 Met. 145.
(14) Sheriff ^rty—serrke by ToM. Serv-
ice of summons by sheriff in a suit in
which he is a party is a nullity. Knott
v. Jarboe, 1 Met. 504.
(15) SpccW biJIiff— appoiatneitof. Dep-
uty sheriff can appoint special bailiff to
execute summons, as provided in sub-
sec. 2 of section 47. In such case the
deputy should make the appointment in
name of his principal, as well as his own
name. Norman v. Norman, 6 Bush
495.
§ 49. (1) Anea^neot of retara. Sheriff
may amend his return by leave of court,
even after his term of office expires.
Newton v. Prather, 1 Duv. 100 ; and after
judgment has been rendered. Thompson
V. Moore, 91 Ky. 80; Tyler v. Jewell, 10
R. 887.
(2) Aoiwer waives service. Filing an-
swer waives right to object to want of
legal service. Elliott Co. v. Kitchen, 14
Bush 289 ; and see further as to waiver,
note 4, soc. 39.
(3) Clerk's entry of retara on docket
when summons is lost is entitled to more
weight that recollection of defendant and
sheriff. Lemming v. Mullins, 6 R.
523.
(4) False retura. See note 1, sec. 48.
(5) Special Mllff— service by. See notes
to sec. 47.
(6) Saffideacy of retara. See notes 6-11,
aeo. 48.
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TITLE I^d SERVICE OF SUMMONS. 47
§ 51 [TT-sd] Cowity — city — corporation — carrier. 1. In action against a
county the summons must be served on the presiding judge of the
county court, or, if he be absent from the county, upon its attorney.
2. In an action against a municipal corporation the summons
must be served upon its mayor or the chairman of its board of
trustees ; or, if he be absent from the county, upon the defendant's
official attorney, if it have one ; or, if it have no such attorney,
upon its marshal.
8. In an action against a private corporation the summons may
be served, in any county, upon the defendant's chief officer, or agent,
who may be found in this State ; or it may be served in the county
wherein the action is brought upon the defendant's chief officer or
agent who may be found therein ; [or if the defendant operate a
railroad, it may be served upon the defendant's passenger or
freight agent stationed at or nearest to the county seat of the
county in which the action is brought.] ( Words in brackets added
by act 1893.) {Service of process on insurance company. See Ky.
Stat.j sec. 631.)
4. [In every action] against a common carrier, the summons may
be served, in any county, upon the defendant's chief officer or
agent ; or it may be served, in the county wherein the action is
brought, upon the defendant's chief officer or agent who resides
therein ; or, if the defendant operate a railroad, it may be served
upon defendant's passenger or freight agent stationed at or near-
est to the county seat of the county in which the action is
brought. ( Words in brackets inserted by act 1893.)
6. Where the defendant corporation is the owner or the lessee of
a railway in this State, or the builder or constructor of a railway
in this State, and can not be served with summons under existing
laws, then the person or corporation controlling or operating the
railway so owned or built or constructed shall be treated as the
representative of the defendant, and service of summons upon such
of the officers or agents of the persons or corporation operating or
controlling the railway as would be required if such controller or
operator were the party sued, shall be a sufficient service of sum-
mons upon the defendant to the action, but such service must be
twenty days before the commencement of the term, and the facts
I 5L (1) AaMateeat inserted as sub- see N., 0. & 9t. L. R. v. Carrico, 9b Ky.
section five is constitutional. M. <& B. 8. 489; in tort see SberriU v. C. O. & S< R.
R. R. V. Shofstall, 15 R. 682. Ck)., 80 Ky. 802 ; Harper v. N.IN. & M. V.
(2) CoMMa carrier. As to service of r., 90 Ky. 359 ; p. O. A S. W. R. v. Heath,
saminoiis in action against on contract, 87Ky.:651; C.&O.R.v.Cowlierd,16R.37a.
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48
SERVICE OF SUMMONS.
[title IV
authorizing the same must be made to appear by the return of the
officer or the affidavit of some person other than the plaintiff in
the action, and the appearance of the defendant to move for the
quashal of the service of the summons shall operate as an appear-
ance for all the purposes of the action, and the same shall stand
for trial at the succeeding term of the court in case the motion to
quash shall prevail. {This subdivision added by act 1890,)
6. In actions against an individual residing in another State, or
a partnership, association, or joint stock company, the members of
which reside in another State, engaged in business in this State,
the summons may be served on the manager, or agent of, or per-
son in charge of, such business in this State, in the county where
the business is carried on, or in the county where the cause of
action occurred. {This subdivision added by act 1893.) {Venue of
action against corporation^ sees. 71 y 72^ 75; against common carrier ^
sec. 73; who is ^' chief officer oragenty^' meaning of ^'resides " sec. 732.)
§ 52 [til lofiot ooder fourteen. If the defendant be under the age of
fourteen years the summons must be served on his father; or, if he
have no father, on his guardian ; or, if he have no guardian, on his
mother; or, if he have no mother, on the person having charge of him.
(3) In an action brought pursuant to
sec. 73 against a common carrier, sum-
mons may be served in the county where
action is brought upon the defendant's
chief officer or agent who resides therein.
Adams Ex. Co. v. Crenshaw, 78 Ky. 136 ;
as to service on general ticket or passen-
ger agent, see C. & O. R. R. v. Cowherd,
16 R. 373.
(4) Insnraace company. Service of proc-
ess on insurance commissioner in action
against. Ky. Stat. , 571 ; and see further as
to venue of action and service of process,
Ky. M. S. Co. V. Logan, 90 Ky. 364.
§52. (1) Clerk to appoint foardian a4
Itten when required affidavit is filed, or
when petition states necessary facts and
is verified. Tyler v. Jewell, 10 R. 887.
(2) Decisioni under 1854 Code as to proper
service. Morrison v. Garrott, 15 R. 305 ;
86 Ky. 615.
(3) Delivery of copies. The delivery of
one copy for all the infants named there-
in to the person authorized to be served
with process for them is sufficient.
Cheatham v. Whitman, 86 Ky. 615; Don-
aldson V. Stone, 11 R. 27.
(4) Person in cliarge of infant, although
under twenty-one, may be served with
summons. Lawrence v. Conner, 12 R. 86.
(5) Return of officer. In action against
an infant whose father was dead, the
officer's return, showing that summons
was executed upon infant and his mother,
is sufficient, nothing appearing in the
record to show he had a guardian. It
will be presumed officer did his duty.
Webber v. Webber, 1 Met. 18; and see 86
Ky. 615; 12 R. 644; 11 R. 27.
(6) Return of special bailiff, showing
that he executed process upon infant and
his mother, without showing that father
or guardian could not be found, is not
sufficient. Lloyd v. McCauley, 14 B. M.
535. The court refrain from saying
whether such a return made by an officer
would be sufficient. The Code of 1854
provided that if neither the father nor
guardian could be found, summons might
be executed on mother. 80 Ky. 64.
(7) The return of sheriff on a summons
against infant defendants, that he exe-
cuted it by delivering a copy to each of
the persons named in it, negatives the
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TITLE IV] SERVICE OF SUMMONS. 49
[K any of the parties upon whom summons is directed to be
served by this section is a plaintiff, then it shall be served on the
person who stands first in the order named in said section, and
who is not a plaintiff; and if all such persons are plaintiffs, it shall,
on the affidavit of one or more of them showing that fact, be the
duty of the clerk of the court to appoint a guardian ad litem for
the infant, and the summons shall be served on such guardian.]
( Words in brackets added by act 188^.)
§ 53 (tai Person of oosouod miod. If the defendant be of unsound
mind the summons must be served on him and on one of the follow-
ing named persons, if residing in the county, viz. : on his committee ;
or, if he have no committee, on his father; or, if he have no father,
on his guardian; or, if he have no guardian, on his wife; or, if he
have no wife, on the person having charge of him ; or, if the de-
fendant be a married woman of unsound mind, and her husband be
plaintiff in the action, the summons must be served on her and her
committee ; or, if her husband be not plaintiff in the action, upon
her and her committee, if she have one; or, if she have no commit-
tee, upon her and her husband : Provided^ That the summons shall
not be served upon a person of unsound mind, if he be under charge
or treatment of a physician who certifies that, in his opinion, the
service would be injurious to such person. Such certificate shall be
returned with the summons.
[Service of a summons, by delivering a copy of it to the physi-
cian having charge of a person of unsound mind, shall have the
same effect as a service on the person of unsound mind, if such
physician gives a certificate, attested by the officer delivering him
the copy, that a personal service would, in his opinion, be injurious
to such person of unsound mind.] ( Words in brackets added by act
of 1882 ; venue of action against^ sec. 69.)
§ 54 [tsi Prisooer — service oo. If the defendant be a prisoner a copy
of the petition must accompany the summons, and the service must
be upon the keeper of the penitentiary, who shall deliver the copies
presumption that he served it on guard- mother of infants was and that she was
ian or any one except those named in it. their custodian the failure of officer to
Beverly v. Perkins, 1 Duv. 251; and pre- state in return that he executed summons
sumption that officer did his duty is on mother and custodian does not render
rebutted when return shows how process service invalid. Bailey v. Fanning, 12
was executed and that it was not exe- R. 644.
cuted as required. Cheatham v. Whit- (9) Amendment of return, allowable
man, 86 Ky. 614. even after judgment. Tyler v. Jewell,
(8) Where the petition stated who 10 R. 887; and see further note 1, sec. 49.
(4)
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50 SERVICE OF SUMMONS. [TITLE IV
of the petition and summons to the prisoner. And a copy of the
summons must also be delivered to the curator of the defendant, if
he have one ; or, if he have no curator, to his wife, if he have one ;
or, if he have no wife, it shall be left at the place, if known, where
he resided, or claimed to reside, prior to his confinement, with some
person of the age of sixteen years. ( Venue of action against^ sec. 69.)
§ 55 £•*! Shakers — service oo. If the defendant be a community of
Shakers, holding property in common, the service must be made by
posting a copy of the summons at the door of its meeting house, and
by delivering a copy thereof to some member of the community.
§ 54 [••) Noa-resideiits, except iiifiiits. Excepting infants [under the
age of fourteen years] — other than married women — and persons of
unsound mind and prisoners, if a defendant be out of this State the
plaintift* may take a copy of the petition, certified by the clerk, with
a summons annexed thereto, warning him to appear and answer the
petition within sixty days after the same shall have been served on
him, and may cause a copy thereof to be delivered to such defendant
by a person to whom he is personally known. Proof of the deliv-
ery shall be made by the affidavit of the person making it, indorsed
on or annexed to the certified copy and summons, in which the time
and place of the delivery, and the fact that the defendant was per-
sonally known to the affiant, shall be stated. The officer before whom
the affidavit is made shall certify that the affiant is personally known
by him to be worthy of credit. ( Words in brackets inserted by act 1890.
Venue of action against^sec. 75. This service does not authorize 'personal
judgment^ sec. 4.19.)
ARTICLE 2.
CONSTRUCTIVE SERVICE.
§ 57. Constructive service — warning order.
§ 58. Affidavit for warning order — effect of. j
§ 59. Attorney — appointment, duties, compensation.
§ 60, Defendant deemed summoned — when— effect.
§ 61. Actual service on defendant — effect.
§ 57 [99 «o fo] Coflstrvctive scryke — wiraiof order. If the defendant be —
§56. Personal iad^ment can not be ren- §57. (1) Divorce proceetflngB. Resi-
dered on service under this section. Gris- dent wife may sue non-resident husband
wold V. Popham, 1 Duv. 170; Berry v. for divorce. In such case no bond is
Berry, 6 Bush 594; sec. 419. necessary. Rhyms v. Rhyms, 7 Bush 316.
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TITLE IV]
SERVICE OF SUMMONS.
51
1. A corporation having no agent in this State, known to the
plaintiff, upon whom a summons can be lawfully served ; or,
2. A non-resident of this State and believed to be absent there-
from ; or,
3. Have departed therefrom with intent to delay or defraud his
creditors; or,
4. Have been absent therefrom four months ; or,
5. Have left the county of his residence to avoid the service of
a summons ; or,
6. So conceal himself that a summons can not be served upon
him ; or,
7. If his name and place of residence be unknown to the
plaintiff, the clerk shall, subject to the provisions of section
fifty-eight, make upon the petition an order warning the defendant
to defend the action on the first day of the next term of the .court,
which does not commence within sixty days after the making of
the order. (Venue of action against^ sec. 75 ; how defendant whose
name unknown described^ sec. 691 ; form of warning order ^ page 625.)
(2) It was held under Code of 1854
that oourt granting divorce on construc-
tive service might award a new trial
within time allowed, although party ob-
taining divorce should marry. Meyar v.
Meyar, 3 Met. 297. But see sec. 414 of
this Code.
(3) Husband can not proceed against
his wife as a non-resident when she is
absent from the State in obedience to his
will, or is confined by him in an asylum
or other place, with no power to return
or respond to the warning order. New-
comb v. Newcomb, 13 Bush 544.
(4) Jvdf neiit suttalaiof attacbmeiit
against non-resident defendant who does
not appear, without warning order
against him, is erroneous. Allen v.
Brown, 4 Met. 341.
(5) Strictcod^llulice wftbCode necessair.
In ail proceedings upon constructive serv-
ice, the proirisions of the Code regulat-
ing the same must be literally followed.
Nothing short of a substantial compli-
ance with every requisite will give court
jurisdiction. Brownfleld v. Dyer, 7 Bush
505. See Jackson v. Speed, 2 Duv. 436;
Grigsby v. Barr, 14 Bush 330.
(6) Somon aod Warsfng order oot nec-
essary. In proceeding against defendant
by constructive service, the warning
order is commencement of action. Hoff-
man V. Brungs, 83 Ky. 400.
(7) Warniof order. Judgment ren-
dered upon warning order citing defend-
ant to appear at a term commencing less
than sixty days from date of order is
void, and if judgment so rendered is set
aside and a subsequent judgment ren-
dered upon same order it will be void.
Payne v. Hardesty, 12 R. 336 ; Herd v.
Cist, 14 R. 644; 7 Bush 505.
(8) Warning order is in the nature of
a rule and is not a process in the mean-
ing of the Code or that section of Consti-
tution providing that the style of all
process shall be **the Commonwealth of
Kentucky." Northern Bank v. Hunt,
93 Ky. 67.
(9) The court may direct the clerk to
enter a warning order in the order book
and when it is made it is as effectual as
if made by the clerk in vacation. 93
Ky. 67 ; and see Hack worth v. Harlan,
14 R. 76.
(10) Warning order is not invalid be-
cause not written on petition ; it will be
sufficient if made upon a separate piece
of paper and attached to petition. Har-
lammert v. Moody, 15 R. 839.
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52
SERVICE OF SUMMONS.
[title IV
§ 58 [S9] Affidavit for wiraiaf order — effect of. 1. The clerk shall not
make such warning order upon any of the grounds mentioned in
subsections one, two, three, four, and seven, of section fifty-seven,
except upon an affidavit of the plaintiff; or of his agent or attorney,
if he be absent from the county; or of his guardian, curator, com-
mittee, or next friend, if he be under disability ; or of the attorney of
either of them, if absent from the county, stating the ground of the
application for such order.
2. Nor shall the clerk make such order on any of the grounds
mentioned in subsections one, two, and four, of section fifty-seven,
unless the affidavit also state in what country the defendant, or, if
the defendant be a corporation, in what country its chief officer or
agent, resides or may be found, and the name of the place wherein
a post-office is kept nearest to the place where the defendant or its
chief officer or agent resides or may be found ; or unless the affi-
davit state the affiant's ignorance of such of those facts as he does
not know.
3. Nor shall the clerk make such order upon an affidavit of an
agent or attorney of the plaintiff, stating any of the grounds men-
tioned in subsections one, two, four, and seven, of section fifty-
seven, unless the affidavit state the affiant's belief that the plaintiff
is ignorant of such of the facts as are unknown to the affiant.
§ 58. (1) Affidavit for waraing order.
Court of Appeals will not dismiss an ap-
peal because of defect in affidavit for
warning order made in that court, but
will quash the order if affidavit is defec-
tive. Arthurs v. Harlan, 78 Ky. 138.
(2) Affidavit for warning order must
state that person against whom it is
made is a non-resident and believed to
be absent from this State. 78 Ky. 138.
(3) The absence of affidavit for warn-
ing order from the record does not render
the judgment void. The presumption is
that the warning order was entered by
the court as directed in the Code. New-
comb V. Newcomb, 13 Bush 544.
(4) The failure to state in affidavit the
name of defendant's post-office or affi-
ant's ignorance thereof did not render
judgment in this case void. Carr v.
Carr, 92 Ky. 552.
(5) A verified petition containing all
the necessary averments dispenses with
necessity of affidavit. Alley v. Hastie,
15 R. 690. Wilson v. Teague, 95 Ky. 47.
(6) Affidavit The failure of the clerk
to sign his name to the jurat to the af-
fidavit for warning order did not render
the judgment void, as the court will
presume after the absence of several
years that a proper affidavit was filed
before warning was made. Sear v. Sear,
95 Ky. 173, Farris v. Perkins, 16 R. 48,
and see further, Wilson v. Tague, 95 Ky.
47, as to when judgment is not void be-
cause of defective affidavit.
(7) Warnlag order is sufficient to bring
a non-resident before the court whether
he be sane or insane. Uarlammert v.
Moody, 15 R. 839.
(8) As to sufficiency of warning orde
made under United States statute, see
Mer. Trust Co. v. South Park Co., 94 Ky.
271.
(9) The taking of warning order
against non-resident defendant is com-
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TITLE IV] SERVICE OF SUMMONS. 58
4. The clerk may make such order upon an affidavit of the
plaintiff, or of his agent or attorney if he be absent from the
county ; or of his guardian, curator, committee, or next friend, if he
be under disability ; or upon the return of a summons by the
proper officer, stating either of the grounds mentioned in subsec-
tions five and six, of section fifty-seven.
5. But the clerk shall not make such order upon the affidavit of
an agent or attorney unless it also state the affiant's connection
with the plaintiff, and the fact that he is absent from the county.
6. An affidavit made pursuant to the foregoing provisions of
this section, unless it be controverted by the defendant's affidavit,
shall be sufficient evidence of the facts therein stated for the sup-
port of the action as well as of the warning order. (Form of affi-
davit J page 628; hoio and before whom made^ sees, 55 ly 54^; if several
plaintiffs^ how made^ sec. 550; who is " chief officer or agent^'* meaning
of " disability y' sec. 732. See also, sees. 126, 409.)
§ 59 [«4o. ««i] Attorney — ippoiiitmeiit« duties, compensatioo. 1. The clerk, at
the time of making such warning order, shall appoint, as attorney
for the defendant, a regular, practicing attorney of the court ; but
the court may, and for any reason which it deems good shall, appoint
another attorney as a substitute for the attorney appointed by the
clerk. Neither the plaintiff nor his attorney shall be appointed, or
be permitted to suggest the name of, the defendant's attorney.
2. Such attorney must make diligent efforts to inform the defend-
ant, by mail, concerning the pendency and nature of the action
against him, and must report to the court, during the first term,
which does not commence within sixty days after his appointment,
the result of his efforts.
3. The duties and powers of such attorney are governed by the
last foregoing paragraph unless he be employed by the defendant ;
or unless he be unable to inform the defendant concerning the
mencement of action as to him ; no sum- Met. 649; Salter v. Dunn, 1 Bush 311 ; 4
mons is necessary. Hoffman vs. Brungs, Met. 341.
83Kv. 400. (2) Person constructively summoned
(10) Warning order made within a who appears for first time by appealing
reasonable time after affidavit filed is from judgment against him will only be
sufficient — in this case warning order was held to have appeared in lower court on
made day after affidavit was filed. Corn- day mandate is entered, and no judgment
wall V. Falls City Bank, 92 Ky. 381. can be rendered against him at that
1 59. (1) Appearance— 4ippeal enters, term. Beazley v. Maret, 1 Bush 466.
Prosecution of appeal by non-reSident (3) An littorney for the plaintiff should
enters appearance. Gill v. Johnson, 1 not in any case be allowed to enter the
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54
SERVICE OF SUMMONS.
[title IV
action ; or unless he learn that the defendant is under disabilitj',
other than coverture, or other than infancy and coverture com-
bined.
4. Such attorney, if employed by the defendant, shall so report
to the court; and such report shall be treated as an appearance of
the defendant in the action.
5. If such attorney can not inform the defendant concerning
the action, or if he learn that the defendant is under disability,
other than coverture, or other than infancy and coverture com-
bined, he shall so report to the court, and shall make an affirm-
ative defense if he can ; or, if he can not make sucli defense, he
shall so report to the court, and shall he subject, with reference
to such report, to the provisions of subsection three of section
thirty-six; and no act of his shall be treated as an appearance of
such defendant.
6. The provisions of subsection four of section thirty-eight
apply with reference to the compensation of such attorneys.
7. No judgment shall be rendered against such defendant if
under any disability, other than coverture, or infancy and covert-
ure combined, until a defense or report shall have been filed
appearance of the defendant. Ball v.
Poor ; 81 Ky. 26 ; and see notes to sec. 410.
(4) Aoiwer eitere appeartocc. Non-res-
ident who by his attorney files an answer
sworn to by him in another State must be
regarded as personally before the court,
although he disclaims in answer any in-
tention of entering his appearance. Tip-
ton V. Wright, 7 Bush 448.
(5) Attorney employed by non-resident
should so state in his report, and when
he fails to do this it will not be presumed
that he has been employed. Christie v.
Garrity^ 14 R. 910.
(6) Attorney— allowance to. No allowance
should be made to attorney for non-
resident appoiilted by the court when he
is acting under contract with the non-
resident and looking to him for compen-
sation. Cabell V. Cabell, 1 Met. 310.
(7) No allowance should be made to
an attorney appointed to defend for non-
resident when no report is filed by him or
duty performed. Southwood v. Myers,
3 Bush 681 ; Jackson v. McElroy, 2 Bush
132.
(8) Failure to appoint— effect of. The
court say : *' And, although the failure to
appoint the attorney (for non-resident) or
to take the bond required by sec. 440
(410) are reversible errors, the jurisdic-
tion being complete, the judgment will
not be void." Thomas v. Mahone, 9
Bush 111.
(0) Judgment — attorney can not consent
to. Attorney appointed for non-resident
has no authority to consent to judgment
against him unless employed by him ;
and recital in judgment that it is ren-
dered by consent will not sustain it-
Anderson V. Sutton, 2 Duv. 480 ; and see
Ball V. Poor. 81 Ky. 26.
(10) Report not filed. Failure of at-
torney appointed to defend for non-res-
ident to make defense or file report is not
reversible error, and does not affect
validity of steps taken by the court-
Brown V. Early, 2 Duv. 369; Ball v-
Poor, 81 Ky. 26 ; Morrison v. Beckham,
16 R. 294. See subsec. 7, this section, as
to necessity for defense or report if non-
resident is an infant.
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TITLE V] COUNTY IN WHICH ACTION MUST OR MAY BE BROUGHT. 55
pursuant to subsection five of this section. {ExeciUing bond for
attached property is appearance, sec. 690; personal judgment can not
be renderedy sec. 4,19.)
§ M [ti] Defendant deemed sommooed when — effect. A defendant
against whom a warning order is made and for whom an attorney
has been appointed shall be deemed to have been constructively sum-
moned on the thirtieth day thereafter, and the action may proceed
accordingly.
§61 [ts] Actual service oa defeadaot — effect The plaintiff may, at any
time before judgment, have a summons served on the defendant if
found in this State, although a warning order may have been pre-
viously entered against him ; and after such service the case shall
proceed as in other cases of actual service.
TITLE Y.
COUNTY IN WHICH AN ACTION MUST OR MAY BE BROUGHT.
§ ©a. Real property— concerning.
§ 63. Fine or forfeiture to recover— officer against.
§ 64. Wills— <x)ncerning.
§ 65. Decedent's estate, to settle.
§ 66. Distribution, partition, sale of decedent's estate.
§ 67. Ward against guardian.
§ 68. Sinking fund commissioners or board of education.
§ 6fiL Prisoner or inmate of asylum.
§ 70. Upon return of ** no property found."
§ 71. Bank or insurance company.
§ 72. Corporations generally.
§ 73. Common carrier.
§ 74. Person or character — injury to.
§ 75. Person constructively summoned.
fat. (1) Depositioas-ftiardlaa ad men. (2) Trial — whea action stands for. If
Depositions taken upon notice to corre- warning order made more than sixty days
sponding attorney can be read against before term commences, equity action
infant defendant constructively sum- does not stand for trial at that term, unless
moned, although he had no guardian ad pleadings are made up ninety days [now
Utem, C. & L. R. R. Co. v. Bowler, 9 sixty] before commencement of term, as
Bush 468. It seems that this Code does provided by sees. 91, 137, 393 of Code (same
not require a guardian ad litem for an as sees. 60, 102, 364 of this Code). These
infant non-resident. See sees. 36, 59, sections must be construed together.
subsec. 5. The Code of 1854, sec. 55, Harris v. Adams, 2 Duv. 141. Secc. 57,
provided that no judgment could be 60, so far as they regulate the time given
rendered against an infant until after for answer, do not apply to the Louisville
defense for him by guardian. chancery court. 78 Ky. 7ft
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COUNTY IN WHICH ACTION MUST OR MAY BE BROUGHT. [TITLE V
§ 76. Alimony or divorce.
% 77. Contractor for public works.
§ 78. Transitory actions.
§ 79. Against single defendant— Jadgment.
§ 80. Several defendants — ^judgment.
§ 81. Defendant can not be summoned — ^when.
§ 82. Removal of defendant after commencement of action.
§ 62 [ts] Real property — coBcendof. Actions must be brought in the
county in which the subject of the action, or some part thereof, is situ-
ated—
1. For the recovery of real property, or of an estate or interest
therein.
2. For the partition of real property except as is provided in sec-
tion sixty-six.
3. For the sale of real property under title ten, chapter four-
teen, or under a mortgage, lien, or other encumbrance or charge,
except for debts of a decedent.
4. For an injury to real property, {Definition of ^^reai propertyy"*
sec.
162. (1) Attachneot may be levied oo
land ia aoy conaty. Land may be
levied on and sold under an attachment
in other county than one in which action
is pending in which attachment is ob-
tained. Nixon V. Jack, 16 B. M. 174. See
also Webb v. Wright, 2 Bush 126, and
sec. 201.
(2) Bnforcemeot of contract concerning
land where it does not involve a sale of
the land to satisfy a lien is transitory.
Henderson v. Perkins, 04 Ky. 207.
(3) Infant's land— Jorisdiction to selL Cir-
cuit court of one county has no jurisdic-
tion to sell land of infant in another
county on petition of guardian of infant,
although land descended to infant from
his father, who died intestate in county
where suit brought, and his administra-
tor qualified in that county. Montgom-
ery V. Montgomery, 2 Bush 40; unless
the action comes under sees. 65 or 66.
See those sections and notes thereto.
(4) In|nry to land. Action for injury to
land — as cutting trees — must be brought
in county in which land is located.
Meehan v. Edwards, 02 Ky. 574.
(5) Insolvent estate. Inaction to settle,
court may order sale of land situated in
another county. Fishback v. Green, 87
Ky. 107 ; Mechanics' Trust Co. v. Cobb,
14 R. 444.
(6) Land in two counties adjoininf. Ac-
tion to recover may be brought in either
county. Harlan v. Howard, 70 Ky. 373
(7) Land — to enforce lien on. Circuit
court of one county has no jurisdiction to
enforce lien on land in another county.
Webb V. Wright, 1 Bush 107; luiless the
proceeding in rem attaches as an inciden-
tal remedy, 2 Bush 126.
(8.) Rescission of contract concerning land.
Action for is transitory and may be
brought in county other than that in
which land is situated. Thompson v.
Elmore, 13 R. 602.
(0) Sale of land held Jointly. Separate
action may be brought fof in county
where land lies, although an action is
pending in another county for the divis-
ion of the land and allotment of dower.
Danforth v. Moss, 00 Ky. 246.
(10) Specific execution of contract con-
cerning land and to enforce lien thereon,
action for must be brought in county
where land is located, and in such action
a personal judgment for the purchase
money may be rendered although the
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TITLE V] COUNTY IN WHICH ACTION MUST OR MAY BE BROUGHT.
57
§ 63 [M] Fine or forfeiture to recover — officer against. Actions must be
brought in the county where the cause of action, or some part there-
of, arose —
1. For the recovery of a fine, penalty, or forfeiture, imposed by
a statute ; but if the offense for which the claim is made be com-
mitted on a water-course or road which is the boundary of two
counties, the action may be brought in either of them.
2. Against a public officer for an act done by him in virtue or
under color of his office, or for a neglect of official duty.
3. Upon the official bond of a public officer.
§ 64 [t»] Wills— coflcemiof. A proceeding to establish, or an action
to set aside, a will must be brought in the county in which the will,
if valid, ought, according to law, to be recorded. {County will vinst
be recorded in^ Ky. StaLj sec. 4849.)
§ 45 [ft] Decedeafs estate to settle. An action to settle the estate of a
deceased person must be brought in the county in which his personal
representative was qualified. {Other provisions concerning, sees. 4^8
to 438.)
only defendant is summoned in another
county. CJollins v. Park, 03 Ky. 6 ; Hen-
derson V. Perkins, 14 R. 782.
(11) Title— to qalet Party having le-
gal title and possession of land may in-
stitute suit against party claiming it, to
quiet his title, in county where land lies
Landrum v. Farmer, 7 Bush 46.
(13) Title ~ to perfect Action to per-
fect title to land is transitory, and
comes under sec. 78. Page v. McEee, 3
Bush 135.
163. (1) Pile or forteitiire. A civil
action may be maintained to recover.
CJom. V. Sherman, 85 Ky. 686 ; Com. v.
Avery, 14 Bush 625.
(2) Sheriff— failing to return or collect
execotioa. Action on sheriff's bond for
failing to return execution from another
count J', and failing to pay over money
collected on execution, must be brought
in county where sheriff qualified. Bank
of Ky. V. Harrison, 1 Bush 384 ; Foster
v. Wade, 4 Bush 628. And for failing to
make execution from another county,
must be brought in county where he
qualified. Groom v. Picket, 4 Bush 372.
§ 64. Will— to set aside. Petition seek-
ing division of land will not confer jur-
isdiction to set aside will unless court
had jurisdiction independent of suit for
division. Hughey v. Sidwell, 18 B. M.
259. See 1 Bush 515 ; 17 B. M. 632 ; aa
to when will may be set aside see Ky.
Stat., sec. 4861, and Abbott v. Tray lor, 11
Bush 335.
I 65. (1) Actioo for sale of land and dis.
tribntion of proceeds as directed by will
must be brought in county where will is
probated. Flint v. Spurr, 17 B. M. 499.
(2) Settlement of estate— parties. Inac-
tion to settle decedent's estate only the
persons named in sec. 428 are necessary
parties, and debtors of the estate or per-
sons liable to it are not proper or neces-
sary parties, and the court by service of
process in another county can not acquire
jurisdiction over them. Citizens' Bank
V. Boswell, 93 Ky. 92.
(3) Settlement of estate— sale of land. In
action to settle estate land in county
other than one in which action is pend-
ing may be sold. Fishback v. Green, 87
Ky. 107.
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COUNTY IN WHICH ACTION MUST OR MAY BE BROUGHT. [tITLE V
§ 66 [tT] Distribation, partitioa, sole of decedent's estate. An action for
the distribution of the estate of a deceased person, or for its parti-
tion among his heirs, or for the sale, for payment of his debts, of
property descended from or devised by him, must be brought in the
county in which his personal representative was qualified. {Other
provisions concerning^ sees. 4^8 to 438.)
§ 67 [••] Ward ifiiast fnardian. An action by a ward against his
guardian for a settlement of his accounts, for additional security, or
for his removal, must be brought in the county in which the guard-
ian was qualified.
§ 68 [••] Siokinn; fiuid comnissioaers or board of edncatioa. An action
against the Commissioners of the Sinking Fund, or the Board of
Education, of this State, must be brought in the county that in-
cludes the Seat of Government.
§ 66. (1) JaritdictioB. In an action for
the sale of a decedent's estate for the
purpose of reinvestment as to the infants
and a division of the proceeds as to the
adults, the court of the county in which
the decedent died had jurisdiction to
order fche sale of real property in other
counties. Phalan v. L. S. V. & T. Co.
88 Ky. 24.
(2) Action against administrator and
heirs to subject land descended to the
payment of decedent's debts must be
brought in county where administrator
qualified, and so must an action by ward
against administrator of his guardian
and his heirs to subject land descended.
Willis V. Roberts, 90 Ky. 122.
(3) Action by administrator and heirs
for sale of land and division of proceeds
must be brought in county where repre-
sentative qualified and land located in
another county may be sold. Walker v.
Yowell, 14 R. 829.
(4) Parties to action. In action under
this section the only necessary parties
are those mentioned in sec. 428; debtors
of the estate or persons liable to it are
not necessary or proper parties. Citizens'
Bank v. Boswell, 93 Ky. 92.
(5) Partition of land. Suit should be
brought in county where administration
was granted for partition of lands of an
intestate ; but it not appearing that ad-
ministration was granted, suit was prop-
erly brought in county where he died.
Driskell v. Hanks, 18 B. M. 855.
(6) Set-off by distribntee against admin-
istrator. Distributee of estate sued by
administrator for debt due latter in his
own right can not plead as set-off amount
due him by administrator on the settle-
ment of the estate, in a county other
than that in which he qualified. This
section applies to set-off. Bennett v.
McCrocklin, 3 Met. 322.
1 67. (1) Jnrisdiction. Trustee of an
express trust who desires to settle his
accounts must bring action to do so in
county where instrument creating trust
is recorded. Cunningham v. Frazie, 85
Ky. 35.
(2) Action by administrator of ward
against guardian must be brought in
county where guardian qualified. Stone
v. Powell, 13 B. M. 342.
(3) Action by ward against guardian
for balance due on settlement must be
brought in county where guardian
qualified. Greenly v. Daniels, 6 Bush 41.
(4) Action by ward against adminis-
trator and heirs of his guardian to subject
land descended to them must be brought
in county where administrator qualified.
Willis V. Roberts, 90 Ky. 122.
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TITLE V] COUNTY IN WHICH ACTION MUST OR MAY BE BROUGHT.
59
§ if [iMi Prisoner or iinate of nyhmi. An action, not mentioned in
sections sixty-two to sixty-seven, both inclusive, nor in section
seventy, against a prisoner in tliis State, or a person confined in an
asylum for persons of unsound mind in this State, must be brought
in the county, if known, in which he resided, or claimed his resi*-
dence, when confined. {Service qf summons on, sees. 63-Si.)
§ T% [4T«i Upoe retnni of ''no fwoperty fowid." An action upon a return
of no property found, pursuant to section four hundred and thirty-
nine, must be brought in the county in which the judgment is ren-
dered, or in which the defendant resides or is summoned.
§ 71 :iei] Baak or insnrtoce compaiiy. Excepting the actions mentioned
in sections sixty-two to sixty-six, both inclusive, and in sections sev-
enty and seventy -five, an action against an incorporated bank or insur-
ance company may be brought in the county in which its principal
office or place of business is situated ; or, if it arise out of a transaction
with an agent of such corporation, it may be brought in the county in
which such transaction took place. (Service of summons on^ sec. 5L)
§ M. Prisoner— act of 1856^ Action un-
der act of 1856 to have conveyance made
by prisoner operate as assif^nment for
benefit of his creditors may be brought
in the county where the person to whom
property is transferred is summoned, and
where part of the property is situated.
The action is transitory, and, although
prisoner is necessary party, need not be
brought in county of his residence at
time of confinement. McAlister v. Sav-
ings Bank, 80 Ky. 684.
§ 70. (1) ChMse ma4e by this Code.
The words ** county in which the judg-
ment is rendered " are used in this Code
in place of the words *' in the court from
which the execution issued," fouad in
Code of .854.
(2) It was held under Code of 1854
that if action was brought in county
where judgment was rendered, it must
be in court from which the execution
issued ; but, if brought in any other
county, might be in any court having
jurisdiction. Smith v. Bohon, 12 Bush
448; Bohon v. Smith, 11 Bush 32; 16 B.
M. 174; 10 Bush 251 ; 11 Bush 636.
(3) Jirisdktioa. Action against rail-
road company, if not brought in court
whence execution issued, must be in
county where its president or chief offi-
cer resides, or its principal office or place
of business is. McDormant v. L., C. <&
L. R. R. Co., 11 Bush 386.
(4) Action upon return of no property
may be brought in county in which de-
fendant resides. Parsons v. Spencer, 83
Ky. 305. See further notes to sec. 439.
(5) Action may be brought in circuit
court to subject personalty upon a return
of no property on an execution from a
justice's court. Austin v. Payne, 7 Bush
480. But not land. Weatherford v.
Myers, 2 Duv. 91 ; 7 Bush 480. See
notes to sec. 439.
1 71. (1) Insorance company. Und(>r
this section it was held that an action
against an insurance company might be
brought in Bourbon county, although its
charter granted in 1839 required all suits
against it to be filed in Jefferson County
Circuit Court. Howard v. K. & L. Ins.
Co., 13 B. M. 281.
(2) Action against may be brought in
county in which the contract of insur-
ance with agent was made, and process
may be served upon chief officer in an-
other county. Ky. Mut. Ins. Co. v.
Logan, 90 Ky. 364.
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60 COUNTY IN WHICH ACTION MUST OR MAY BE BROUGHT. [tITLB V
§ 72 [101. los] Corporatioos generally. Excepting the actions mentioned
in sections sixty -two to sixty-six, both inclusive, and in sections sixty-
eight, seventy, seventy-one, seventy-three, seventy -five, and seventy-
seven, an action against a corporation which has an oflice or place of
business in this State, or a chief officer or agent residing in this State,
must be brought in the county in which such office or place of
business is situated or in which such officer or agent resides;
or, if it be upon a contract, in the above-named county, or in the
county in which the contract is made or to be performed ; or, if it be
for a tort, in the first-named county, or the county in which the tort
is committed. ( Who is " chief officer^^^ sec. 732, Meaning of " resides^ "
sec. 732. Service of summons on^ sec. 51.)
§ 73 [102] Common carrier. Excepting the actions mentioned in sec-
tion seventy-five, an action against a common carrier, whether a
corporation or not, upon a contract to carry property, must be
brought in the county in which the defendant, or either of several
defendants, resides ; or in which the contract is made ; or in which
the carrier agrees to deliver the property. An action against such
carrier for an injury to a passenger, or to other person or his prop-
erty, must be brought in the county in which the defendant, or
either of several defendants, resides; or in which the plaintift' or his
property is injured; or in which he resides if he resided in a county
into which the carrier passes. (Service of summons on, sec. 61.)
§ 72. Construction of lection. This sec- sonal injury can not be brought in a
tion was not intended to and does not ap- county which is neither the residence of
ply to actions against common carriers. any of the parties nor the place where
Harper v. N. N. & M. V. Co., 90 Ky. 359 ; the injury was done. Sherrill v. C, O.
Sherrill v. C. & O. R. R., 89 Ky. 302 ; and & S. R. Co., 89 Ky. 302 ; and in case of a
see CO. & S. R. R. Co. v. Heath, 87 railroad company the residence of its
Ky. 651. . president if there be one in the State, or
§ 73. (1) Common carrier— Jnrisdlctlon. if not its vice-president must be treated
Action against common carrier, whether as the residence of the company' in de-
it be a corporation or partnership, may be termining question of jurisdiction. Har-
brought in county where contract is made, per v. N.N. & M. V. R. R. Co., 90 Ky.
Adams Ex. Co. v. Crenshaw, 78 Ky. 136. 359. But see C. & O. R. R. v. Cowherd,
(2) Where a contract was made in M. 16 R. 373, where it is held this section only
county with a railroad to transport stock applies when the defendant resides in
to a certain point, thence to be carried this State or when plaintiff is injured
by another company to destination, suit therein or resides in a countj' in this
against latter company for damages may State through which the carrier passes,
be brought in M. county where contract and a resident of this State who is in-
was made and summons may be executed jured in another State by a company doing
in another county. N., C. &St. L. R. R. business in this State may sue in the
Co. V. Carrico, 95 Ky. 489. county where the company has a general
(3) Action against a carrier for a per- ticket agent and serve process upon him.
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TITLE V] COUNTY IN WHICH ACTION MUST OR MAY BE BROUGHT.
61
§ 74. Persoo or character — lo|iiry to. Every other action for an injury
to the person of the plaintift*, and every action for an injury to the char-
acter of the plaintiff, against a defendant residing in this State, must
be brought in the county in which the defendant resides, or in which
the injury is done. (See also sec. l^S-l^^.)
§ 75 [io»] Persoos coostmctivety summoned. Excepting the actions men-
tioned in sections sixty-two to sixty-seven, both inclusive, and in section
seventy and section seventy-six, an action against a defendant who
may be proceeded against by a warning order, as is authorized by
section fifty-seven, must be brought in a county in which the defend-
ant resides at the commencement of the action ; or in which he has
property ; or in which a person resides against whom he has a valid
claim for money or property.
§ %. Alimoay or divorce. An action for alimony or divorce must be
brought in the county where the wife usually resides, if she have an
actual residence in this State; if not, in the county of the husband's
residence. {See also sees. 4^0 to 4^j (^'^d as to venue of action see Ky.
Stat., sec. 2120, same as this.)
§ 77. Contractor for public worlc. Excepting the actions mentioned in
section seventy-five, an action against a contractor who undertakes
to construct, in whole or in part, any turnpike, bridge, railway, lock,
(4) Where a railroad is owned by one
company and controlled and operated by
another the latter company is liable for an
injury done by its employes. 90 Ky. 359.
1 74. (1) Assaalt and battery. Action
may be brought in this State for an as-
sault and battery committed in another
State. Watts v. Thomas, 2 Bibb 458.
(3) Pabe inprtooanent Where war-
rant for arrest is sworn out in one county,
and defendant is arrested in another,
action for false imprisonment lies in
county where he is arrested. Mitchell
V. Ripy, 82 Ky. 516.
1 75. Non-residents. If all the defend-
ants are non-residents, action should be
brought in county in which one of them
has property* ; but if some of defendants
are residents of this State, it should be
brought in county where one of them
resides or is summoned. Nixon v. Jack,
16 B. M. 174.
171 (i) Jnrisdlction— waiver of objec-
ttoa. By this statute (section) the Legis-
lature only intended to fix the jurisdic-
tion when it was disputed, or when de-
fendant was proceeded agilinst by con-
structive service; but if defendant is
summoned and appears and fails to
object to jurisdiction, the court may
grant the divorce, if it has jurisdiction
to grant one in any case. Johnson v.
Johnson, 12 Bush 485, and see Ky. Stat.,
sec. 2120.
(2) Residence— avemient of. The^ alle-
gation in petition that plaintiff'* now re-
sides and for some while has resided in
Garrard county " is prima facie equivalent
to the expression ** usually resides*' con-
tained in this section. Lochnane v.
Lochnane, 78 Ky. 467. And allegation
that plaintiff is resident of Campbell
county, omitting the word ♦* Kentucky,'*
is sufficient. Strode v. Strode, 3 Bush
227.
(3) Residence— wliat constitutes. SeePer-
zel v. Perzel, 91 Ky. 684 ; Rhyms v.
Rhyms, 7 Bush 316 ; legal residence dis-
tinguished from actual residence. Tip-
ton v. Tipton, 87 Ky. 243.
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COUNTY IN WHICH ACTION MUST OR MAY BE BROUGHT. [tITLE V
dam, or other public work, for labor done, or materials or supplies
furnished, for the construction or promotion of said work, may be
brought in the county wherein the labor, or most of it, is done, or
wherein the materials, or supplies, or most thereof, are furnished ;
and if such bridge connect two counties, such action may be brought
in either of them.
§ 78 [106] Transitory actions. An action which is not required by the
foregoing sections of this article to be brought in some other
county may be brought in any county in which the defendant, or in
which one of several defendants, who may be properly joined as such
in the action, resides or is summoned. (See sec. 82^ and for exceptions
to rule see sees, 81, 542,)
§ 79 [loT] Against sinj^le defendant — indgment. In an action brought
pursuant to section seventy-eight, against a single defendant, there
shall be no judgment against him, unless he be summoned in the
§ 78. (1) Answer by one — effect on others.
The answer of one of several defendants
not residing in county where suit is
brought does not confer Jurisdiction as
to other defendants who are summoned
out of the county. Kennedy v. Daven-
port, 13 B. M. 167.
(2) Consent to Jttrisdiotion. When court
has no jurisdiction of subject matter
consent can not give. Barton v. Barton,
80 Ky. 212 ; but consent does, when court
has jurisdiction of subject matter.
Hughes V. Hardesty, 13 Bush 364.
(3) One mttst be snmmoned in connty. In
suit against several defendants, it should
appear that one of them was served
with process in the county where suit
was brought, before judgment rendered
against any of them. Pottinger v. May-
fleld, 14 B. M. 647.
(4) Personal Judgment may be rendered
in an action to enforce lien on land
brought in county where land is situated
against the defendant who is summoned
in another county. Collins v. Park. 93
Ky. 6.
(5) Procnred by fraud. Service upon
defendant brought within jurisdiction of
court by fraud of plaintiff does not con-
fer jurisdiction to render judgment.
Wood V. Wood, 78 Ky. 624 ; and defend-
ant may show want of jurisdiction with-
out entering appearance. 88 Ky. 529.
(6) Service on party Improperly joined. A
defendant improperly joined, and sum-
moned, will not give jurisdiction as to
defendants residing in and summoned in
another county. Bayse v. Brown, 78 Ky.
553 ; Ransdall v. Shropshire, 4 Met. 327.
(7) Transitory actions. To perfect title
to land. Page v. McKee, 3 Bush 135 ; to
to rescind contract concerning land.
Thompson v. Elmore, 13 R. 692 ; to com-
pel one who holds legal title to land to exe-
cute conveyance. McQuerry v. Gilliland.
89 Ky. 434; Henderson v. Perkins, 94
Ky. 207.
(8) Waiver of ob|ection to Jurisdiction-^
Filing answer is. Balcer v. L. & N. R.
Co., 4 Bush 619 ; 14 Bush 289 ; or general
demurrer to petition. McDowell v. C.
O. &S. W. R. R., 90 Ky. 346 ; 93 Ky. 177 ;
but motion to quash summons is not.
Barbour v. Newkirk, 83 Ky. 529 ; nor is
filing answer objecting to jurisdiction.
C, O. & S. W. R. R. V. Heath. 87 Ky. 651 ;
Lillard v. Brannin, 91 Ky. 511.
§ 79. (1) Evidence as to residence. De-
fendant sued in one county and served
with process in another; evidence that
he lived in former county when suit
brought and judgment rendered did not
authorize judgment ; but if he removed
from former county after suit filed, judg-
ment would have been proper on evidence
of that fact. Dyas v. Lindsey, 5 Bush 506.
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TITLE V] COUNTY IN WHICH ACTION MUST OR MAY BE BROUGHT. 68
county wherein the action is brought; or, unless he reside in such
county when the action is brought and be summoned elsewhere in
this State ; or, unless he make defense to the action before objecting
to the jurisdiction of the court.
§ 80 [lot. \—] Several defeodants — jodfineiit, banknipt In an action
brought pursuant to section seventy-eight, against several defend-
ants, no judgment shall be rendered against any of them, upon the
service of a summons out of the county in which the action is
brought, if no one of them be summoned in that county, nor resided
therein when the action was commenced ; nor if the action be dis-
continued or dismissed as to the defendant who resided, or was sum-
moned, in that county ; nor if judgment be rendered in his favor, un-
less a defendant summoned out of that county make defense without
objecting to the jurisdiction of the court: Provided, That a judg-
ment for a defendant, who resided or was summoned in that county,
upon a plea of his discharge as a bankrupt, shall not prevent a judg-
ment against any other defendant, in an action brought before the
commencement of the proceedings in which the discharge was ob-
tained; but, after such judgment upon a plea of discharge in bank-
ruptcy, a defendant not summoned in the county, nor residing there-
in at the commencement of the action, may, by answer, deny the lia-
bility of such bankrupt. The issue as to the original liability of such
bankrupt shall be tried as if he were still a party, and the plaintiff
shall not have judgment against the defendant not summoned nor
residing in the county, unless it be decided that the bankrupt was
originally liable. {See further as to judgment, sees. 370, 373)
(2) Ptnoflsl imlfflieflt in action to en- or judgment is not rendered against one
force lien on land. Collins v. Park, 93 served in county where suit brought.
Ky. 6. Duckworth v. Lee, 10 Bush 51 ; Reid v.
(3) Senrice is aootber ceaaty. Suit was Cain, 3 R. 329 ; Ward v. Qeorge, 1 Bush
brought in county of defendant's resi- 357 ; see notes to sees. 78 and 79.
dence and process issued to that and (2) Jndgmeot by defoaK M defective peti-
another county, and was served in latter, tlon — effect Judgment by default against
but not in former, in time for judgment, one of several defendants served in
It was error to render judgment on serv- county wher^ suit brought, when peti-
ice in another county. Raymon v. tion does not state cause of action against
Reed, 16 B. M. 345. him, and it is not made out by proof,
(4) Defendant need not respond, to will not authorize judgment against a
summons in such case. Dyas v. Lindsey, defendant served in another county and
4 Bush 349; Ruby v. Qrace, 2 Duv. 540. who pleads to jurisdiction. Meguiar v.
ISO. a)DlsaiisMla8f»deieidaotserved Rudy, 7 Bush 432; Fernold v. Speer, 3
ie CQWity. If several defendants are sued Met. 459.
and one is served with process in another (3) Waiver af ofifectlen. Where the
county, judgment can not be rendered action is dismissed as to only defendant
against him if action is dismissed as to summoned in tbeoountyb}*^ consent with
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64 JOINDBR OF ACTIONS. [tITLB VI
§ 81. Defendaot cao oat be suniiioiied — ^wheo. In an action brought pur-
suant to section seventy-eight, a defendant who is summoned out of
the county in which it is brought, and who did not reside therein
when the action was begun, can not be summoned in that or any
other action of the plaintiff' whilst visiting such county for the sole
purpose of defending the first-named action. {And see furtheVy sec.
§ 82 [110] Removal of defendant after commencenient of action. K, after the
commencement of an action in the county of the defendant's resi-
dence, he move therefrom, the service of a summons upon him in
any other county shall have the same effect as if it had been made
in the county from which he moved.
TITLE YI.
JOINDER OF ACTIONS.
} S3. Causes of action that may be joined.
i 84. Party may strilce from pleading cause of action.
i 85. Court may require party to elect — may strike'out.
i 86. Waiver of objection to misjoinder.
§ S3 [111] Causes of actioo that may be joioed. Several causes of action
may be united, if each affect all the parties to the action, tnay be
brought in the same county, and may be prosecuted by the same
kind of action ; and if all of them be brought —
leave to other defendants to file an spoken during the action and set up in
answer they are regarded as having an amended petition. Tajlor v. Moran,
waived their right to object to jurisdic- 4 Met. 127.
tion. Meehan v. Edwards, 92 Ky. 574. (3) Common iaterest When it is of
§ 92, Evideace as to residence at com- common interest to several parties to set
mencement of action. Dyas v. Lindsey, aside a judgment, which being done all
5 Bush 506. questions will relate to the same parties
§ ^ (1) Assignee — Action by to re- and subject matter, there is no mis-
cover possession of personal property can joinder. McCormick v. McCormick, 9
not be united with an action by him to R. 519.
settle and distribute the estate. Atchin- (4) Contnct — fraud. Action upon con-
son V. Jones, 8 R. 259. tract and for fraud can not be joined,
(2) Causes must exist at commencement of Wilson v. Thompson, 1 Met. 123, unless
action. The joinder of actions referred the cause of action for fraud or negli-
to in this section (111, same as this sec.) gence is directly connected with the
applies to causes of action existing at cause of action upon the contract. Jones
time of suit and not such as arise subse- v. Johnson, 10 Bush 649 ; Gregg v.
quently ; in action for slander plaintiff Woods, 3 R. 526; Jones v. Johnson, 86
can not recover for slanderous words Ky. 530.
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JOINDER OF ACTIONS.
TITLE Vl]
1. Upon contracts, express or implied; or,
65
2. For the recovery of real property and the rents, profits and
damages for withholding it ; or,
3. For the recovery of specific personal property, and damages
for the taking or withholding it; or.
(5) Creditor asaiost {vardiaii and wards.
Guardian of several wards can not be
sued in same action for claims due by
each of his wards distinct from the
others. St. Joseph O. 8. v. Wolpert, 80
Ky. 86.
(6) Debtor and penou who won from
Mm gaminf. See Caldwell v. Galdwell» 2
Bush 446.
(7) Distribotees against administrator.
Distributees can not sue jointly an ad-
ministrator for balance due by him on
settlement. Pelly v. Bowyer, 7 Bush
513 ; Jackson v. Robinett, 2 Bibb 292.
(8) Joint owners against trespassers.
Joint owners of land may maintain joint
action for its recovery against several
persons claiming and holding separate
parcels of it. Woolfolk v. Ashby, 2 Met.
288. See to the contrary, Sale v. Crutch-
field, 8 Bush 636.
(9) JnrisdictioH — misjoinder can not
give as to defendant summoned out of
county. See note 2 to sec. 86.
(10) Land— damages —separate actions.
In action to recover land and damages
for its detention, the judgment for the
land and damages for its detention are
as distinct as if separate judgments were
rendered in different suits, and in such
action the judgment for recovery of land
may be affirmed and for damages re-
versed. Shean v. Cunningham, 6 Bush
123.
(11) Land — rents — trespass. Plaintiff
may in one action sue for land and rents,
and in another to recover damages for
trespasses and injuries committed by
destruction of timber and other property
on the land ; Burr v. Woodrow, 1 Hush
602, 18 B. M. 541. But may if he choose
sue for land in one action and in another
for rents; if he unites both in same
action he can not in separate action sue
for rents, but may in separate action re-
cover for extraordinary expense such as
(6)
was not and could not have been set up
in action for land and rent. Walker v.
Mitchell, 18 B. M. 541.
(12) Libel and slander. Causes of action
for may be united. Hargan v. Purdy»
93 Ky. 424.
(13) Lienholders. Two or more may
unite in same action for the purpose of
enforcing their respective liens. Boyd
v. Jones, 8 R. 602.
(14) Officials— in pnbiicand private capac-
ity. An action can not be maintained
against oiiScers of a municipal corpora-
tion in both their official and private
capacity for the same injury. Hancock
V. Johnson, 1 Met. 242.
(15) Order of delivery— enforcement of
mortgage. Petition seeking to recover a
debt, and to enforce mortgage lien to
secure its payment, and to obtain order
of delivery for possession of mortgaged
property, which had been subsequently
mortgaged to another, is a misjoinder of
actions. McKee v. Pope, 18 B. M. 548,
(16) Remote obligor in bond. The owner
of a slave hired her for a year to A and
B, and they hired her to C, taking from
C a covenant to A with D as surety
for the return of the slave. C caused
her death, and ran off. The owner and A
and B could maintain an action on the
covenant against D. Carney v. Walden,
16 B. M. 388.
(17) Slander— false imprisonment Action
for false imprisonment or malicious
arrest and slander "can not be joined.
Dragoo v. Levi, 2 Duv. 520.
(18) Splitting causes of action so as to
bring two suits in place of one will not
be allowed, and if it is done the court
should require the actions consolidated.
Powell V. Weiler, 11 B. M. 187; and see
Pilcher v. Ligon, 91 Ky. 228; Weinstock
V. Bellwood, 12 Bush 139.
(19) Trespassers. Joint or several judjr-
ments against; see Ky. Stat., sec. 12 ;
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JOINDER OF ACTIONS.
[title VI
4. For partition of real or personal property, or both ; or,
5. For injuries to character ; or,
6. For injuries to person and property. (And see as to actions for
trespass^ Ky, Stat.y sec. li.)
§ 84 [lit] Party may strike from pleadiof canse of action. A party may
strike from his petition, answer or reply any cause of action, before
the final submission of the case to the jury, or the court, if the
trial be by the court. {May dismiss without pryudice^ sec. S71^
§ 85 [lis] Court may require party to elect — may strike oat The court, at
any time before defense shall, on motion of a party, require the ad-
verse party to elect which of two or more causes of action, improp-
erly joined, he will prosecute ; and, upon his refusal so to elect, shall
strike out of the petition, answer or reply any cause of action im-
properly joined with another. {See further^ sec. US.)
§ 86 [114] Waiver of objection to misjoinder. Objections to the misjoinder
of causes of action are waived, unless they are made pursuant to
section eighty-five.
Alexander v. Humber, 86 Ky. 565; Cent.
Pass. Ry. Co. v. Kuhn, 86 Ky. 578.
(20) Vendees— to set aside ffrandnlent deed
to. In an action by an assignee in bank-
ruptcy to set aside as fraudulent several
conveyances made by the bankrupt, the
several fraudulent vendees may be joined
as defendants. Anderson v. Anderson,
80 Ky. 638.
(21) Warraoty — fraudulent concealment
Causes of action for growing out of same
transaction may be united. Gregg v.
Woods, 3 R. 526.
§ 84. Amended petition makinf misjoinder.
In an action on contract plaintiff filed an
amended petition setting up and relying
on fraud in obtaining contract. Held,
that plaintiff might in an amended peti-
tion set up action that could not be
joined with action In petition, and thus
abandon his original action and rely on
that in amendment. Hord v. Chandler,
13 B. M. 403. But see sec. 113-4, and note
1 to sec. 85.
§85. (1) Amendment — objection to for
misjoinder. If an amended petition would
make a misjoinder of actions by setting
up a new cause, objection can be made
to its filing. Hancock v. Johnson, 1 Met.
242.
(2) Misjoinder— how objected to. Motion
to dismiss petition because there is mis-
joinder is not proper. Objection to
misjoinder should be made by motion to
elect. Hunt v. Semonin, 79 Ky. 270;
Humphrey v. Hughes, 79 Ky. 487.
(3) Motion to elect — duty of coart. If
causes of action be misjoined, plaintiff
may on motion be required to elect, and,
on failure, court should strike out one of
the causes misjoined ; if plaintiff then
refuse to proceed, the petition should be
dismissed. Dragoo v. Levi, 2 Duv. 520.
(4) Where the plaintiff refuses to elect,
the court should not dismiss the action,
but strike out the cause improperly
joined. Sheppard v. Stephens, 8 R. 603.
(5) One canse— but Irrelevant matter. No
election can be required if petition state
but one substantial cause of action, al-
though it may contain irrelevant and
redundant matter. Bonney v. Reardin,
6 Bush 34.
§86. (1) Misjoinder— waiver. Objection
for misjoinder must be made in circuit
court. McKee v. Pope, 18 B. M. 548; and
failure to make motion at proper time
operates as a waiver of objection. Wil-
son V, Thompson, 1 Met. 123 ; Caldwell
v. Caldwell, 2 Bush 446; 8 Bush 636; 79
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TITLE Vn] PLEADINGS IN GENERAL. 67
TITLE vn.
PLEADINGS IN CIVIL ACTIONS.
Chafteb I. Pleadings in obnbbal, 87.
IL Petition, 90.
in. Demurrer, 91.
IV. Answer— counter-claim— 8et-ofp^^ro8S-petition, 95.
V. Reply and additional pleadings, 98.
VL Time op pleading, 102.
vn. General RULES OP PLEADING, 110.
VIII. Mistakes in pleading and amendments, 129.
IX. Interrogatories, 140.
CHAPTER I.
PLEADINGS IN GENERAL.
i 87. Pleadings defined.
J 88. Form and suflSciency of.
J 89. Pleadings allowed.
§ 87 [ii»] Pleadinfs defined. Pleadings are statements by parties to an
action of their causes of controversy. {Caption of, sec. 110; ichat may
contairiy sec. IIS-S ; verification of and by whom, sees. 116,1 17; issue must
be formed, sec. 11 4-; token allegations confessed, W6; when must be proved,
126; what writings must, or may, be filed, 120, 128.)
Ky. 270; and waiver by filing answer proof, see sees. 129, 130, 131, and notes
remains although answer be withdrawn; thereto.
Chiles V. Drake, 2 Met. 146. (2) An allegation neither proved nor
(2) Misjoinder can aot five Jarisdictioo* admitted or a ground of defense not al-
Although misjoinder is waived by not ob- leged in the pleadings, although proven, is
jecting in time, yet such misjoinder can to be treated as if such allegation or de-
not give court jurisdiction over defend- fense did not exist. Wilkins v. Barnes,
ant summoned in another county, when 79 Ky. 323.
otherwise court would not have jurisdic- (3) Proof that a party introduces must
tion. Ransdall v. Shropshire, 4 Met. 326 ; not contradict what he alleges in his
see Maddox v. Williams, 5 R. 696 ; Basye pleadings to be true, he will not be per-
V. Brown, 78 Ky. 553. mitted to recover on a state of facts he
§ 87. (1) Ailegation aad proof. It is as says is not true ; he must amend bis
necessary to state a cause of action as it is pleadings. Payne v. Hardesty, 12 R.
to sustain it by proof. The absence of 336.
either prevents a recovery, Murrell v. (4) Coflstmctlon of pleadings. Before
McAlister, 79 Ky. 311, and the plaintiff verdict, pleadings will be construed
can only recover upon proof of the cause against the pleader ; after verdict, plead-
of action alleged in his petition. Gos- ings will be liberally construed to uphold
8om V. Badgett, 6 Bush 97 ; 1 Met. 339. the verdict, and a pleading insufilcient
As to variance between pleading and before verdict may be good after verdict.
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68
PETITION.
[title VII
§ 88 [ii«] Form and sufficiency of . The forms of pleadings, and the rules
by which their sufficiency is to be determined, are those prescribed
by this Code. {See as to rules of pleading^ sec. 110.)
§ 89 iiiTi Pleadings allowed. The pleadings allowed are —
1. Petitions, answers and replies, and such additional pleadings,
by way of rejoinder and rebutter, as may be necessary to form a
material issue of fact.
2. Demurrers.
CHAPTER II.
PETITION.
§ 90. Requisites of — prayer for relief.
§ 90 [lit] Requisites of — prayer for retief. The petition must state facts
Worthly v, Hammond, 13 Bush 510. See
Skillman v. Muir, 4 Met. 282; 16 B. M.
643; 10 Bush 185.
(5) Evidence — not to be Stated. It is not
sufficient to state the evidence relied on,
nor necessary to set forth evidence of the
truth of the facts relied on. L. & P.
Canal Co. v. Murphy, 9 Bush 522 ; Bent-
ley V. Bustard, 16 B. M. 643 ; 2 Met.
490.
(6) Pacts— how to be averred. The
facts relied upon should be directly and
positively alleged, and not stated by way
of argument, inference or belief. Pat-
terson V. Caldwell, 1 Met. 489 ; Garnett
V. Finnell, 2 Duv. 166 ; Walters v. Chinn,
1 Met. 499 ; 3 Met. 61. The failure to
state a material fact can not be obviated
by the statement of another fact that
raises ^a prima facie presumption of its
existence. Meguiar v. Henry, 84 Ky. 2 ;
1 Duv. 59; 11 Bush 693.
(7) Verdict Defects in pleadings that
are cured by. See note 10, sec. 95.
§ 8S. Forms but not snbstance abolished
by Code ; and every essential averment
required to make a declaration good at
common law must be made in the peti-
tion. L. & P. Canal Co. v. Murphy, 9
Bush 522 ; and see note to sec. 4.
§ 89. Pleadings allowed. The only plead-
ings allowed by Code of 1854, were the
petition, demurrer, answer, reply, set-otf
and counter-claim, and by act of 1857, a
cross-petition was allowed. Myers* Code,
sec 117.
§ 90. (1) Account Averment that ac-
count is just, due and unpaid is suffi-
cient. The debt could not be just if the
goods were not reasonably worth price
charged, and a promise is implied to pay
reasonable value from the sale and deliv-
ery of the goods at defendant's request.
Wood v. W^lls, 2 Bush 197 ; Thruston v.
Oldham, 6 Bush 16. Averment of sale
and delivery to defendant of goods worth
a certain sum, or the rendition of serv-
ices worth a certain sum, is sufficient to
authorize judgment by default; a prom-
ise to pay is implied. 8killman v. Muir,
4 Met. 282.
(2) A petition alleging in substance
that the defendant is indebted to plaint-
iff in the sum of $1,963 for goods bought,
the whole of which is due and unpaid, is
not good. There should be an averment
that the goods were sold and delivered to
defendant, or that they were sold upon
the promise of defendant to pay. Drake
v. Semonin, 82 Ky. 291.
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TITLE Vn]
PETITION.
which constitute a cause of action in favor of the plaintiff against
the defendant, and must demand the specific relief to which the plaint-
(3) Admiflistrator— «ftiflst It is not nec-
essary to allege that the debt sued for
was demanded of administrator, aocom*
panied by proper affidavit, before aotion
commenced. If demand has not been
made, it can be reached by rule. Rogers
V. Mitchell, 1 Met. 22 ; Thomas v.Thomas,
15 B. M. 178.
(4) AssMdt and bftttery. How aver-
ments asking special damages should be
set out. Jesse v. Shuck, 11 R. 463. Pe-
tition for must set out facts constituting
the assault. Stivers v. Baker, 87 Ky. 508.
(5) Asslsaec afaiflst aisigaor. In action
by assignee against assignor of a note it
is necessary to aver the consideration
paid for the assignment. Humphrey v.
Hughes, 79 Ky. 487 ; Ky. Stat., sec. 475.
And before he can recover he must in-
stitute his action against the payor at
the first term of the court and prosecute
him to insolvency without unreasonable
delay. Francis v. Gant, 80 Ky. 190.
(6) Attorney— afalnst In action against
attorney for money collected, demand
must be made before suit filed. Roberts
v. Armstrong, 1 Bush 263.
(7) Award— to set aside. To set aside
an award on the ground of fraud, the
specific acts of fraud relied on must be
averred. Phillips v. Phillips, 81 Ky.
147.
(8) Blaaks ia petitioa. Plaintiff, in
order to recover specified amounts, should
state the amounts, and not leave blank
places for them in his pleading. Jesse
V. Shuck, 11 R. 463.
(9) Bofld. In action on bond, the peti-
tion should set out the covenants of the
bond, and the breach of them relied on.
Mann v. Martin, 82 Ky. 242.
(10) In action on indemnifying bond,
the terms and stipulations of the bond
must be set out, as well as the breach of
it ; filing bond with petition, or referring
to it, is not sufficient. Riggs v. Maltby,
2 Met. 88; Campbell v. Galbreath, 12
Bush 459; 14 B. M. 252.
(11) Petition on injunction bond con-
ditioned to pay judgment enjoined, if in-
junction dissolved, is insufficient unless
it states that the judgment is unpaid.
Crawford v. Woodworth, 9 Bush 745.
(12) CoaitaUe — afaiflst. In action
against constable for money collected, it
is necessary to allege a demand and re-
fusal to pay. Harris v. Perry, 2 Bush
101 ; Huston v. Hagar, 1 Duv. 24.
(13) Coatnct— for breach of. The breach
of a contract is an essential part of the
cause of action, and should be assigned
in the words of the contract, or in words
which are co-extensive with the import
and effect of it. The rules of pleading
which require that the contract shall be
substantially set out, as well as the
breach of which plaintiff complains, are
fundamental, and have not been changed
by the Code. Moxley v. Moxley, 2 Met.
309 ; 8 B. M. 377. In an action for dam-
ages for breach of contract, where the
agreements are mutual and dependent,
and each is to perform his part at the
same time, the petition must aver that
plaintiff was ready to perform his part
of the agreement at the time and place
required. Sousley v. Burns, 10 Bush 87 ;
13 B. M. 464. But the averment of readi-
ness to perform is only necessary where
the acts to be done are concurrent, and is
not required where the defendant is to
pay money or perform some act before
plaintiff is bound to do anything. H. &
N. R. R. V. Leavell, 16 B. M. 358. It is
necessary to state the contract, the
breach and the facts which show the loss
or damage by reason of the breach. Miles
V. Miller, 12 Bush 134 ; and see Lewis v.
Scott, 95 Ky. 484, for necessary allega-
tions in petition by servant against mas-
ter to recover damages for wrongful dis-
charge.
(14) Creditor against assifaee. A creditor
can not maintain an ordinary action
against an assignee to whom his debtor
has made an assignment, and recover
judgment for his debt. Dobyns v.
Dobyns, 79 Ky. 95.
(15) Defects cared by aaiwer— verdict
See note 10 to sec. 95.
(16) Defense need not be anticipated. It
is not necessary to notice and remove
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PETITION.
[title vn
iff considers himself entitled; and may contain a general prayer for
any other relief to which the plaintiff may appear to be entitled. K
objections that may exist and can be
relied on for defense. L. & P. Canal Co.
V. Murphy, 9 Bush 522; Shelby ville
Trustees v. S. & E. T. P. Co., 1 Met. 54 ;
Bentley v. Bustard, 16 B. M. 643.
(17) Dower. In action by widow
against purchaser from her husband to
have dower allotted, the petition did not
aver that her husband was the owner of
the land during coverture, nor that she
was his wife when purchase was made
by defendant, and was not good. Yancy
V. Smith, 2 Met. 408; see Fritz v. Tudor,
2 Duv. 173.
(18) Exhibitg filed which contradict
averments of petition must control. Ky.
Mut. Ins. Co. V. Logan, 00 Ky. 364;
Boyd V. Bethel, 10 R. 470; but in deter-
mining the sufficiency of a pleading an
exhibit neither aids nor destroj'S. Green
V. Page, 80 Ky. 368.
(10) Quaraety. When notice of the
acceptance of an offer of guaranty is re-
quisite in action on guaranty, the allega-
tion of notice in the petition should be
special, to enable the court to determine
whether or not it is sufficient. General
averment **of all of which defendant
had notice " is not sufficient. Steadman
V. Guthrie, 4 Met. 147.
(20) Quardian's settlement— to snrcharKe.
In action to surcharge settlement of
guardian, the petition must specify the
particular items objected to. Tanner v.
Skinner, 11 Bush 120; Fielder v. Har-
bison, 03 Ky. 482.
(21) Heir for debt of ancestor. To make
the heir responsible for debt of ancestor
it must be alleged that he received assets
from ancestor. Massle v. Hiatt, 82 Ky.
314 ; 10 Bush 234 : t6. 441 ; 80 Ky. 152.
As to proper averment that one is heir,
see Montgomery v. White, 10 R. 005 ;
7 Bush 51 ; and 18 B. M. 72.
(22) Hnsband— for debt of wife. In ac-
tion by husband to recover debt made by
wife before marriage, it is not necessary
to allege that the husband received
property by the wife. Beaumont v. Mil-
ler, 1 Met. 68 ; Fultz v. Fox, 9 B. M.
490; Medley v. Tandy, 85 Ky. 666; and
see Ky. Stat., sec. 2130 ; 88 Ky. 108.
(23) Indorsers of note. In action upon
a note executed to plaintiff by D, payable
in bank and indorsed In blank by F, N
and C before its delivery, whereby, as al-
leged, they ** intended to be equally
bound as obligors," it was not alleged
that they indorsed the note as accommo-
dation indorsers, or with the view of
having it discounted in bank, or for the
purpose of guaranteeing its payment.
Petition held not good against indorsers.
Kellogg V. Dunn, 2 Met. 215.
(24) The presumption is that a note in
the hands of the maker of it, indorsed by
the payee, has been paid, and one to
whom the maker has discounted it can
not recover against the indorser without
averring that it was indorsed for maker's
accommodation. Callahan v. First Nat.
Bank, 78 Ky. 604.
(25) Interest To recover interest ac-
cruing anterior to the institution of the
action on an unliquidated account, it is
necessary that plaintiff should ask for
that character of relief. Adams Express
Co. V. Milton, 11 Bush 40.
(26) Interest is allowable as a matter
of law upon an account from the time
when, by the contract, it is payable, or
from the time it becomes a liquidated
one. Henderson Mfg. Co. v. Lowell M.
S., 86 Ky. 668.
(27) Judfments. In action on foreign
judgment, it is necessary to allege facts
showing that the court rendering the
judgment had jurisdiction of the sub-
ject matter and the person of the defend-
ant. Gebhard v. Gamier, 12 Bush 321 ;
Wood V. Wood, 78 Ky. 624 ; 10 Bush 160 ;
12 Bush 274. As to pleading judgment
of court of this State, see sec. 122.
(28) Law of another State, when de-
pended upon, must be pleaded as any
other fact, so that the court may judge
of the effect of the law. Roots v. Merri-
wether, 8 Bush 307 ; Bidwell v. Robin-
son. 70 Ky. 20.
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TITLE VIl]
PETITION.
71
no defense be made, the plaintift* can not have judgment for any re-
lief not specifically demanded ; but, if defense be made, he may have
(29) Legal concluiofl. Averment that
defendant extorted and obtained three hun-
dred dollars from plaintiff without any
consideration, and was therefore in-
debted to him in that amount, is merely
a legal conclusion, and petition is not
good. Murphy v. Estes, 6 Bush 532. See
1 Duv. 30 ; 4 Met. 327 ; 87 Ky. 508.
(3(9 Lefislatiire lo power to prescribe fom
of pleading that dispenses with allega-
tions of essential facts, or cuts off sub-
stantial defenses. City of Louisville v.
Cochran, 82 Ky. 15 ; Meguiar v. Henry,
84 Ky. 1.
(31) Marriage contract Where no time
and place are agreed upon for the consum-
mation of the marriage, no action can be
maintained by either party for failure to
perform, unless plaintiff aver an offer to
perform and a failure of the defendant
to comply. Fible v. Caplinger. 13 B.
M. 464 ; and see Shakleford v. Hamilton,
03 Ky. 80.
(32) Misaomer of defendaat A party
who makes defense to an action can not
afterward set up that he was sued by
wrong name, and thereby defeat recovery
by plea of limitation. Heckman v. L. «&
N. R. R. Co., 85 Ky. 631, and see L. & N.
R. R. Co. V. Hall, 12 Bush 131.
(33) Moaey had and received. Averment
that defendant received $400 for the use
of plaintiff, and thereby became indebted
to him, and had paid no part of it, is in-
suflScieDt. The facts showing how it
was received, such as created an indebt-
edness, must be alleged. Faught v. Henry,
13 Bush 471.
(34) Neflifeace. It is sulflcient in ac-
tion for personal injury to allege in gen-
eral terms that the Injury complained of
was caused by the carelessness and negli-
gence of the defendant. Chiles v. Drake,
2 Met. 146 ; L., C. & L. R. R. Co. v. Case, 9
Bush 728. It is not necessary to allege
that there was no contributory negli-
gence on the part of plaintiff. L. <& P.
Canal Co. v. Murphy, 9 Bush 522 ; P. &
M. R. R. Co. V. Hoehl, 12 Bush 41 ; 80
Ky. 82 ; 10 Bush 263; 84 Ky. 330.
(85) Petition to recover for injury aris-
ing from negligence or want of skill
should state such facts as would author-
ize an action in case at common law;
and, if for an injury done with force,
such facts as would authorize action in
trespass. Kountz v. Brown, 16 B. M.
577.
(36) In an action under sec. 4, Ky.
Stat., it is necessary to aver that killing
was not done in self-defense. Becker v.
Crow. 7 Bush 198 ; 13 Bush 636.
(37) New promise. Action on new prom-
ise to pay an account is sufBcient when the
petition sets out the sale and delivery of
the goods itemized in the account, and
the promise to pay the amount due with-
in two years before suit. Adams v.
O'Rear, 80 Ky. 129.
(38) Note aot aiticoed. Plaintiff can not
maintain an action on a note averring
that it was executed to himself when
the note was executed to another person,
and not assigned to plaintiff, and no al-
legation as to how he obtained it. Dodd
V. King, 1 Met. 430 ; Haney v. Tempest,
3 Met. 95 ; 1 Bush 70.
(39) Note payable to two persons, neither
has a separate right of action upon it
without an averment of assignment from
his co-payee. Quisenberry v. Artis, 1
Duv. 30.
(40) Nuisance. Although nuisance be
public in its nature, an individual may
recover damages caused by reason of it,
if he allege and prove special injury to
himself. Corley v. Lancaster, 81 Ky. 171.
(41) Obliforin name of oblJfee. One of
several joint and several obligors may
pay off the note, and, by agreement with
the obligee, reserve the right to sue the
other obligors in the name of the obligee.
Smith V. Latimer, 15 B. M. 75.
(42) Parties— names of to be stated. The
full names of all the parties, plaintiff and
defendant, and the fiducial or other char-
acter in which they sue, or are sued,
should be stated in the body of the peti-
tion; and, if partners, the full name of
all the members of the firm should be
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PETITION.
[title VII
judgment for other relief, under a prayer therefor. {Forms of peti-
tions in various actions^ pages 596-616; may be amended^ sees. 109 j
132, 134.; verification of, sees. 116, 137.)
stated. Newman's Pleadings and Prac-
tice, pages 218, 287; Quinn v. N. N. «& M.
V. Co., 15 R. 74.
(43) PartoereUp lettlemeot — to correct
After the settlement of a partnership, in
an action by one of the partners attack-
ing it for fraud or mistake, he must
allege the specific act of fraud or the
particular mistake relied on. A general
averment of fraud and mistake is not
sufficient. Loesser v. Loesser. 81 Ky. 139.
(44) Petition — provisiotts conceminf. A
pleading may contain as many causes of
action, legal and equitable, as there may
be grounds for on behalf of the pleader
(sec. 113-2); but, if more than one, each
one must be stated in a separate, num-
bered paragraph (sec. 113-8). The state-
ments of the pleading must be consistent,
and not inconsistent, with those of any
other pleading previously filed by the
same party, unless he allege in the alter-
native the existence of one or another
fact, and state that one, but which one
he does not know, is true (sec. 113-4).
The pleading must be signed by the party
or attorney (sec. 115), and need not state
facts of which judicial notice is taken,
or the evidence (sec. 119-1). Private
statute, how i)U»aded (sec. 119-2), and
judgment of court (sec. 122).
(45) Petition must contain in its own
body and not merely by reference to an-
other paper a statement of the facts
constituting the cause of action. Corbin
V. Oldham, 1 R. 327.
(40) The petition must state in ordi-
nary and concise language the facts
constituting the cause of action, and
every fact necessary to enable the plaint-
iff to recover must be alleged, and every
essential averment required to make a
declaration good at common law must be
stated. The facts must be so alleged
as to enable the opposite party to know
what is meant to be proved, and also that
an issue may be formed in regard to the
subject matter in dispute and to enable
the court to pronounce the law upon the
facts as stated. L. & P. Canal Co. v.
Murphy, 9 Bush 522; Stivers v. Baker, 87
Ky. 508 ; 14 B. M. 83 ; 7 Bush 532 ; 6
Bush 532.
(47) Prayer of petition. The petition
stated the amount of claims sued on, and
prayer was for judgment for the amount
of said claitna, with interest due on each.
Held sufficient to entitle plaintiff to
judgment for claims and interest. Har-
ris V. Perry, 2 Bush 101; and see fur-
ther as to prayer for relief, 80 Ky. 529 ;
80 Ky. 371.
(48) The body of petition and prayer
must be consistent, and the prayer for
general relief must be consistent with
that specifically prayed for. Crow v. O.
& N. R. R., 82 Ky. 134.
(49) A party is not entitled to relief
that he does not ask for in his pleading.
Radford v. Southern Mutual Insurance
Co., 12 Bush 434 ; Rowland v. Brown, 13
Bush 681; 11 Bush 49.
(50) In an action to enforce a mortgage
lien the prayer was, ** Wherefore plaint
iff prays that the mortgage be foreclosed,
and for all other proper relief," no de
fense being made it was error to render
a personal judgment. Hansford v. Hoi-
dam, 14 Bush 210.
(51) Prayer of petition in action to en
join collection of judgment ** for all
proper relief" did not authorize judg-
ment against defendant for amounts
plaintiff claimed to be entitled to. Walker
v. Thomas, 88 Ky. 486 ; and see further
as to relief that may be granted under
prayer for ** general relief," Lillard v.
Brannin, 91 Ky. 511 ; 80 Ky. 529 ; 80 Ky;
371. Alternative relief, see 9 R. 166.
(52) Precedent coaditioa. At common
law the pleader was required not only to
aver the performance of the condition
precedent, but to state the time and
manner of its performance. This rule
was changed by sec. 149 of Code of 1854.
Sec. 149 is omitted from this Code, and
its omission lestores the common law
rule. Averbeck v. Hall, 14 Bush 506;
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DEMURRER.
78
CHAPTER m.
DEMURRER.
{91.
i 02.
g 93.
; 94.
§ f 1 [ISO. isii Special and feoeral. Demurrers are special or general.
Special and general.
Special defined — wairer — costs.
General defined— costs.
Amendment after demurrer— costs.
{Form of, page 616.)
Ormsby v. City of Lou., 79 Ky. 197. The
petition must aver the performance of
all conditions precedent in the contract
when the liability of defendant depends
on their performance. Without such
averments, no cause of action exists.
Prye v. L. & B. S. R. R. CJo., 3 Met. 814 ;
Escott V. White, 10 Bush 169.
(53) PrMBi88«ry note. A petition founded
on a note must so set out the promise,
its terms and its breach as to enable the
court to render a judgment by default
without being compelled to resort to the
note on file ; a promise or agreement to
pay must be averred or petition will not
be good. Huffaker v. Nat. Bank of
Monticello, 12 Bush 287 ; see Hibler v.
Shipp, 78 Ky. 64. In Totten v. Cooke, 2
Met. 275, it is held that the failure to
state date of note sued on and filed with
petition does not make petition defective,
if it state amount of note, time it is pay-
able and aver that defendant is indebted
in amount of note naming it, and see
Burton v. White, 1 Bush 9. The acci-
dental omission of the words **the de-
fendants,** the subject of the verb
** agreed,*' is not a substantial defect.
** The omission of those things which
are silently expressed is of no conse-
quence.** Warfield v. Gardner. 79 Ky.
583 ; and see Hibler v. Shipp, 78 Ky. 64.
(54) The petition must state when
note falls due, or so specify dates that
the fact may be ascertained without
going outside the pleading. Corbin v.
Oldham, 1 R. 327.
(55) Slaader. In action for slander, it
is necessary to set forth the specific
words complained of ; it is not sufficient
to state the effect of the words. Taylor
V. Moran, 4 Met. 126. And it is neces-
sary to aver that the words were spoken
maliciously. Williams v. Gordon, 11
Bush 693.
(56) Splittiflg caose of actioa not allow-
able, and where one has sued for part of
an entire demand he will not be allowed
to sue for remainder in another action.
Pilcher V. Ligon, 91 Ky. 228; Weinstock
v. Bellwood, 12 Bush 139; Powell v.
Weiler, 11 B. M. 187.
(57) Surety agaiast co-tarety. Action
can not be maintained by one surety
against a co-surety unless the principal
is insolvent, and this fact must be averred.
Boiling V. Doneghy, 1 Duv. 220 ; Lee v.
Forman, 3 Met. 113.
(58) Surety afaiast priacipal. In action
by surety against principal to recover
money paid for him the petition alleged
that the note was paid in full by plaintiff
as surety, and that no part of it had been
repaid by defendant. The petition set
out a good cause of action on the implied
promise. Bridges v. Reed, 9 Bush 329.
(59) Tavera keeper— to eoforce Ilea on
tiagfage. The petition must allege that
plaintiff is a tavern keeper. Allegation
that he ** is a landlord, proprietor of the
Myers House," is insufficient. South-
wood V. Myers, 3 Bush 681.
(60) Tax title. Petition in action to
recover land under must allege that all
the statutory steps necessary to a valid
sale were taken. Jones v. Miracle, 14
R. 639 ; Durrett v. Stewart, 88 Ky. 665 ;
Com. V. Three Forks Coal Co., 95 Ky. 273.
(61) Title— to qaiet See Campbell v.
Disney, 93 Ky. 41.
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DEMURRER. [tITLE VIT
A special demurrer is an
§ 92 [ito. Ill] Special defined — ^waiver — costs.
objection to a pleading which shows —
1. That the court has no jurisdiction of the defendant or of the
subject of the action ; or,
(62) Tolls— to recover. In action by
turnpike company to recover tolls, the
petition must allege thatdefendant prom-
ised or agreed to pay tolls sued for.
Russell V. MuldraCigh HiU T. P. Co.. 13
Bush 307.
(63) Trespass. No one except the per-
son in actual possession can maintain an
action for trespass. Walden v. Conn, 84
Ky. 312 ; J., M. & I. R. R. Co. v. Esterle.
13 Bush 667. Actual possession not nec-
essary now to maintain action. See Ky.
Stat., sec. 2361.
(64) Veoilor's lien— to enforce. The peti-
tion must set forth the terms of the
contract, the character of title to be
made, and that the vendor is able and
willing to convey according to the con-
tract. Calvin v. Duncan, 12 Bush 101 ;
Williams v. Abrahams, 3 Bush 186 ; 79
Ky. 465 ; 78 Ky. 607, and should describe
land sought to be subjected. Lawless v.
Barger, 9 Bush 665 ; Runyon v. Darnall,
10 Bush 67.
(65) Writiof shonld be set oat If action
is founded on a writing it should be filed,
and so much of it set forth as will show
that the plaintiff by reason of alleged
acts or omissions on his part, and on
part of defendant, is entitled to relief;
the petition must contain in its own body
and not merely by reference to another
paper a statement of facts constituting
cause of action. Hill v. Barrett, 14 B.
M. 83 ; Murphy v. Estes, 6 Bush 532 ; 14
B. M. 252; 4 Met. 97.
(66) Writing filed with petition will
not cure defects in petition. Huffal<er
v. Nat. Bank of Monticello, 12 Bush
287 ; Gebhard v. Gamier, 12 Bush 321 ;
6 Bush 532 ; 14 B. M. 83 ; ib. 252 ; 4 Met.
97 ; 2 Met. 88 ; 80 Ky. 368.
(67) If petition does not aver that the
contract is in writing, or refer to any
writing, it will be presumed it is parol.
Byassee v. Reese, 4 Met. 371 ; Hocker v.
Gentry, 3 Met. 463 ; 15 a M. 443 ; 14
Bush 776.
(68) Upon undertaking to pay debt of
another, petition must show undertakings
was in writing. Smith v. Fah, 15 B. M.
443; Linn Boyd Co. v.'Terrill, 13 Bush
463; Smith v. Theobald, 86 Ky. 141.
§ 92. (1) Error as to proceediaf. That
action is brought in equity when it should
have been at law is not ground of demur-
rer. Trustees of Leb. v. Forrest, 15 B.
M. 168 ; 14 B. M. 348, it may be trans
ferred to proper docket, sec. 8.
(2) JorisdictioB. When court has no
jurisdiction of subject matter, the error is
not waived by failing to demur. Hughey
v. Sidwell, 18 B. M. 259 ; Fidler v. Hall,
2 Met. 461 ; Barton v. Barton. 80 Ky.
212. When the court has jurisdiction of
the subject matter, objection to the want
of jurisdiction over the person may be
waived. Hughes v. Hardesty, 13 Bush
364; 4 Bush 619; 80 Ky. 212.
(3) Parties— defect of. In action in the
name of A.J. Morrison & Co. on a note
executed to A. J. Morrison & Co., it does
not appear from the petition whether A.
J. M. & Co. is one person or a firm, and
demurrer will not lie. Morrison v. Tate,
1 Met. 569. If defect does not appear in
petition, it must be taken advantage of
by answer, or it will be waived. Sec.
118; 17 B. M. 598; ib. 642; 3 Met. 134;
3 Bush 200 ; 80 Ky. 684 ; 10 Bush 763 ;
and see notes to sec. 118.
(4) Specisl demorrer not necessary when
plaintiff has no right at all to maintain
action ; question can be raised by general
demurrer. L. & N. R. R. v. Brantley,
16 R.—
(5) Special demorrer— waiver. If legal
incapacity appear on face of petition,
and defendant fails to demur, it is waiver
of error. Petty v. Malier, 14 B. M. 246 ;
15 B. M. 584 ; 12 Bush 327 ; 80 Ky. 684 ;
79 Ky. 583.
(6) Two actions pendiBf. A brought
suit against B in the Wayne Circuit
Court to recover property, and the action
was transferred to Clinton county. While
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TITLE VIl]
DEMURRER.
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2. That the plaintiff has not legal capacity to sue ; or,
3. That another action is pending, in this State, between the
same parties, for the same cause ;sot;^
4. That there is a defect of parties, plaintiff or defendant.
Either of said grounds of objection, shown to exist by a pleading,
is waived, unless distinctly specified by a demurrer thereto, except
the objection to the jurisdiction of the court of the subject of the
action, which objection is not waived by failing so to make it; but
a party failing so to make it when or before he files a pleading,
other than a demurrer, is liable for all costs resulting from such
failure. {May be filed in vacation^ 109 ; may be made to part of plead-
ing, 113 ; ground of shown by pleading, 118.)
§ 93 [iti] 1. General defined — costs. A general demurrer is an objec*
tion to a pleading, because it does not state facts sufficient to consti-
pending in the court of latter county, A
brought suit in Wayne and obtained an
attachment for the same property. The
petition showed that the action in Clinton
was pending, and that the same property
was sought to be recovered in each. A
demurrer to petition in Wayne was prop-
erly sustained. Moore v. Sheppard, 1
Met. 97. "But action to enforce lien and
action on note secured by the lien may be
prosecuted at the same time. Julian v.
Pilcher, 2 Duv. 254.
(7) An action will not be abated on a
plea that there is an action pending
between the same parties on the same
debt in a court of another State. The
Code only applies to actions pending in
this State. Davis v. Morton. 4 Bush 442.
(8) Pendency of an action in a court
that has no jurisdiction does not prevent
institution of action in proper court.
Lou. Water Co. v. Clark, 04 Ky. 47.
(9) If when answer is filed another
action is pending between same parties
for same purpose, and this fact is relied
on in abatement, the plea may be relied
on at trial although the other action has
been dismissed. Gist v. Shean, 8 R. 509.
(10) Verificatioii— fflisjoioder. Objection
that petition not verified can not be made
by demurrer. Harris v. Ray, 15 B. M.
628; it should be by rule to verify. vNor
can misjoinder of parties be reached by
demurreri Dean v. English. 18 B. M.
133; see sec. 85.
§ 93. (1) Admissions by. Demurrer ad-
mits the truth of all facts well pleaded,
and every allowable and proper deduction
therefrom. Norman v. Ky. Board of
Managers, 93 Ky. 537; Morgan v. Bal-
lard, 1 Mar. 558; Bank v. Newport, 1 B.
M. 16; but exhibits referred to must be
taken into view as controlling any state-
ments inconsistent with them. Bush v.
Maderia, 14 B. M. 212 ; Collins v. Black-
burn, 14 B. M. 252 'r but see Green v.
Page, 80 Ky. 308, where it is held that ex-
hibits are not to be considered in deter-
mining the sufficiency of a pleading.
(2) The admission of facts by a de-
murrer is equivalent to proof by a witness
in open court. Francis v. Wood, 81 Ky.
16; but only facts well pleaded are ad-
mitted and not legal conclusions. Nor-
man V. Ky. Board of Managers, 93 Ky.
537.
(3) Answer— effect of. Defendant waives
all objection to petition by answering,
except objection to jurisdiction, and that
petition does not state cause of action;
and upon demurrer to answer, no objec-
tion to petition except these can be con-
sidered. Mitchell V. Mattingly.l Met. 237.
(4) After demurrer to petition is over-
ruled and answer filed, no objection to
petition is available, unless it amounts
to cause for arrest of judgment. Duncan
V. Brown, 15 B. M. 186.
(5) Where an answer is filed at same
time with demurrer, the fact that parties
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DEMURRER.
[title vn
tute a cause of action or a defense ; or, because it does not state facta
sufficient to support a cause of action or a defense.
2. Failure so to make such objection is not a waiver thereof, but
a party failing to make it when or before he files a pleading,
proceed to trial without noticing de-
murrer authorizes inference that demur-
rer was overruled or waived. D. L. <& N.
CJo. V. Stewart, 2 Met. 119.
(6) Filing answer and demurrer at
same time does not preclude defendant
from waiving right to trial upon merits,
and standing by his demurrer. Bridges
v. Reed, 9 Bush 329.
(7) Appearance eatered by. Defendant
by filing a general demurrer waives his
right to thereafter object to the jurisdic-
tion of the court over his person. Mc-
Dowell v. C, O. & S.W. R. R. Co., 90 Ky.
346; 95 Ky. 277; but does not by making
motion to quash return on summons or by
filing answer objecting to jurisdiction.
C, O. & S. W. R. R. V. Heath, 87 Ky. 651;
Barbour v. Newkirk, 83 Ky. 529.
(8) Coatribntory aeglect is a defense
which confesses and avoids the plaint-
iff's case, and as a rule must be afflrma-
lively pleaded, but where the petition
states facts showing that injury sued for
was caused by neglect of plaintiff it may
be reached by demurrer. Pavre v. L. &
N. R. R., 91 Ky. 541.
(9) Costs oa. The failure of a party to
demur at proper time does not render
him liable for costs unless he subse-
quently enters a demurrer. American
Wire Co. v. Bayless, 91 Ky. 94.
(10) Defects ia form. Defects in form of
pleading can only be reached by motion
to make averments more specific. Posey
v. Green, 78 Ky. 162 ; tb. 210. See sec.
134.
(11) Although petition fails to show
that party is entitled to the specific relief
asked, if it shows a right to any relief a
demurrer should not be sustained.
Foster v. Watson, 16 B. M. 377.
(12) Setting out several defenses in one
paragraph is not cause of demurrer ; the
objection can be reached by motion W>
paragraph. Williams v. Langford, 15 B.
M. 566; see sec. 113-3. And if one of
several paragraphs in an answer presents
a defense a demurrer should not be sus-
tained to it as a whole. Archer v. Nat.
Ins. Co., 2 Bush 226.
(13) Demarrer briagi all prevloas ptoadiafi
before the court, and judgment on the
demurrer should be against party who
committed first error. Wile v. Sweeney,
2 Duv. 161 ; Young v. Duhme, 4 Met.
239 ; Martin v. McDonald, 14 B. M. 544 ; 1
Met. 237 ; 79 Ky. 487.
(14) Jadgmeat oa demarrer—lMr. An or-
der sustaining a demurrer can not be ap-
pealed from unless a judgment follow it.
Alexander v. de Kermel. 81 Ky. 345 ; but
see Zable v. Orphans' Home, 92 Ky. 89,
(15) Judgment on demurrer, unless
petition states cause of action, is no bar
to future action alleging facts entitling
plaintiff to recover ; but he will not be
allowed, after setting forth a state of
facts in his petition, whether sufficient
or insufficient to authorize a recovery
after a general demurrer has been sus-
tained to his pleading and his action dis-
missed, to bring another action setting
forth substantially the same facts. Wool-
ley v. Lou. Banking Co.. 81 Ky. 527;
Birch v. Funk, 2 Met. 544; Thomas v.
Bland, 91 Ky. 1 ; 81 Ky. 16 ; ib. 345.
(16) Limitatloa. Demurrer to petition
upon ground that action is barred by
limitation can not be sustained unless
petition shows not only a sufficient lapse
of time, but the non-existence of any
ground of avoidance. Rankin v. Turne}',
2 Bush 555 ; Board v. Jolly, 5 Bush 86 ;
Chiles V. Drake, 2 Met. 146. But when
the petition shows that the action is
barred, and that plaintiff is not within
anj* of the exceptions contained in the
statute which save his right to sue, a de-
murrer will be sustained. Stillwell v.
Leavy, 84 Ky. 379.
(17) Mlsjoiader. That amended peti-
tion departs from cause of action is not
ground for demurrer. Motion to strike
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HTLB VU] ANSWER, COUNTBR-CLAIM, SET-OFF, CROSS-PETITION.
77
other than a demurrer, shall be liable for all costs resulting from
such failure. {May be fled in vdcatioriy sec. 109 ; may be made to
part of pleading^ sec. 113.)
§ 94 It] Amendflieot after demmrer — costs. If the court sustain the
demurrer, the party may amend the pleading, with leave of court;
but in all cases he shall pay the costs resulting from the demurrer.
CHAPTER IV.
ANSWER, COUNTER-CLAIM, SET-OFF. CROSS-PETITION.
§ 95. Answer — what it may contain.
§ 96. Counter-claim, set-off, cross-petition.
§ 97. Proceedings upon counter-claim, set-off, cross-petition-— caption.
§ 95 [it9J Answer — wlut it may contain. An answer may contain —
1. A traverse.
out is proper way to reach misjoinder.
Herd V. Chandler, 13 B. M. 402. See sec.
85, and sec. 113-4.
(18) Misoomer of writinf. The misno-
mer of writing sued on is not cause of
demurrer. Bradley v. Mason, 6 Bush
602.
vl9) Ob|ectiofl ia Coart of Appeals to suffl-
ciency of petition is confined to the point
that it does not state facts sufficient to
constitute a cause of action, and if the
issue in lower court was made by answer
or submitted to and tried by a jury, de-
fects in petition must be disregarded in
Court of Appeals. Davis v. Wiley, 3 R.
315.
(30) PetitioB how tested. On general de-
murrer to petition, its sufficiency should
not be tested by blending with its aver-
ments any matter of defense defendant
may have. Yewell v. Bradshaw, 2 Duv.
578; Macklin v. Trustees, 88 Ky. 592.
(21) Practice. A general demurrer to
an answer containing several paragraphs
is not good if either of the paragraphs
presents a defense, but upon a demurrer
to "each of the paragraphs" it is proper
to sustain it as to those that are defect-
ive. Sanford v. Lowenthall, 5 R. 206.
(22) Plaintiff filed two amended peti-
tions, and then defendant demurred to
''whole case;" this, though inartificial,
put in issue sufficiency of all facts set
out in petition and amendments. Miles
V. Collins, 1 Met. 308.
(23) Where the court erroneously sus-
tains a general demurrer it is proper
afterward to disregard the ruling. Steven-
son V. Flournoy, 89 Ky. 561; and al-
though a defendant does not demur to
the petition the court has a right upon
the final hearing to decide that no cause
of action is presented. American Wire
Nail Co. V. Bayless, 91 Ky. 94.
(24) When demurrer to answer is car-
ried back to petition, the petition is to be
considered without reference to answer or
exhibits filed with it, although a de-
murrer to petition has been overruled
before filing of answer. Macklin v.
Trustees, 88 Ky. 592.
(25) Special demarrer is not necessary
where plaintiff has no right at all to
maintain action ; objection can be made
by general demurrer. L. & N. R* R. v.
Brantley, 16 R.—
(26) Statate of fraads. When petition
shows want of necessary writing, it is not
necessary to plead statute of fraud; ques-
tion can be raised by demurrer. Linn
Boyd Co. V. Terrill, 13 Bush 463; Smith
V. Theobald, 86 Ky. 141.
§ 94. See notes to sec. 134.
§ 95. (1) Accord aad satisfactioa. To
make the plea good, it should be alleged
that the matter was accepted in satisfao-
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ANSWER, COUNTER-CLAIM, SET-OFF, CROSS-PETITION. [tITLB Vn
2. A statement of facts which constitute an estoppel against, or
avoidance of, a cause of action stated in the petition.
tion. Averment that the party agreed to
accept it iu satisfaction is bad pleading.
Johnson v. Hunt. 81 Ky. 321. See WiU-
iams V. Langford, 15 6. M. 566.
(2) Administrator asalutdlstribirtee. To
a suit brought on a note by an adminis-
trator against husband of distributee,
the answer stated that no distribution
had been made and asked to be allowed
to retain amount as advancement ; held
not good because it did not aver that ad-
ministrator had in his hands for distri-
bution an amount suificient to entitle
each distributee to a sum equal to
amount of note. Haggard v. Hay, 13 B.
M. 174.
(3) Amended petitloa. No answer is re-
quired to amended petition when the
denials of the answer to petition are suf-
ficient, and apply as well to the amended
as to the original petition. Robinson v.
Williamson, 7 Bush 604.
(4) Attaclimeat without caose. In action
for suing out an attachment without
good cause the answer was *' that the
grounds alleged by the defendant as con-
stituting the cause for its issual did in
fact, as he believes, exist and were true ;"
held insufficient. Mitchell v. Mattingly,
1 Met. 237.
(5) Coacinsions of law. In action to re-
cover homestead, statement in answer
that defendant is an ** innocent pur-
chaser " is merely a conclusion of law.
Wing V. Hayden, 10 Bush 276.
(6) In action against carrier for loss of
goods, averment in answer that accident
was unforeseen, inevitable or unavoid-
able, or that it was caused by dangers of
the river, are conclusions of law and not
good ; the facts should be stated. Bent-
ley V. Bustard, 16 B. M. 643.
(7) In action against sheriff for failing
to collect execution, answer stating that
all the property owned by execution de-
fendant was exempt from execution,
without averring that he was a house-
keeper with a family, is bad. Com. v.
Lay, 12 Bush 283.
(8) CoB]nnctlve deaiaL Denial in the con-
junctive is not good. Taylor v. Farmer,
81 Ky. 458 ; nor can two or more facts be
grouped together and denied ; each ma-
terial fact must be separately denied.
Preston v. Roberts, 12 Bush 570.
(9) Decedeat's estate. In suit for settle-
ment of an estate, creditor may file peti-
tion setting up his claim, and if claim
is controverted, has a right to demand
that it shall be done by answer, as in
other cases. Horner v. Harris, 10 Bush
357.
(10) Defective aliegatioas ia petitioa cared
by answer or verdict It is a settled rule
of practice that defective allegations of
the plaintiff's pleading may be supplied
and cured by the answer; and the doctrine
of the Code is that verdicts and judg-
ments which have been rendered upon
substantial issues of fact fairly presented
by the pleadings shall not be disturbed on
account of mere technical defects not
affecting the merits of the controversy.
CJode, sec. 134. Riggs v. Maltby, 2 Met
88; the failure to allege a fact that
would have rendered the petition bad
on demurrer will be cured by an answer
/ denying the existence of the fact. L. &
N. R. R. V. Lawson, 88 Ky. 496 ; Pugh
V. White, 78 Ky. 210 ; 78 Ky. 485 ; 78
Ky. 463; 13 Bush 601 ; 82 Ky. 291 ; but
if the petition fail to allege matter which
is essential to make out a cause of action
the defect will not be cured by answer.
Bogenschutz v. Smith, 84 Ky. 330;
Drake v. Semonin, 82 Ky. 291.
As to defects cured by verdict— ** The
rule is that when there is any defect, im-
perfection or omission, even of substance,
in a pleading which would have been
fatal on demurrer, yet if the issue joined
be such as necessarily required on the
trial proof of the facts so imperfectly
stated or omitted, and without which it
is not to be presumed the judge would
direct the jury to give, or that the jury
would have given, the verdict, such defect
or omission is cured by the verdict.*'
Drake v. Semonin. 82 Ky. 291 ; L. & P.
Canal Co. v. Murphy, 9 Bush 522; the
rule is that all ambiguities and uncer-
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TITLB VII.] ANSWER, COUNTER-CLAIM, SET-OFF, CROSS-PETITION.
79
3. A statement of facts which constitute a set-off or counter-claim.
4. A cross-petition. {Forms of answerSy pages 617-622; timeof fil^
tainties in pleadings will be construed
against the pleader before verdict, yet
after verdict pleadings will be liberally
construed to uphold it. Worthly v.
Hammond, 13 Bush 510 ; and see E. &
P. R. R. Co. V. Pottinger, 10 Bush 185 ; 10
Bush 169 ; but verdict will not cure fail-
ure to allege matter essential to make
out a cause of action. Bogenschutz v.
Smith, 84 Ky, 330 ; Drake v. Semonin,
82Ky. 291.
(11) Defeme by one that foes to merlti of
action presents defense for all. Rouse v.
Howard, 1 Duv. 31 ; Williams v. Rogers,
14 Bush 776.
(12) Defenaea to be pleaded. The Code
requires all defenses, equitable as well as
legal, to be pleaded to an action at law ;
and an equitable right available may be
lost unless thus litigated. Haokett v.
Schad, 3 Bush 353 ; sec. 113-2.
(13) Denial of kaowledge or laformatioii.
Want of knowledge or information suf-
ficient to form a belief is not sufficient
denial of the alleged presentation, de-
mand, refusal of payment and protest of
a bill, when the bill showing these facts
is filed with petition. Gridler v. F. and
D. Bank, 12 Bush 333 ; ib. 287. Nor is
denial that note was duly protested, or
that party received legal notice of pror
test, sufficient. 7 Bush 474 ; 12 Bush
287. Denial of knowledge or information
by a personal representatl ve'is equivalent
to a direct denial. Drake v. Semonin,
82Ky.291.
(14) When the record as made up
when plea is filed furnishes the necessary
information, or when the fact is neces-
sarily within the personal knowledge of
the party, the plea of want of knowledge
or information is not good. Barrett v.
Godshaw, 12 Bush 592 ; id. 333 ; Augus-
tus V. Holt, 13 R. 8.
(15) Denial of knowledge sufficient to
form a belief is not good ; it should be a
denial of any knowledge or information.
Trustees v. Fleming, 10 Bush 234; and
see C. <& 8. R. R. Co. v. Gray, 10 R,
292.
(16) That defendant ** knows nothing
on the subject of his own knowledge " is
not sufficient. Terrill v. Jennings, 1
Met. 450. That defendant has **no
knowledge of any of the facts set up in
the petition, and no means of forming a
belief, and therefore denies them all and
requires proof," is not good denial. Cor-
bin V. Ck)m., 2 Met. 380. Statement that
defendant does not admit certain facts
and calls for proof, or does not owe debt
sued for, is not sufficient denial. Clark
V. Finnell, 16 B. M. 829. See Hutchins
V. Moore, 4 Met. 109 ; and answer which
merely denies ** each averment of the
petition " is no answer at all. Evans v.
Evans, 93 Ky. 510.
(17) An answer to suit for goods sold
-and delivered, denying *' that defendant
is, to the best of his knowledge and
belief, indebted to the plaintiff as stated
in petition,*' is insufficient. Francis v.
Francis, 18 B. M. 57 ; 8 Bush 583. Nor
is a denial that defendant is indebted as
alleged, or that account is just, sufficient.
Thruston v. Oldham, 6 Bush 16.
(18) It is only where the allegations of
the petition are not necessarily within
the knowledge of the party charged, that
this character of denial is good ; as
where the party is sought to be made
liable for the action or misconduct of
others, or where some fact is asserted
that defendant could not say whether it
is true or false. Wing v. Dugan, 8 Bush
583 ; 12 Bush 608. Questions of law can
not be denied by a statement of want of
knowledge or information sufficient to
form a belief. Ky. Nav. Co. v. Com., 18
Bush 435 ; 83 Ky. 410.
(19) In action against carrier for
neglect in carrying goods a specific
denial of its negligence is necessary.
N., C. & St. L. R. R. V. Carrico, 95 Ky.
489.
(20) Denial of title. When a vendor
sues to enforce an executory contract,
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AN8WEE, COUNTER-CLAIM, SBT-OFF, CROSS-PKTITION. [TITLE VH
ing^ sees. 102 ^ 104; may be filed in vacaiioUj sees. 107^ 108 ; traverse de-
fined J sec. US; what allegations must be traversed^ sees. 126.)
averring that he is able, ready and will-
ing to convey title, and tenders convey-
ance, vendee must aver he has no title ;
or, if it is defective, must point out
defects. Logan v. Bull, 78 Ky. 607.
(21) In an action on a note executed
for price of a slave, statement in answer
"that the vender had no title 'and had
not and could not make any title " does
not present a defense, as it fails to aver
any warranty of title. Patrick v. Swin-
ney, 5 Bush 421.
(22) Ffaad. Answer averring that
writing sued on was obtained, or its
execution procured, by fraud, misrepre-
sentation and covin, without specifically
averring the facts constituting the fraud,
is good. Evans v. Stone, 80 Ky. 78;
Whitehead v. Root, 2 Met. 584.
(23) Qeoeral deniaL To a suit for $620,
balance due for merchandise, without
any specification of articles sold, de-
fendant answered, denying!: that she was
indebted in more than $500. Held good
defense to all over $500. If petition, or
account filed with it, specified items,
answer would not be good. Webb v.
Jeffries, 2 Bush 321.
(24) Answer to a suit on a note denying
that defendant owes the debt, or any
part of it, is not good. Haggard v. Hay,
13 B. M. 174. Answer denying that de-
fendant is indebted as alleged, or that
the account is just, is not good. Thrus-
ton V. Oldham, 6 Bush 16.
(25) Denial of the correctness of each
and every item of the account sued on is
insufficient. Whi taker v. Sandifer, 1
Duv. 261 ; and see Baum v. Winston, 3
Met. 127. To present good denial, an-
swer should controvert separately and
specifically each charge made in the pe-
tition. Morgan v. Booth, 13 Bush 480.
(26) iKOiisisteat defeoses. Party may
plead as many defenses as he has ; pro-
vided they are not inconsistent, sec. 113-4.
In an action for slander defendant can
not in one paragraph deny, and in an-
other one admit, the speaking, and
justify. Rooney v. Tierney, 82 Ky. 253.
It was otherwise under Code of 1854 ; see
10 Bush 447.
(27) lafucy. Statement in answer that
'* at the time of the execution of the note
sued on defendant was an infant under
the age of twenty-one years,*' is a good
plea of infancy. Stem v. Freeman, 4
Met 308.
(2^ Lefislatare m power to prescribe
form of answer that cuts off substantial
defenses by limiting defendant to certain
defenses. City of Lou. v. Cochran, 82
Ky. 15 ; Meguiar v. Henry, 84 Ky. 1.
(29) Linitatioii. Statute of limitation
must be pleaded, although action be ap-
parently barred, unless the petition shows
the non-existence of every ground of
avoidance. Chiles v. Drake, 2 Met. 146 ;
5 Bush 86 ; 2 Bush 555. But when peti-
tion shows that action is barred and that
plaintiff is not within any of the excep-
tions contained in the statute, question
can be made by demurrer. Still well v.
Leavy, 84 Ky. 379.
(30) Misaomer of defeadAat As to effect
of when defendant enters appearance.
See Heckman v. L. & N. R. R. Co. 85
Ky. 631 ; L. & N. R. R. Co. v. Hall, 12
Bush 131.
(31) No coasideratlon. Plea that a note,
bond or other like instrument was given
without any consideration is good.
Evans v. Stone, 80 Ky. 78 ; and see Coyle
v. Fowler, 3 J. J. M. 472.
(32) Nod est fectmn. Plea of non est
factum must be made in affirmative lan-
guage and sworn to. Trustees v. Flem-
ing, 10 Bush 234 ; Dugan v. Harris, 6 R.
596 ; see Ky. Stat., sec. 473.
(33) Under general plea of non est fno-
turn, a question as to the conditional
signing and delivery of a writing can not
be considered ; it must be specially
pleaded. Hall v. Smith, 14 Bush 604.
(34) Nnl tiel record. Plea of nuZ <t«/ rec-
ord is not ^ood in an action in this
State on the judgment of a justice of the
peace of another State. McElfatrick v.
Taft, 10 Bush 160.
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TITLB Vn] ANSWER, COUNTER-CLAIM, 8BT-0PP, CfROSS-PBTITION.
81
§ H [ISC. 1S8] Conoter^laiiii, set-off, cross-petHkNi. 1. A counter-claim is a
cause of action in favor of a defendant against a plaintiff, or against him
and another, which arises out of the contract, or transaction, stated in
(35) Statote of frauds. It is not neces-
sary to answer and rely on the statute
of frauds when petition shows want of
necessary writing ; question can be made
by demurrer. Linn Boyd Co. v. Terrill, 18
Bush 463; Smith v. Theobald, 86 Ky. 141.
(36) Taxes. Setoff is not allowable
against demand for taxes unless expressly
authorised by statute. Anderson v. City
of Maytleld, 03 Ky. 230.
(37) TraTerit. Every material allega-
tion of a pleading must, for the pur-
poses of the action, be taken as true,
unless specifically traversed (sec. 1^).
A material allegation is one which is
necessary for the statement or support of
a cause of action or defense (sec. 127).
A traverse is a denial of facts alleged in
an adverse pleading. See sec. 113-7; and
each material fact must be denied sep-
arately, it will not do to group two or
more facts together and deny them.
Preston v. Roberts, 12 Bush 570 ; Mor-
gan V. Booth, 13 Bush 480; nor is a
denial in the conjunctive good. 81 Ky. 458.
(88) An answer which merely denies
** each averment of the petition '* is no
answer at all. Evans v. Evans, 98 Ky.
510 ; nor is denial that defendant is in-
debted as alleged, or that account is
just, sufficient. Thruston v. Oldham, 6
Bosh 16.
%H. (1) CMoler^ialai. '* First, those
causes of action which arise out of the
contract set forth in the plaintifTs peti-
tion as the foundation of his claim;
secondly, those causes of action arising
oat of the transaction set forth in the
petition as the foundation of the plaint-
iff's claim ; and, thirdly, those causes of
aeiion connected with the subject of the
salt.*' Newman's Pleading and Practice,
page 602. Counter-claim is an action
{sec. 73S-34), and may be presented in
a reply against a aetofl (sec. 98-8).
The caption of the answer should contain
the words ** answer and counter-claim"
(sec. 97-4>. Nutter v. Johnson, 80 Ky.
426 ; Oason v. Cason, 79 Ky. 568. The
only restriction the Code makes as
to a counter-claim is, that it shall
be a cause of action arising out of
the contract or transaction set forth in
the petition as the foundation of plaint-
iff's demand ; or that it be connected
with the subject of the action. It is not
required that the counter-claim itself
shall be founded in contract or arise out
of the contract set forth in the petition,
but it is suiflcient that it arises out of
the transactions set forth in the petition
or be connected with the subject of the
action. Tinsley t. TInsley, 15 B. M. 454 ;
Forbes v. Cooper, 88 Ky. 286.
(2) Dismissal of actisfl without prejudice
does not prevent prosecution of counter-
claim, but it is too late after motion to
dismiss is entered to file counter-claim.
N. W. Ins. Co. v. Barbour, 96 Ky. 7;
and defendant is entitled to trial of
although plaintiff dismiss his action or
fail to appear. Sec. 872.
(3) Qsoeratty. A sold B a jack, and
gave him a covenant of warranty signed
by A and D. In a suit by A on the
note given for the price of the jack.
Held, that B could not make his answer
a counter-claim against D on the cove-
nant of warranty for a breach of it ; as
D was not a plaintiff, and as A pleaded
non est factum to the covenant and suc-
ceeded. Wells v. Boyd, 1 Duv. 366.
Under Code of 1854 counter-claim was
only allowed against plaintiffs.
(4) In an action for the contract price
of a bridge, the defendant can plead as a
counter-claim damages for the failure of
plaintiff to build the bridge according to
contract. Moore v. Caruthers^ 17 B. M.
669 ; 10 Bush 169.
(5) M agreed that if H, as surety for
L, would sign a note executed to him by
L, he would procure the signature of G
as co-surety. In a suit by M on the note,
H pleaded as a counter-claim the dam-
ages he sustained by the failure of M to
procure the signature of Q. Murphy v.
Hubble, 2 Duv. 247.
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82
ANSWBR, COUNTER-CLAIM, SBT-OFF, CROSS-PETITION. [TITLE VII
the petition as the foundation of the plaintiff's claim, or which is
connected with the subject of the action. {See farther^ sees, 99^ 37^)
(6) Purchaser of property at a sale by
administrators can not, in an action on
the note executed for the property, plead
as a counter-claim the conversion of part
of the property by one of the administra-
tors, after the sale, in his individual ca-
pacity. His remedy is by cross-petition.
Phillips V. Keifer, 2 Met. 478.
(7) In action by the mortgagor against
the mortgagee for taking possession of the
mortgaged property before debt due, the
mortgagee can plead as a counter-claim
the mortgage debt. Brown v. Phillips,
3 Bush 656.
(8) In action by a railroad company
on a subscription toward building the
road, the defendant may plead as a
counter-claim an agreement made at the
time of subscription, that any damage
done to his property by the road might
be set-off against subscription, and the
damage so caused is a valid counter-
claim. L. & N. R. R. Co. V. Thompson,
18 B. M. 735.
(9) In proceeding by mandamus to
compel a county court to levy a tax to
pay for a bridge, counter-claim can not
be set up to recover back, money paid on
bridge ; but may be maintained for de-
fective execution of the work as a defense
against balance due. Anderson Co. v.
Stone, 18 B. M. 848.
(10) L sued J on a promise to indem-
nify him as surety of H to recover
money paid as such surety. J pleaded
as a counter-claim that H had given L
a mortgage to secure him in part of the
money paid as surety, and asked that the
mortgage be foreclosed. Held not a good
counter-claim, not being connected with
the subject of the action. Jones v.
Letcher, 13 B. M. 363.
(11) In a suit by a widow for dower
against vendee of her husband, the ven-
dee can not, by counter-claim against the
heirs of the vender, recover on the war-
ranty. Hill V. Golden, 16 B. M. 551.
(12) G sold to C a mill and accounts
due ; one of the accounts being against
M, he required C to deduct from it $190.
In an action by G- against C to recover
the contract price, C pleaded as a
counter-claim the reduction made to M.
Cook V. Gray, 2 Bush 121.
(13) A sued B and obtained an at-
tachment. B controverted the grounds
of attachment, and made his answer a
counter-claim, claiming damages for
maliciously suing out attachment. Held
not a good counter-claim. Nolle v.
Thompson, 3 Met. 121.
(14) In action on foreign Judgment,
defendant can plead as a counter-claim
a cause of action dismissed for want of
prosecution, in the court where judg-
ment rendered. Rankin v. Barnes, 5
Bush 20.
(15) In action upon a note executed-for
an interest in a partnership, defendant
can plead as-a counter-claim damages re-
sulting to the business of the firm by the
fraud and dishonest conduct of the other
partners. Boughner v. Black, 83 Ky.
521.
(16) In an action for trespass to land,
the plaintiff averred title in himself ; the
defendant alleged that he was owner of
land, and sought by counter-claim to re-
cover it. Held that he could maintain
counter-claim. Whitlock y. Ledford, 82
Ky. 390.
(17) In an action for an assault, de-
fendant may plead as a counter-claim
damages fcfr an assault committed on
him by plaintiff at same time as assault
complained of in petition. Slone v.
Slone, 2 Met. 339.
(18) In an action on an injunction
bond to recover damages for being kept
out of the possession of land, the defend-
ant who had possession of the land dur-
ing pendency of injunction can plead, as
a counter-claim, any interference by
plaintiff which rendered the use of the
land less valuable to the defendant.
Tinsley v. Tinsley, 15 B. M. 454.
(19) In an action for trespass by A
against B, the purchaser of A*s land
under a void execution, B having paid
the execution debt, can not plead the
amount so paid as a counter-claim.
Geoghegan v. Ditto, 2 Met. 434.
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TITLB VIl] ANSWER, COUNTER-CLAIM, SET-OFF, CROSS-PETITION.
83
2. A set-off is a cause of action arising upon a contract, judgment
or award in favor of a defendant against a plaintiff, or against him
(20) In action by wife for divorce she
set up claim to a tract of land, her hus-
band answered and averred that through
mistake his name was omitted from deed
conveying land to wife and children, and
his answer asking to have deed reformed
was properly made a counter-claim
against wife and children. Grimes v.
Grimes, 88Ky. 20.
(21 ) PMoer wbeo sued for a firm debt has
the right to rely upon any counter-claim
that the firm could have asserted if
sued. McMasters v. Burnett, 92 Ky. 358.
(22) Requisites of. A pleading to be
treated as a counter-claim should con-
tain, not facts merely constituting a de-
fense, and pleaded as such, but should
present a cause of action in favor of de-
fendant, supported by every allegation
necessary to uphold an original petition
founded thereon. Bowen v. Sebree, 2
Bush 112 ; Davis, v. Dycus, 7 Bush 4 ; 4
Met. 57 ; ib. 110.
(23) Separate actios on. Party when
sued is not bound to set up by way of
counter-claim any claim he may have
against the plaintiff, but may, after
judgment against him, assert in a sep-
arate action his claim. Sec. 17; Em-
merson v. Herriford, 8 Bush 229 ; 1 Duv.
821 ; 2 Met. 92; 3 Met. 274.
(24) State— la actioa by. A party sued
by the Commonwealth can rely on coun-
ter-claim as a defense to defeat recovery,
but can not obtain judgment over on it.
Com. V. O. & N. R. R. Co., 81 Ky. 572;
Com. V. Todd, 9 Bush 708 ; 1 Duv. 86.
(25) Trial of. When a counter-claim is
relied upon, and there is an issue as to its
validity, if, upon the trial of this issue,
the jury should find damages in favor of
the defendants to an amount equal to
the demands of plaintiff, the finding
should be in favor of the defendants ;
and if they should find damages of a
less amount than the demands of plaint-
iff, they should give credit for this
amount, and find for plaintiff the re-
mainder. But if the defendants should,
in the opinion of the jury, be entitled to
nothing, then the plaintiff should have
judgment for his whole claim. Moore v.
Caruthers, 17 B. M. 669.
(26) Verificatioa of claim against dece-
dent's estate pleaded as a counter-claim
in action brought by personal represent-
ative is necessary, but demand is not.
Warfield v. Gardner, 79 Ky. 583.
(27) Wtrraaty— damages for breach of
may be relied on as counter-claim in an
action to recover price of article sold.
Garner v. Jones, 94 Ky» 135.
SET-OFF.
(1) Admlalstrator— dlttrlbntee. Adminis-
trator or heirs may plead as set-off against
distributee's interest his indebtedness to
the estate. Brown v. Mattingly, 91 Ky. 275.
(2) Aasisoee— against A set-off to be
available against an assignee must have
existed before notice of the assigpiment.
A debt or demand can not be used as a
set-off before it becomes due, and unless
it is due before notice of the assignment,
it is not available as a set-off against the
assignee. A surety until he pays the
money for his principal has no demand
against him which can be pleaded as a
set-off, even if the principal is insolvent.
Walker v. McKay, 2 Mel. 294 ; 1 Met.
112 ; and see Chenault v. Bush, 84 Ky. 528.
Henderson N. Bk. v. Lagow, 3 R. 173; nor
will a party who has notice that his note
has been assigned, although he may not
know to whom.be allowed to buy up claims
against assignor and set them off against
note. Small v. Browder, 11 B. M. 213.
(3) Aulfaineat of aote to be used as.
Defendant can plead as a set-off a note of
the plaintiff assigned to him under a
contract to use the note as a set-off, and
account to the assignor only for the
amount he can make in that way, and
reassign the balance remaining unpaid.
Graham v. Tilford, 1 Met. 112 ; Dorsey v.
Reese, 14 B. M. 157. But where a note is
so assigned, to be used as a setoff, a court
of equity, where the rights of others than
the party who owes the note intervene,
would be reluctant to sanction such a
speculation by aiding the party making
the venture to defeat an acknowledged
equity. Such contracts are not to be
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84 ANSWER, COUNTER-CLAIM, SET-OFF, CR08S-PBTITI0N. [tITLB VII
and another; and it can not be pleaded except in an action upon a
contract, judgment or award. {See farther^ sees. 97 y 37^.)
favored, but where the debtor alone is
affected, he will not be heard to complain.
Tinley v. Martin. 80 Ky. 463.
(4) Conmoowealtii— «ctioa by. In a suit
by the Commonwealth against a citizen^
the latter may by way of set-off make
such defense as will defeat recovery, but
can not get judgment over. Com. v. O.
& N. R. R. Co., 81 Ky. 572; 9 Bush 708;
and see Sinking Fund Comr. v. Northern
Bank, 1 Met. 174.
(5) The Commonwealth by its judg-
ment against the sheriff obtained a lieu
on the sheriff *s claim against his deputy ;
but if the deputy, as surety for the
sheriff, has been compelled to pay money
for him before the lien of the Common-
wealth attached, the sum so paid is a
valid set-off against the Commonwealth.
Harlan v. Lumsden, 1 Duv. 86.
(6) Co-sorety wtao pays eatlre debt may
plead the amount he is entitled to re-
cover from his co-surety as a set-off to an
action against him by the general as-
signee of said surety on a note executed
by him to such surety, although the debt
did not mature nor was it paid by him
until after the assignment. Chenault v.
Bush, 84 Ky. 528.
(7) Damafes onliqvidated. A demand for
unliquidated damages for breach of war-
ranty of the quality of a commodity for
which the note sued on was executed
may be relied on as a set-off against the
note when the vender is insolvent or a
non-resident. Forbes v. Cooper, 88 Ky.
285 ; Taylor v. Stowell, 4 Met. 175 ; and
see Boyd v. Day, 3 Bush 617 ; Adams v.
Craycroft, 1 R. 330. But where there is
an adequate remedy at law, and no facts
such as insolvency or non-residence are
shown, unliquidated damages, although
arising upon a contract, can not be
pleaded as a set-off. Gamer v. Jones, 9i
Ky. 135; Shropshire v. Conrad, 2 Met 1^.
(8) Decedent's estate— agaliut A claim
against a decedent pleaded as a set-off
must be verified and proved as claims are
required to be when sued on by original
action ; affidavit in body of petition is
not sufficient; no demand is necessary.
Warfleld v. Gardner, 79 Ky. 583. Dis-
tributee can not plead amount due him
as a set-off in a suit by the administrator,
in an action pending in county in which
administrator did not qualify. 3 Met. 322.
(9) In a suit by an administrator, the
defendant had a right to plead, as a set-
off, a demand due him by a decedent
whose estate plaintiff's intestate wrong-
fully appropriated. McKenzie v. Pendle-
ton, 1 Bush 164.
(10) If an administrator is charged in
the settlement of the e&tate with a note
taken as administrator, and afterward
sues on it, the obligor can set-off against it
an individual demand due by the admin-
istrator. Jones V. Everman, 15 B. M. 631.
(11) Dedicatioii off find by order of
county court to payment of certain debts
precluded sheriff from pleading as set-
off to suits by persons entitled to fund
amount due him on general acoount.
Gearhart v. Pritchard, 2 R. 225.
(12) Denaads must be oratoaL To au-
thorize a set-off, there must be mutual
subsisting demands at the oommence-
ment of the action. Hayes v. Goodwin,
4 Met. 80 ; 14 B. M. 133.
(13) Debt due by one member of a
partnership can not be set-off against a
claim due to the firm. Warder v. New-
digate, 11 B. M. 174.
(14) Administrator can not set-off debt
due to himself, against a debt due by the
decedent. Com v. Bosley, 5 Bush 221 ;
nor can a demand due by an intestate be
pleaded as a set-off to a bond given to
his administrator. Cummings v. Will-
iams, 5 J. J. M. 384.
(15) Receiver appointed by the court
can not retain funds collected, and pay
the person to whom the oottrt directs the
funds to be paid, in individual claims
held against him. Johnson v. Gunter, 6
Bush 534.
(16) Dismissal off actloa does not prevent
defendant from prosecuting set-off, but
after plaintiff has entered motion to dis-
miss petition without prejudice it is too
late to file set-off. N. W. Ina. Ca v.
Barbour, 95 Ky. 7 ; and if plaintiff dis-
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TITLE VII] ANSWER, OOUNTER-CLlUiy SET-OFF, CBOSS-PSTITION.
85
B A cross-petition is thecomraencement of an action by a defend-
ant against a co-defendant, or a person who is not a party to the
action, or against both ; ot* by a plaintiff against a co-plaintiff, or a
person who is not a party to the action, or against both ; and is
not allowed to a defendant, except upon a cause of action which
affects, or is affected by, the original cause of action; nor to a
misses his action or fails to appear defend-
ant may prosecute his set off. Sec. 37^
(17) Eqaitakle let-offf. A bank having
on deposit money due a depositor who
makes an assignment for the benefit of
creditors may apply deposit to payment
of debt due by depositor, although it is
not due when assignment is made. Ey.
Flour CJo. V. Merchants Bank, 90 Ky.
235 ; and see Masonic Bank v. Bangs, 84
Ky. 135 ; Chenault v. Bush, 84 Ky. 528.
(18) Ex delicto. In an action on a note,
the defendant has a right to waive an
action ex delieio, and plead as a set-off
the value of property wrongfully taken
by the plaintiff, and recover the value of
the property converted on an implied
promise to pay it. Eversole v. Moore, 3
Bush 49; Haddix v. Wilson, 3 Bush
523 ; and see Boyd v. Day, 3 Bush 617 ;
Adams v. Craycroft, 1 R. 330.
(19) Qcaerally. Where a housekeeper
with a family owns but one cow and sells
her to enable him to buy another giving
milk, the purchaser, knowing why the
cow is sold, will not be allowed to set-off
against the purchase price a debt due him
by the seHer. MuUiken v. Winter, 2
Duv. 256.
(20) In an action against the debtor of
a bank brought by commissioners in
whose hands the funds of the bank were
placed, the debtor can plead as a set-off
a claim due him from the bank at the
date of its assignment. Finnell v. Nes-
bit, 16 B. M. 351 ; and see Chenault v.
Bush, 84 Ky. 528.
(21) Where it is agreed that money
received, or to be received, is to go in
satisfaction of a particular demand, the
chancellor has power to enforce the con-
tract by decreeing the set-off. Lansdale
v. Mitchell, 14 B. M. 348.
(22) The trustees of a school being
personally liable to a teacher for the
amount of his salary, in action by one of
them upon a note, he could plead the
amount due him as teacher as a set-off.
Harrison v. Slone, 4 Bush 577.
(23) Two persons mutually indebted,
executed, each to the other, notes for the
amount of their indebtedness for the
purpose of raising money on the notes.
In a suit on one of the notes by an as-
signee, it was held that the payor could
not plead the note he held as a set-off.
Barbaroux v. Barker, 4 Met. 47.
(24) A purchaser of land under a void
execution who pays the purchase money
to the execution plaintiff can, in a suit
against him for trespass by the execution
defendant who is insolvent, set off the
amount so paid. Geoghegan v. Ditto, 2
Met. 433.
(25) In an action on a note the defend-
ant who was surety could plead as a set-
off the value of the principal's property
converted by the plaintiff as executor de
son tori. Finnell v. Meaux, 3 Bush 449.
(26) Set-off can only be pleaded in an
action on a contract. Brown v. Phillips,
3 Bush 656.
(27) A sheriff failing to return an exe-
cution in favor of a receiver, and against
the administrator of an estate, was sued
by the receiver for the amount of execu-
tion. Held that the sheriff could plead
as a set-off the amount paid by the ad-
ministrator to certain creditors for whose
benefit the receiver was collecting the
money. Com. v. Bosley, 5 Bush 221.
(28) On a void sale of infant's land the
purchaser paid the guardian $190. In a
suit to recover the land and rent, the
purchaser could plead as a set-off against
the rent the money so paid. Anderson v.
Layton, 3 Bush 87.
(29) An indorser paid a bill, and sued
the acceptor, who pleaded that ho ac-
cepted the bill for the sole benefit of the
drawer, who died insolvent, and that the
indorser was indebted to the estate of
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86
ANSWER, COUNTER-CLAIM, SET-OFF, OROSS-PBTITIOK. [tITLB VI r
plaintiff, except upon a cause of action which affects, or is affected
by, a set-oft or counter-claim. {In what pleadings counter-claim and
set-off allowed J sec. 111; trial of^ sec. 37S; judgment on^ sec. 387; in
what pleading cross-petition allowed^ sees. 111, 69^.)
the drawer in the amount of the bill.
Held a good set-off. Bowman v. Wright,
7 Bush 375.
(30) A party proceeded against to re-
cover money paid on a judgment that
has been reversed may plead as a set-off
a demand against the claimant if he is
insolvent or a non-resident. Carson v.
Carson, 2 Met. 96.
(31) LimitatloD. Limitation against set-
off ceases at commencement of action.
Hayes v. Gkxxiwin, 4 Met. 80.
(33) Note payable io another State, and
by the laws of that State placed upon
the footing of a bill of exchange, is not
subject to set-off in this State in hands of
an innocent holder. Stevens v. Gregg,
89 Ky. 461 ; overruling Davis v. Morton,
5 Bush 160.
(33) PleadiBf— practice. All objections
to matter pleaded improperly as a set-off
are waived by replication and issue.
Boyd V. Day, 3 Bush 617. Answer pre-
senting merely matter of defense can not
be treated as a set-off, though it may be
so called. True v. Triplett, 4 Met. 57.
(34) The pleading intended as a set-off
must be so designated in the caption.
Sec. 97-4. The word action embraces a
set-off. Sec. 732-34 ; 79 Ky. 583.
(35) When a set-off is relied on in an
answer, which is also made a cross-peti-
tion against parties not before the court,
the plaintiff is not bound to reply to the
set-off until the parties to the cross-peti-
tion are before the court, and it can not
be taken for confessed against him.
Scott V. Wilson, 3 Bush 603.
(36) Taxes— Set-off not admissible
against demand for unless expressly au-
thorized by statute. Anderson v. City
of Mayfleld, 93 Ky. 230 : and see New-
port Bridge Co. v. Douglass, 12 Bush 673 ;
Com. V. Rodes, 5 Mon. 318.
(37) Usory— waiver. Obligor who has
executed a new note to an assignee for
the debt including usury can not, when
sued on new note, set up the usury as a
set-off. Stone v. McConnell, 1 Duv. 54?
Clark V. Rodes, 12 Bush 13.
(38) Waiver of oliiectioa to set-off in-
property pleaded. It is too late aft^r issue
joined to object that sec-off could not be
relied on. Boyd v. Day, 3 Bush 617;
Adams v. Craycrof t, 1 R. 330 ; Williams
V. Porter, 7 R. 527.
CI^SS-PETITION.
(1) The provisions of sec. 90 apply to
cross-petitions, sec. 97-1, 3.
(2) Pleadias — practice. A sued B for
the price of a jack, B answered, setting
up a writing, signed by A and D war-
ranting the jack, and sought to recover
on it as a cross-petition against D; A
pleaded non est factum to the writing and
was released. Held that B could not
recover on his cross-petition against D,
as it set up a cause of action not affected
by the original action. Wells v. Boyd, 1
Duv. 366.
(3) In an action brought by a creditor
of an estate against the devisees and ad-
ministrator to recover a debt, the admin-
istrator can not, by cross-petition against
the devisees, recover a balance due him
from the estate ; nor can the devisees
maintain cross-petition against the ad-
ministrator for a devastavit. Crabbtree
v. Banks, 1 Met. 482 ; 17 B. M. 10.
(4) In an action to enjoin a judgment
on the ground that plaintiff was released
by limitation, the defendant can not
maintain cross-petition against the sheriff
for failing to return in time an execution
on the judgment. Royse v. Reynolds, 10
Bush 286.
(5) In an action by administrators on
a note executed to them, the defendant
can maintain cross-petition against one
of them individually, to recover the value
of the property for which the note was ex
ecuted, and which had been converted by
him. Phillips v. Keifer, 2 Met. 478.
(6) Cross-petition is not allowed against
plaintiff alone or jointly with another
person. Grimes v. Grimes, 88 Ky. 20.
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TITLE VIl] ANSWER, COUNTER-CLAIM, SET-OFF, CROSS-PETITION.
87
§ 97. Proceediofs npoa coaflter<laim8, cross-petitioiiSt set-offs — captioo. 1.
The provisions of section ninety, concerning the demand and giving
of relief, apply to set-offs, counter-claims, and cross-petitions.
2. No summons is required upon a set-off or counter-claim
against a plaintiff*.
3 [i«T,ii»] Proceedings upon cross-petitions, and upon set-offs
and counter-claims against new parties, shall be the same as
those upon petitions ; but they shall not delay the trial of any
issue in the original action, or upon a set-off or counter-claim,
concerning which a judgment can be rendered without prejudice
to the rights of the defendants to the cross-petition, or to the
rights of new parties to a set-off or counter-claim.
4. A defendant shall not have judgment upon a set-off or
counter-claim, unless the caption of the answer contain the
words, answer and set-off, or the words, answer and counter-
claim ; but a misdescription in the caption, of the nature of the
defendant's claims, shall not prevent him from having judgment;
nor shall a plaintiff have judgment upon a counter-claim unless
the caption of his reply contain the words, reply and counter-
claim.
(7) Sammoas oa. Summons is neces-
sary upon a cross-petition by a defendant
against a co-defendant. Horine v.
Moore, 14 B. M. 311. And upon cross-
petition against new parties. Peak v.
PercifuH, 3 Bush 21S ; see sec. 692 con-
cerning cross-petition by holder of lien
note ; and Jenkins v. Smith, 4 Met. 380 ;
Cavin v. Williams, 8 Bush 343.
(8) The rule requiring service of proc-
ess does not apply to a suit in chancery
by one distributee against an adminis-
strator and co-distributee ; or one legatee
against his co-legatees and the executor,
for ascertaining and distributing a fidu-
cial fund in which they have a common
interest ; and in such cases it is not
necessary thut the answer shall be
made a cross-petition against the co-
defendants. Sale V. Crutch field, 8 Bush
636.
(9) In an action by A against B and
others for the recovery and partition of
land owned by A and B, and claimed
adversely by the defendants other than
B, B was held entitled to relief against
his co-defendants without service of
process or making his answer a cross-
petition against them. 8 Bush 636.
(10) A bound himself to assume all the
liabilities of B, one of the firm of B and
C; in an action by one of the creditors-
of the firm against firm and A, to which
several other creditors of the firm were
made defendants, it was held that the
creditors who were made defendants and
asserted their claims were not entitled to
judgment against A, because they failed
to have process served on him. Francis
V. Smith, 1 Duv. 121.
§ 97. Statemeot io captioi— waiver. By
replying to answer and counter-claim,
and joining issue thereon, the plaintiff
waived the right to object to the-
pleading, because it was not designated
in the caption as an answer and
counter-claim; if there had been no reply,
and judgment had gone by default,
judgment would have been erroneous.
Cason V. Cason. 79 Ky. 558 : Nutter v.
Johnson, 80 Ky. 426; Lacey v. Lacey,
95 Ky. 110.
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88
REPLY AND ADDITIONAL PLEADINGS.
[title VII
CHAPTER V.
REPLY AND ADDITIONAL PLEADINGS.
§ 98. Reply may contain — what.
§ 99. Rejoinder may contain—what.
§100. Surrejoinders and subsequent pleadings.
§101. Departure in pleading forbidden-^exception.
§ 98 iiti, ii»] Reply may contaio — what A reply may contain —
1. A traverse.
2. A statement of facts which constitute an estoppel against, or
avoidance of, a set-off, counter-claim or defense stated in the answer.
§98 (1) Answer— cured by. A defect in the
answer may be cured by an averment in
the reply. Mitchell v. Ashby, 78 Ky. 254.
(2) CMtrlbHtoiy neglect Plea of is ad-
mitted by failure to reply. White v.
L. &N.R.R.Co.,15R.49; but defendant
may, by failing to raise question in prop-
er time and manner, waive his right to
judgment because of failure to file reply.
L. & N. R. R. Co. V. Copas, 95 Ky. 460.
(3) Denial in— snfficiency of. Reply to a
set-off, denying generally the correctness
of each and every item, is not a sufficient
traverse of the items in the set-off.
Whitaker v. Sandifer, 1 Duv. 361 ; Thrus-
ton V. Oldham, 6 Bush 16; and see
note 10.
(4) Denial of any knowledge or in-
formation as to whether or not the various
items mentioned in the account pleaded
as a set-off, and alleged to have been sold
and delivered to plaintiff, were delivered,
is not good ; there should be a specific
denial. Wing v. Dugan, 8 Bush 583.
(5) The petition alleged that the debt
was unpaid, with a statement as to how
it was created. The denial in the answer
that any thing was due, and an allegation
of payment, made an issue. Robinson
v. Williamson, 7 Bush 604.
(6) In an action against a vender to re-
cover damages for failing to convey land
and deliver possession, the defendant by
counter-claim sought a specific execution
of the contract. The plaintiff could not
in his reply demand a rescission, the re-
ply being restricted to matters of de-
fense. Spalding v. Alexander, 6 Bush 160. *
(7) No consideration— reply is necessary
to plea cf. Brown v. Ready, 14 R. 583.
(8) Non est factnm— reply is not necessary
to plea of. Brown v. Ready, 14 R. 583.
(9) Plending— practice. Matters of de-
fense alleged in a petition to be made a
party, such petition being taken as an
answer, need not be denied by reply.
Graves v. Ward, 3 Duv. 301.
(10) Every material affirmative allega-
tion in an answer should be replied to
(sec. 136) and an issue formed as to each
cause of controversy. Sec. 114.
(11) If reply contain matter inconsist-
ent with the petition, the defendant
should object to the filing of it, or move
to strike out the inconsistent matter, or
else the objection is waived. Barbaroux
v. Barker, 4 Met. 47 ; sec. 101 ; sec. 113-4.
(13) If the matter alleged in the answer
as constituting a counter-claim involve
only a denial of what is averred in the
petition, or an affirmance of what is
therein denied, no reply is necessary.
Davis V. Dycus, 7 Bush 4 ; 11 Bush 338.
(13) While a reply can not contain a
set-off against a set-off set up in the an-
swer, a defense that the goods for which
it was sought to recover in the set-off
were sold in payment of an account due
plaintiff, can be pleaded in the reply.
Williams v. Jones, 1 Bush 631.
(14) Where a reply is treated by the
lower court and parties as an amended
petition, it will be so regarded by the
Court of Appeals. Ruffner v. Ridley, 81
Ky. 165.
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TITLK VII.] TIMB OF PLEADINGS. 89
3. A counter-claim against a eet-off.
4. A cross-petition. {Forms ofj pages 622^ 623 ; when not allowed,
sec. 112.)
§ 99. R^ofaider may cooUis — what. A rejoinder may contain —
1. A traverse.
2. A statement of facts which constitute an estoppel against, or
avoidance of —
a. Facts stated in the reply in support of the plaintiff's original
cause of action.
b. A defense stated in the reply to a set-off or counter-claim.
c. A counter-claim stated in the reply. {Forms of^ pages 624;
when not aUoioed, sec. 112.)
§ 100. Sorreioinders and sobseqaeot pleadioi:8. Surrejoinders and subse-
quent pleadings maybe of the same character as replies and rejoinders.
§ 101. Departnre io pleadioj^ fforbiddeo — exceptioo. A party shall not, in
a reply or subsequent pleading, depart from a cause of action or a
ground of defense, stated by him in a previous pleading; but the
pleading of equitable matter of avoidance or estoppel, in an ordinary
action, or of legal matter of avoidance or estoppel in an equitable
action, shall not, of itself, constitute such departure. ( When, incon-
sistfnt allegations allowed, sec. IIS.)
CHAPTER VI.
TIME OF PLEADING.
§ 102. Defense— when to be filed.
§ 103. Ordinary action— time to plccod.
§ 104. Ekiui table action — time to answer.
§ 105. Equitable action — time to complete pleadings.
§ 106. Equitable action—time to complete pleadings.
§ 107. Time to plead extended.
§ 108. Filing in vacation — ^notice— effect.
§ 109. Filing demurrer in vacation— curing defect — waiver.
§ 102 [ST. 186. 187] Defense — when to be filed. Defense to an ordinary
action must be filed on the day on which the case is set for trial ;
(15) Although a plaintiff can not in his pleading subsequent in its character to a
reply depart from his cause of action, he reply — as a rejoinder — and not to am end-
may rely upon matters of avoidance or ed answer, although it may be filed sub-
estoppel. Gibson v. Black, 10 R. 373. sequent to the reply. Bedford v. Graves,
I m. Constractflon ef section. The 8 R. 262 ; and see note 15 to section 98.
words '* subsequent pleading" refer to a § 102. Non-rtsident defendant, as to time
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90 TIME OF PLEADING. [tITLE VII
and, to an equitable action, on the third day of term, if the sum-
mons be served in the county in which the action is brought ten
days, or elsewhere in the State twenty days, or out of the State sixty
days, beforet he commencement of the term, or if the defendant be
constructively summoned thirty days before the commencement of
the term. (When defendant c6nstr actively summoned may file defense^
sec. 4O8; time of trial in ordinary actions^ sees. S59, 363.)
% 103 [i8«i Ordioary actioo — time to plead. In an ordinary action, all
other pleadings must be filed on or before the calling of the case
for trial.
§ 104 [ist] Eqoitable actioo — time to aoswer. If the summons in an
equitable action be served before the commencement of the term,,
but not the length of time mentioned in section one hundred and
two, the defense shall be filed in thirty days after the service.
§ 105 [1S9] Equitable actioo — time to complete pleadioi:8. In an equitable
action, if the answer be due and be filed on the third day of the
term, the reply shall be filed within three days thereafter, and the
subsequent pleadings shall be filed within three days after the filing
of the reply. {Time of trial, sees. 360, 364 to 367.)
§ 106. Eqoitable actioo — time to complete pleadioj^. In an equitable
action, if the answer be not due and filed on the third day of the
term, the reply shall be filed within ten days after notice of the filing
of the answer, and the subsequent pleadings shall be filed within ten
days after notice of the filing of the reply.
§ 107 140] Time to plead exteoded. The court may, for good cause
shown, and at the cost of the party applying therefor, extend the
time for filing a pleading, but not beyond the next succeeding term.
§ 108 [141J Filiog io vacatioo — ootice — effect. The filing of an answer
or subsequent pleading in the clerk's office, during vacation, within
the time allowed, with notice thereof to the adverse party, or his
attorney, shall be equivalent to a filing in court.
§ 109. Pilioji: demurrer io vacatioo— ^orioj^ defect — waiver. 1. A party
who files an answer or subsequent pleading, during vacation, may file
a demurrer therewith.
2. The adverse party may, during that vacation, and after
when action against stands for trial. See the affidavit should disclose the na-
Harris v. Adams, 3 Duv. 141 ; sec. 60, ture of the defense so that the court
and note thereto. may judge whether or not it is suffi-
1 107. Time to file aagwer. On motion cient. Engleman v. National Bank, '3
for continuance and time to file answer Bush 165.
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TITLE Vn] GENBRAL RULK OP PLBA0ING. 91
notice to the* party filing the d^muri^er, or his attorney, file an
amended pleaditig to cure any defect Buggested by the demurrer.
3. The failure of a party, who so files a special demurrer, to pre-
sent it for consideration, at the next succeeding term of the court,
shall be a waiver of any defect stated in the demurrer, except that
to the jurisdiction of the court of the subject of the action.
CHAPTER VII.
GENERAL RULES OP PLEADING.
§ 110. Caption of pleading—- what it shall state.
§ 111. Pleading that may be made cross-petition, set-off, counter-claim.
g 112. Reply and additional pleading — when not allowed.
§ 113. General provisions concerning pleadings.
§ 114. Material issue to be formed.
§ 115. Written in English language and signed — exception.
§ 116. Verification — when not required.
§ 117. Verification — by whom to be made.
§ 118. Special demurrer may be presented by pleading — waiver.
§ 119. Facts that need not be stated — private statute.
§ 120. Writing^on which action founded to be filed.
§ 121. Irrelevant or redundant matter stricken out.
§ 122. Judgment — how pleaded.
§ 123. Libel or slander — unnecessary allegations.
§ 124. Slander or libel — what answer may state.
§ 125. Land — requisites of pleadings in action for — burden of proof— costs.
§ 126. Allegations not denied admitted— exception.
g 127. Material allegation defined.
§ 128. Writings relied on as evidence may be filed — when part of record.
§ 110 [118, isfj Captioo of pleadiog — what it shall state. 1. The caption
of a pleading must state the name of the court in which the action
18 brought or pending, and the names of the parties, designating who
are plaintiffs and who are defendants, coupled with a word, or short
phrase, describing the character of the pleading, with this exception:
If there be several parties on either side, a statement of the name of
the plaintiff', or defendant, first named in the petition, followed by
the phrase, "etc.," shall suffice, except in petitions, cross-petitions
and answers which make new parties to a set-off or counter-claim.
2. Petitions in ordinary actions shall be described by the word,
"petition;" those in other actions shall be described by the words^
"petition in equity." {See sec. 97.)
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92 GENERAL RULES OF PLEADING. [XITLB VH
§ 111. Pleadiiif tlut nay be mtde croasiietitioa— Mt-eH— coooter-cUia. 1.
No pleading, except an answer to an original petition, or the plaint-
iff's reply to such answer, shall be made a cross-petition.
2. No pleading, except an answer to an original petition, shall
present a set-oft*.
3. No pleading, except an answer to an original petition, or a
reply to a set-off", shall present a counter-claim. {These pleadings
defined, sec. 96; proceedings upon, sec. 97.)
§ 112. Reply aod additiooal pieadioj^ — when not allowed. There shall be
no reply, nor additional pleading, except to affirmative allegations of
an adverse pleading. ( What these pleadings may contain, sec. 98 to
101.)
§ 113 C1S4] Qeoeral provlsioos conceroioji: pleadioji:8. 1. A party may de-
mur to part of a pleading, and present an issue of fact as to another
part.
2 [ii«] A pleading may contain statements of as many causes of
action, legal or equitable, and of as many matters of estoppel and
of avoidance, legal or equitable, total or partial ; and may. make as
many traverses ; and may present as many demurrers, as there may
be grounds for in behalf of the pleader.
3 [ii», H5] If there be more than one, each must be distinctly stated
in a separate, numbered paragraph ; and either, which is intended
to respond to part only of an adverse pleading, must show to what
§ 113. (1) Alternative pleai. In action paragraph with a defense which is well
on renewal note, if defense of non eiifae- pleaded may be demurred to. Williams
turn is made, plaintiff may, by amend- v. Langford, 15 B. M. 566.
ment, ask, if plea is good, to have judg- (5) licenslsteflt pleas. Plaintiff may, by
ment on original note. First National an amended petition, abandon the cause
Bank v. Gains, 87 Ky. 597. of action set up in his petition, and pre-
(2) CoastrHCtion of soMlvisloa two. This sent a cause that could not have been
subdivision does not imply that a de- joined with that relied on in the petition,
fendant may demur generally to the pe- Hord v. Chandler, 13 B. M. 403. And an
tition, and, if demurrer is overruled, file objection to a pleading because it con^
an answer denying jurisdiction of court. tains inconsistent matter can not be made
McDowell v. C, O. & S. W. R. R. Co., by demurrer. lb. See Hancock v. John-
90 Ky. 340. son, 1 Met. 242.
(3) Defenses allowed. In an action for (6) In an action by the assignee of a
negligence against a railroad company, bankrupt to recovercertain notes assigned
the defendant has a right under the Code by the bankrupt a short time before his
to traverse the petition, plead contribu- bankruptcy, the petition charged that
tory negligence and a compromise. Jones the bankrupt had fraudulently assigned
V. L. & N. R. R. Co., 82 Ky. 610; Bu- them ; that he was at the time insolvent,
ford V. L. & N. R. R. Co., 82 Ky. 286. and that they were assigned to prefer a
(4) Demurrer to part of pleadiof. A de- creditor. Held not inconsistent pleas, as
fense insufficiently pleaded in the same it is in effect alleged that plaintiff does
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TITLE VIl] GBNBRAL RULES OP PLEADING. 9S
part it is responsive. It is the duty of the court, upon or without
motion, to enforce these provisions ; and, for that purpose, to dis-
miss an action without prejudice, or to strike a pleading, or any
part thereof, from the case, or to allow a new pleading.
4. If, however, a party file a pleading which contains inconsist-
ent statements, or statements inconsistent with those of a pleading
pre\iou8ly filed by him in the action, he shall, upon or without
motion, be required to elect which of them shall be stricken
from his pleading. But n party may allege, alternatively, the
existence of one or another fact, if he state that one of them is true,
and that he does not know which of them is true.
5. If a pleading be stricken from the record, re-formed or
amended, the party in fault shall pay the cost resulting therefrom.
6. An express admission of a fact is not necessary to render valid
a pleading in avoidance or estoppel thereof.
7 iiw] A traverse is a denial, by a party, of facts alleged in an
adverse pleading, if they be presumptively within his knowledge ;
or a denial of them, or a denial that he has sufficient knowledge or
information to form a belief concerning them, if they be not pre-
sumptively within his knowledge. (Allegations not denied admitted,
sec. 1Z6)
8. Sham pleadings shall, upon or without motion, be stricken
out by the court, at the cost of the parties for whom they are filed
and of their attorneys. ( What is not departure in pleading, sec,
101 ; cause of action may be dismissed without prejudice, sec, 371)
not know which is true. Beatty v. Dud- to elect to prosecute one of the para-
ley, 80 Ky. 381. graphs, and the others should be stricken
(7) In an action by an assignee upon a out ; unless the plaintiff shall allege that
note, the defendant pleaded as a set-off the fact, as stated in one or the other of
a note due to him by the assignor. The the paragraphs, is true, but he does not
plaintiff replied that the defendant exe- know which of them is true. M. & C.
cuted the note sued on to enable the Turnpike Co. v. Maupin, 70 Ky. 101.
assignor to raise money, and for that (10) The defendant in an action for
purpose it was assigned to him. Held slander can not plead inconsistent de-
that the reply was supplemental to, and fenses, as in one paragraph admitting and
not inoonslBtent with, the petition. Bar- in another denying the speaking of the
baroux v. Barker, 4 Met. 47. words. Rooney v. Tiemey, 82 Ky.* 253.
(8) If a reply contain matter inconsist- Under the Code of 1854 inconsistent de-
ent with the petition, the defendant fenaes could be pleaded in slander. Har-
sbould object to its being filed, or move per v. Harper, 10 Bush 447.
to strike out the inconsistent matter. (11) Purafraphhif — wtfrer. The fact
4 Met. 47. that distinct defenses are not set out in
(0) When the petition shows that sev- separate paragraphs is not cause of de-
eral paragraphs relate to the same cause murrer, but of a motion to paragraph,
of action, the plaintiff should be required Mullikin v. MullikiD, 15 R. 009; Will-
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GBNBKAL BULBS OF PLEADING.
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§ 114. Material Issae to be foraied. Parties must, before trial, form a
material issue concerning each cause of controversy ; and it is the
duty of the court, upon or withijut motion, to compel them to do so ;
and, for that purpose, they may be required to re-form their plead-
ings, or the pleading of a party who is in fault may be stricken from
the case.
§ 115 [14S] Writteo io Eoi^lish laofaace aod si^ed — exceptioo. Pleadings must
be in the English language, and as concise as possible consistently
with clearness; and, excepting those mentioned in section seven
hundred and five, must be in writing, and be signed by the parties
who file them, or by their attorneys.
§ 116 [i4>. 148. B881 Verificatioo — ^wheo not required. Every pleading, which
this Code requires to be written, must be verified by an afiidavit to
the effect that the affiant believes that the statements of the pleading
are true, excepting {Forms of verification^ p(^y^ ^^^ —
1. Demurrers.
2. Defensive pleadings filed by a guardian ad litem, curator or
committee of a defendant who is under disability, or by an attor-
ney for a defendant who has been constructively summoned and
has not appeared to the action.
iams V. Langford, 15 B. M. 566. And
an objection to a pleading because not
properly paragraphed is waived by an-
swerinfr. Noel v. Hudson, 13 B. M. 205.
(12) Rednndaacy. If a petition contain
irrelevant or redundant matter, but does
not present two causes of action, a motion
to strike out (sec. 121) or to make more
specific (sec. 134) is the way to reach the
defect. Bonney v. Reardon, 6 Bush 34.
(13) Traverse oecessary. In action
against carrier for damages to stock
transported over its line, denial of knowl-
edge or information as to its negligence is
not sufficient, it must make a specific
denial. N., C. & St. L. R. R. v. Carrico, 95
Ky. 489.
(14) See further notes to section 95 as to
necessity for and sufficiency of traverse.
(15) Two or more obUfatioas sued oa.
Each should be set out in a separate par-
agraph although the same parties are on
each instrument, but where the obliga-
tions sued on are for the performance of
a public duty running through several
terms and the plaintiff is unable to state
amount of defalcation for each term sep-
arately, it is sufficient to set out in para-
graphs the obligations and state at
conclusion amount of defalcation. Com.
V. Tate, 89 Ky. 608.
1 115. (1) Slfoiog pleadlofs. The an-
swer of the defendant was not signed at
the end of it, as it should have been ; the
signature of the attorney on the back be-
low the indorsement is not a signing in
the meaning of the CJode ; but the court,
having permitted it to be filed over the
objection of plaintiff, should not have
disregarded it on the hearing because not
signed. Ashbrook v. Roberts, 82 Ey. 296 ;
see sec. 732-7.
(2) Failure to properly sign a pleading
must be taken advantage of by rule, or
the objection will be waived. Voorheis v.
Eiting, 15 R. 161.
1 116. (1) VerlflcatioB. In an action
against a defendant for creating a private
nuisance, the petition need not be veri-
fied. Ray V. Sellers, 1 Duv. 254; see
further, 138, as to waiver of objection for
want of verification.
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3. A pleading which states a cause of action that is founded on
a written contract, or upon a written indorsement or assignment
thereof, if it be filed with the pl^fiding.
4. A pleading which states a defense that is founded on a writing
executed by the adverse party, and filed with the pleading.
5. Allegations concerning value or damage, not accompanied by
an allegation of an express promise, or by a statement of facts
showing an implied promise, to pay such value or damage.
6. Pleadings in actions brought in the name of the Common-
wealth, pursuant to Chapter XIII, of Title X.
7. When the admission of an allegation of a pleading might sub-
ject a party to a criminal or penal prosecution. ( Verification not
required in actions for alimony, or divorce, sec. 4JS1; nor in actions for
division of land, sec. 499; waiver of sec. 138; when amendments allowed
toithout, sec. 139; how and before whom made, sees. 551 ^ 549.)
§ 117 [i4>>i48] Verificatioo — by whom to be made. Pleadings, the verifi-
cation of which is required by this Code, must be verified as follows :
1. Pleadings of the Commonwealth must be verified by the
attorney who brings the action, or by the oflicer or agent who is
authorized by law to have it brought.
2. That of a county, or of a municipal or private corporation,
must be verified by its chief officer or agent upon whom a sum-
mons in the action is lawfully served, or might be lawfully served
if it were a defendant; or if it have no such officer or agent resid-
ing in the county in which the action is brought, or is pending, it
may be verified by its attorney.
3. That of any other party must be verified by him, with these
exceptions :
(2) Plea of non est factum must be veri- (2) Suit by county. County jud^e is
fled. Ky. Stat., sec. 473; as must plea of proper person to verify petition, but if he
DO consideration. Ky. Stat., sec. 472. refuse, county attorney may verify, and
(3) Objection for want of verification if he refuse, some person authorized to
should be made by rule requiring party order institution of action may verify,
to verify, and upon his failure to do so, Estill Co. v. Richmond R. R. Co., 01 Ky.
pleading should be stricken from record. 349.
Wheeler v. Wales, 3 Bush 225. (3) Several parties united in interest
f 117. (1) Verlflcatioa. It may now be must each verify pleading when affidavit
regarded as settled that the oaths of the mentioned in subsection 4 is filed, and
plaintifTand the defendant to the respect- the pleading will be treated as a nullity
ive pleadings are equivalents, leaving as to those refusing to verify; but failure
the Issue to be adjudicated upon the evi- of one to verify does not authorize court
dence. Worley v. Tuggle, 4 Bush 168 ; to treat pleading as a nullity as to those
Enders v. Williams, 1 Met. 346; 17 B. who do. Harrison v. Lebanon Water
M. 642; 16 B. M. 174. Works, 91 Ky. 255.
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96 GENERAL RULES OF PLEADING. [TITLE VH
a. If he be absent from the county, or mentally incapable of
taking an oath, or physically unable to attend before an officer, it
may be verified by his agent or attorney.
b. If it be a joint pleading of several parties, who are united in
interest, it may be verified by either of them.
c. If the party be under disability, excepting coverture, or in-
fancy and coverture combined, it may be verified by the person
who is authorized to file it.
4. But, on motion of a party who files his affidavit, stating his
belief that an adverse party, whose pleading has been verified by
a person other than himself, knows that a statement thereof, in the
affidavit mentioned, is untrue, and that the motion is not made for
delay, the court, if such statement be material, shall require such
adverse party to verify the pleading; and, if he fail to do so, within
a reasonable time, shall treat it, with regard to him, as if it had
not been filed.
5. Verification of a pleading does not make other or greater
proof necessary on the side of the adverse party than would have
been necessary if the pleading had not been verified. (Hoio and
before whom made, sees. 66 1, 649; when by agent or attorney y sec. 560 ;
form of affidavit to require party to verify in person, page 6^8^
§ 118 [is»] Special dcawiri'cr nay be preseated by pleaAif — wafrer. A
party maj, by an answer or other proper pleading, make any of the
objections mentioned in section ninety-two, the existence of which
§ 118. (1) Defect of parties— how reached, want of Jurisdiction over the person may
If defect of parties appear in petition it be waived by consent. Hughes v. Har-
should be taken advantage of by special desty, 13 Bush 364 ; Barton v. Barton, 80
demurrer, as provided in sec, 92-4; if de- "Ky. 212. Defense to the merits of an ac-
fect does not appear, it must be taken ad- tion is waiver of the right to object for
vantage of by answer, or the error is want of jurisdiction over the person of
waived. McAlister v. Saving Bank, 80 defendant. Baker v. L. & N. R. E. Co.,
Ky. 684 ; Albro v. Lawson. 17 B. M. 642 ; 4 Bush 619.
10 Bush 763 ; 3 Bush 200 ; 14 B. M. 246 ; (5) See further as to what steps a de-
4 Met. 385. fendant may take without entering his
(2) Qarafshee may show. A garnishee appearance, and when his appearance is
may show by affidavit that there is a de- entered, note 7 sec. 93.
feet of parties. Forepaugh v. Appold, (6) Non-reifdeots. The provision that
17 B. M. 625. a defect of parties appearing in petition
(3) Jorfsdlctioii— appearance. When the is waived by failure to demur applies to
court has no jurisdiction of the subject actions against persons constructively
matter consent can not give it. Fidler summoned. Gill v. Johnson, 1 Met. 649.
V. Hall, 2 Met. 461 ; Barton v. Barton, 80 (7) Practice. Where the fact that
Ey. 212 ; 18 B. M. 259. plaintiff has not legal capacity to sue is
(4) When the court haa jurisdiction of relied upon in the answer and proved on
the subject matter, the objection for the trial, the plaintiff can not have judg-
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is not shown by the pleading of his adversary ; and failure so to do
is a waiver of any of said objections, except that to the jurisdiction
of the court of the subject of the action. {See further as to special
demurrer J sec. 9S.)
§ 119 [i«4] Facts that aeed not be stated — private statute. 1. Neither the
evidence relied on by a party, nor presumptions of law, nor facts of
which judicial notice is taken, excepting private statutes, shall be
stated in a pleading.
2. In pleading a private statute, it shall be sufficient to refer to
it by stating its title and the day on which it became a law.
§ 120 [140J Writiiif oo which actios founded to be filed. If an action,
counter-claim, set-oft' or cross-petition be founded on a note, bond,
bill or other writing, as evidence of indebtedness, it must be filed as a
ment even if defendant fail to insist
upon the defect by motion. Petty v.
Malier, 14 B. M. 246.
(8) When the answer discloses a defect
of parties, the action should not be dis-
missed or abated, but an order entered
requiring the additional parties to be
made on pain of dismissal without prej-
udice, and the action postponed until
necessary parties are made. Carpenter
T. Miles, 17 B. M. 508 : 3 Met. 133.
g 119. a) Judicial BOtke. The courts
take judicial notice of all acts and
resolutions of the Qeneral Assembly.
Kentucky Statutes, sees. 1624, 1625.
As to what facts Judicial notice is taken
of, see Newman's Pleading and Practice,
pages 268 to 277 ; and as to presumptions
of law, see ibid, pages 277 to 281 ; Greg-
ory V. McFarland, 1 Duv. 59 , Williams
V. Gordon, 11 Bush 693.
(2) PriYite fltatatet. As to what are
private statutes in the meaning of this
section, see City of Cov. v. Voskotter,
80 Ky. 219 ; City of Cov. v. Hoadley, 83
Ey. 444. The Court of Appeals wlU
take Judicial notice of private acts when
they have been relied on in the lower
court, although that fact is not formally
stated in the bill of exceptions. Lackey
V. R. & L. T. P. Co., 17 B. M. 43 ; Bix-
let V. Parker, 3 Bush 166.
(3) In pleading a private statute it is
necessary to state its title and the day on
which it became* a law. Zable v. Lou.
Baptist Home, 92 Ey. 89.
(7)
(4) To authorize a corporation created
by statute to sue, it is not necessary that
it should aver its regular organization ;
and in general, where a defendant deals
with a corporation and recognizes its ex-
istence, he is not permitted to raise the
question whether it has been legally
organized or not. H. & N. R. R. Co. v.
Leavell, 16 B. M. 358 ; Lail v. Mt. Ster-
ling Coal Co., 13 Bush 32.
§121. (1) Exhibit Hied which contradicts
averments of pleading must control. Ey.
Mut. Co. v. Logan, 90 Ey. 364 ; Boyd v.
Bethel, 10 R. 470 ; in Green v. Page, 80
Ey. 368, it is held that an exhibit neither
aids nor destroys the material averments
in a pleading, and is not to be considered
in determining its sufficiency.
(2) Pleadiof. A petition founded on a
writing or bond ought to state the sub-
stance of it, or at least so much of it as
is material to the action, and also refer to
it as a part of the petition, or state why
it is not filed. Collins v. Blackburn, 14
B. M. 252; and a petition founded on a
writing which merely refers to it without
setting out its terms is bad on demurrer.
Riggs v. Malthby, 2 Met. 88 ; Dodd v.
Eing, 1 Met. 430; Huffaker v. Nat.
Bank, 12 Bush 287.
(3) A writing upon which an action is
founded must be filed with and referred
to in the petition, and so much of it set
forth as will show that the plaintiff by
reason of alleged acts or omissions on his
part, and on the part of the defendant, is
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QENEBAL RULES OF PLEADING.
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part of the pleading, if in the power of the party to produce it ; and
if not filed, the reason for the failare mast be stated in the pleading;
if upon an account, a copy thereof must be filed with the pleading.
(Aetion on lost writing^ sec. 7 ; other writings may be filed as evidence^ see.
1S8; when read as genuine^ sec. 6^ ; meaning of " writing^'' sec. 7S2.)
§ 121 (i«f] Irretevaot or rediMdast mitter stricken out Irrelevant or
redundant matter in a pleading shall be stricken out, upon or with-
out motion, at the cost of the party whose pleading contains it.
§ 122 [1481 Jttd^eot — how pleaded. In pleading a judgment or deter-
mination of a court or officer, it is not necessary to state the facts con-
ferring jurisdiction; but it shall be sufficient to state that the judg-
ment or determination was duly given or made.
entitled to relief. Hill v. Barrett. 14 B.
M. 83.
(4) Record— wrMaf filed >art ot Notes
sued oo (ind filed with tlie petition
constitute part of the record. I>odd v.
King, 1 Met. 430 ; Totten v. Cooke, 2
Met. 275 ; Harmon v. Wilson, 1 Duv.
322.
(^ An account not filed with and as
part of the petition, but simply lodged
in the papers before appearance or ao-
swer, is not part of the record, and need
not be noticed in the luiswer. Webb v.
Jeffries, 2 Hush 221.
(0) In an a«tion against a common
carrier to recover the value* of baggage
lost, a schedule filed with the petition
and made part thereof is a part of the
case, and the jury had a right to regard
the statements of fact it contained as
admissions upon the part of the plaintiff.
L., O. & L. R. R. Co. V. Mahan, 8 Bush
184.
(7) ftide to file— pfmctke. If a writing
which is the evidence of the indebted-
aess or liability constituting the cause
of action be not filed, the adverse party
may ask a rule to have it filed, and upon
failure to file it, or to offer a sufficient
reason for not so doing, may have action
dismissed; but if be fail to take steps
requiring it to be filed, and judgment is
rendered ou the pleading, it can not be
reversed because the writing was not
filed. Prerton v. Roberts, 12 Bush 570.
(8) A rule to file title papers, or papers
of any kind where they are not referred
to in the pleadings, is unauthorized
except upon sufficient grounds made out
by affidavit showing that the filing of
the papers is necessary to the substantial
ends of Justice. Ruggles v. Moore, IS
B. M. 821 ; and see Marion Nat. Bank v.
Abell, 88 Ky. 428, for a full sUtement of
practice regarding production of books
and documents.
(9) Wrltkif— te be filed— waiver. Al-
though a writing upon which action is
founded is not filed, the adverse party
can not complain of it after judgment.
McGhee v. Sutherland, 84 Ky. 198 ; 12
Bush 570.
1 121. MwidMt matter. It is too late
after verdict to object on account of re-
dundant matter in the petition, or that
blanks were not fiUed. E. <Sb P. R. R.
Co. V. Pottinger, 10 Bush 185. Nor is it
reversible error to refuse to strike out
redundant matter unless it appears that
the party was prejudiced thereby.
Buckles V. Lambert, 4 Met. 330 ; and see
Bonncy v. Rcardin, 6 Bush 34.
§ 122. (1) Admlolitrator-^pp^tneflta^
how pleaded. The allegation in the pe
tition, that appellees were by an order of
the Hardin County Court appointed ad-
ministrators of A. 8. Qardner, deceased;
and qualified as such, is a substantial
compliance with section 122 of the Civil
Code. Warfield v. Gardner, 79 Ky. 583.
(2) Baokniptcy— ideadiof dtacbaife. In
pleading discharge in bankruptcy, it is
not necessary to allege that the court
granting the discharge had jurisdiction.
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§ 123 [!••] Ubel or sUoder — omiecessary allefatioos. In an action for
libel or slander, it is not necessary to state any extrinsic facts for the
purpose of showing the application to the plaintiff of the alleged de-
famatory matter.
§ 124 [ui] Slaader or libel — ^what answer . may stale. In the actions men-
tioned in section one hundred and twenty-three, the defendant may
state the truth of the alleged libel or slander, and any mitigating <;ir-
cumstances; and, whether he prove the justification or not, he may
prove the mitigating circumstances to reduce the amount of damages.
§ 12S[iMiLaad — |ileadki:t ia action for — burden off proof — costs. 1. A
petition for the recovery of land, or for its subjection to a demand
of the plaintiff, must describe it so that it may be identified.
•or to state the facts conferring jurisdic-
tion ; but it is necessary to state in sub-
.stADce that discharge was duly granted.
Laidley v. Cummings, S3 Ky. 606.
(3) Poreica jadsoMat In action on for-
eign judgment it is necessary to allege
facts showing that the court rendering
the judgment had jurisdiction of the
subject matter and the person of the
defendant. Oebhard v. Gamier, 12 Bush
321; Wood v. Wood, 7S Ky. 624; 10
Bush 160 ; 12 Bush 274.
(4) Jadsoifat In pleading judgment
it is not necessary to state facts confer-
ring jurisdiction, and this rule applies to
idi judgments of superior courts, whether
the facts necessary to give jurisdiction
arte general or special. Garner v. Wills,
-02 Ky. 380.
§123. (1) Slaader^Ubd. Causes of ac-
tion for may be joined. Hargan v. Purdy,
i»8 Ky. 424.
(2) DefamaJtory words either spoken or
written of a person in respect to his office
or employme«it are sctionable. ^srgan
V. Purdy, 93 Ky^ 424.
(8) Words chsrging one with having
ju^eepted a bribe to abandon a ^ont^sat for
aii o^ee are not aotionable. Field v.
•ColflOD, 93 Ky. 347*
(4) Any defamatory words c^oul&ted
io degrade or injure the reputation of a
person in society, when written and pub-
Usbed, ar« libelous sod aetionnble. Allen
X. WortMm, 89 Ky. 485 ; as to what
words sjre s^aD^efous see Lemon v. Wells,
TaKy. U7.
(5) See, for a full discussion of the law of
newspaper libel, Riley v. Lee, 88 Ky. 603.
(6) Privileged communications — see
Stewart v. Hall, 83 Ky. 875; Nix v.
Caldwell, 81 Ky. 293 ; Morgan v. Booth,
13 Bush 480 ; Campbell v. Bannister, 79
Ky. 205.
|U4. (1) Incoasisteat defeases. The
defendant can not plead inconsistent de-
fenses in slander suit, as in one para-
graph admitting and in another denying
the speaking of the words. Rooney v.
Tierney, 82 Ky. 253. Sec. 113-4 inhibits
Inconsistent pleas.
(2) Mit if sting circamstsices. As to
pleading mitigating circumstances, see
Campbell v. Bannister, 79 Ky. 205 ; Mor-
gan V. Booth, 13 Bush 480 ; Nix v. Cald-
well, 81 Ky. 293; 10 Bush 448; 83 Ky.
375 ; Mclntyre v. Bransford, 13 R. 454.
(3) Ptesding — evMeace. When the only
answer is a denial of the speaking of
the words, nothing is admissible in evi-
dence which tends either to prove the
truth of the charge or to establish a de-
fense on the ground that they were
spoken on a justifiable occasion. A plea
of justification must admit the truth of
the words spoken. Hari)er v. Harper,
10 Bysh 448.
(4) A denial of knowledge or informa-
tion) as to speaking the words charged to
be slanderous is not sufficient, a |x>sitive
denial must be made. Macauley v. El-
rod, 16 R. 291.
I m. (1) Pl«l4iag* In action to re-
cover land in possession of defendant it
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GENERAL RULES OF PLEADING.
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2. In an action for the recovery of land, the answer of the de-
fendant must state whether or not he claims it, or any part of it;
and, if he claim part of it, his answer must so describe such part
that it may be identified. The making of such statement, or of such
statement and description, shall not, of itself, throw on the defend-
ant the burthen of proving his right to the land claimed by him ;
but, if the plaintiff recover any part thereof, the defendant shall
pay the costs of the action.
§ 126 [IBS] Allegatioiis oot denied admitted — exception. Every material alle-
gation of a pleading must, for the purposes of the action, be taken
as true, unless specifically traversed, excepting these, which must be
proved though not traversed :
1. Allegations of a petition, or cross-petition, against a defend-
ant who is under any disability except coverture.
2. Allegations of an answer, or reply, so far as it states a set-off
or counter-claim against a new party who is under any disability
except coverture.
is only necessary that he shaU deny title
in plaintiff; it is not necessary to set up
title in himself. Simms v. Simms, 8d
Ky. 642.
(2) Petition for recovery of land must
so describe it that it may be identified,
and defendant, by asserting claim to the
land, does not assume burden of proving
it. Howard v. Lock, 15 R. 154 ; Owens-
boro R. R. V. Barker, 15 R. 175.
(3) Answer of defendant, failing to al-
lege that land claimed by him is any
part of land described in petition, is de-
fective. Bailey v. McConnell, 12 R. 473.
1 126. (1) Assessment of recovery— whea
necessary. It was held under Code of 1854
that in an action to recover the value of
coal converted to defendant's use, Dan-
iel V. Judy, 14 B. M. 393 ; or on an at-
tachment bond. Burgess v. Jacob, 14 B.
M. 517; or for trespass on plaintiff's land,
Clark V. Seaton, 189 B. M. 226 ; or against
a common carrier for failing to deliver
goods of an alleged value, Huston v.
Peters, 1 Met. 558 ; or on an obligation
to pay a sum of money in cash notes,
Marr v. Prather, 3 Met. 196 ; or for the
value of clothing for a negro which de-
fendant failed to furnish according to
contract, SkiUman v. Muir, 4 Met. 282.;
or for failing to deliver according to con-
tract whisky alleged to be worth so much
per gallon. Beam v. Hayden, 5 Bush 426 ;
or in proceeding to recover reasonable
attorney fee, Wintersmith v. Tabor, 5
Bush 105 ; or for damages for an assault
and battery, Slone v. Slone, 2 Met. ^39 :
or for the conversion of a wagon and
horses, 1 Bush 189 ; or for failure to per-
mit defendant to p>erform labor which he
had contracted to render. Wood v. Mor-
gan, 6 Bush 507, that judgment by de-
fault was improper, and that the value
or damage should have been assessed.
But that Code provided that "allega-
tions of value or of amount of damage
shall not be considered as true by the
failure to controvert them,** while this
section provides that every allegation of
value or amount of damage which is
accompanied by *' an allegation of an ex-
press promise, or by a statement of facts
showing an implied promise to pay such
value or damage," must be considered as
true unless denied. Ragsdale v. Lander,
80Ky. 61.
(2) Under this Code a recovery with-
out proof may be had either in actions,
in contract, or tort, where there is either
an express or an implied promise to pay
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3. Allegations against a defendant constructively summoned,
who has not appeared in the action.
4. Allegations concerning value or amount of damage, not ac-
companied by an allegation of an express promise, or by a state-
ment of facts showing an implied promise, to pay such value or
damage; such allegations, so accompanied, need not be proved
unless traversed. {Traverse defined, sec. 113 ; judgment upon failure
to pleady sec. 379; trial by court y sec. 312 ; by Jury, sec. 313 ; petition
for divorce not taken as true by failure to answer y sec. 4^2.)
the amount sought to be recovered. Har-
ris V. Mertz, 82 Ky. 200 ; 80 Ky. 61 ; and
see sec. 379 as to manner of assessment
when It is necessary.
(3) In an action to recover for use and
occupation of land where the petition
stated facts raising an implied promise
to pay, its allegations could be talcen as
true unless traversed. 80 Ky. 61.
(4) It was held even under Code of 1854
that in an action on a medical account,
or for goods sold and delivered, the aver-
ments of petition would be taken as true
if not traversed. Harris v. Ray, 15 B.
M. 628 ; Mills v. Brown, 2 Met. 404.
(5) Assetsoieot of recovery withoot evi-
4eace. In an action for assault and bat-
tery the jury have a right, in the ab-
sence of answer and proof, to render a
Judgment for more than nominal dam-
ages. Rogers v. Auliclc, 2 Duv. 419.
In an action to recover for the serv-
ices of a negro boy for one year, the law
and facts were submitted to the court,
and without hearing proof the judge
assessed the amount of the recovery.
The court say '*that in an action of as-
sumpsit for woric and labor, the jury
have a right, in the absence of all proof
of the value of such labor, and from
their own knowledge, to find a verdict
for the price of such labor, and the court
has same power when case is submitted
to it." Baum v. Winston, 3 Met. 127.
And see further sec. 379.
(6) laterrofttory — folldre to answer.
Judgment can not be given against a
defendant because he failed to answer an
interrogatory propounded in the petition,
when the material allegations thereof are
denied. Burnett v. Garnett, 18 B. M. 68.
(7) laterest should be allowed on cash
advances, not as a matter of discretion
in the jury or court, but as legal dam-
ages. Field V. Burnam, 3 Bush 518 ; and
is aUowable on an account as matter of
law from the time when it becomes pay-
able. Henderson Mfg. Ck>. v. Lowell
Machine Shops, 86 Ky. 668.
(8) Noa-resideat In an action against
a defendant constructively summoned,
it is not necessary to prove the execution
of the note sued on. Gill v. Johnson, 1
Met. 649 ; Ball v. Poore, 81 Ky. 26.
(9) Paymeat — plea of by oae of several
obUfors. In an action against several
obligors on a note, a plea of payment by
one presents a defense for all, and there
can be no judgment against those not
answering until plea is disposed of.
Rouse V. Howard, 1 Duv. 31.
(10) Practice. In an action for the con-
version of property the defendant failed
to answer, and a judgment was rendered
pro confe99o except as to the allegation of
the value of the property, that being
tried at a subsequent term by a jury.
The judgment ;>ro confesao concluded all
the litigation except as to value. Ken-
drick V. Fields, 2 Bush 153.
(11) An order taking a petition in
equity for confessed should not be made
before the process is served upon all the
defendants concerned in interest. Alex-
ander v. Quigley, 2 Duv. 399. See sees.
366, 367, as to trial of equity actions.
(12) The provisions that allegations of
value or amount o( damage can not be
taken as true by failure to answer them
applies to equitable as well as ordi-
nary actions. Clark v. Seaton, 18 B. M. 226.
(13) Failure to deny part of a para-
graph of an answer which is good en-
titles defendant to judgment without evi-
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102 MISTAKES IN PLEADINGS — AMENDMENTS. [tITLE VII
§ 127 [1S4] Material allefatloB deflaed. A material allegation is one which
is necessary for the statement or support of a cause of action or defense.
§ 128 [iM] WrHiflfs relied oa as erldeace may be filed — wliea part of record.
1. In addition to the writings which a party is required by section
one hundred and twenty to file as the foundation of his action or de-
fense, he may file, as an exhibit, with his pleading, or with leave of
court at any time pending the action, any writing upon which he
may intend to rely as evidence.
2. In an equitable action, such exhibits shall constitute part of
the record, unless it show that they were not used on the trial.
3. In an ordinary action, such exhibits shall not constitute part
of the record, unless it show that they were used on the triaL
{Meaning of " writing,'' sec. 732 ; when read as genuine, sec. 61^.)
CHAPTER VIII.
MISTAKES IN PLEA DING&- AMENDMENTS.
§ 12&. Variance when material — amendment.
§ 130. Immaterial variance — practice — amendment.
§ 131. Variance when fatal— action on contract.
§ 132. Amendment before answer— notice.
§ 133. Demurrer oter ruled, party may plead.
§ 134. Amendments generally — trivial error.
§ 135. Supplemental pleading— action to enforce lien.
§ 136. Continuance on amendment.
§ 137. Verification of petition before trial sufficient.
§ 138. Verification not neces.sary after trial begins.
§ 139. Veriflcation-r-amendment allowed without
§ 129 [ise] Variaoce wheo material — ameodmeot No variance between
pleadings and proof is material, which does not mislead a party, to
dence, although part of paragraph may that the circuit judge heard testimony,
be bad. Gray v. Garrison, 2 R. 318. Dehoney v. Sandford, 3 Bush 169 ; Mead
(14) Averments against persons under v. Nevill, 3 Duv. 380 ; Marrs v.. Prather,
disability when talcen as true although 3 Met. 196; Smith v. Curtis, 1 Duv. 381 ;
not proved. See Finzer v.. Nevin, 13 R. Gould v. Bonds, 1 Bush 189; 14 B. M.
773 ; where it is held that provision of 393 ; 18 B. M. 227 ; 5 Bush 426.
Code requiring proof is for protection of (16) Traverse— what it anffkieat See
person under disability. notes to sec. 95.
(15) Record— what it sboald show. If the § 128. Chaage in sectioo. This section is
record shows that a judgment in an ac- materially different from sec. 155 of Code
tion for tort or damages was rendered by of 1854. For cases construing sec. 155, see
default, it can not be sustained. Had Harman v. Wilson, 1 Duv. 322; Haneyv*
the record recited that the case had been Tempest, 3 Met. 95 ; Vaughn v. Mills, 1^
" heard," or anything to show that there B. M. 633 ; Ruggles v. Moore, 18 B. M. SSI-
was any proof, the court would presume § 129, (1) Material variance. Wher&
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his prejudice, in maintaining his action or defense upon the
merits. A party who claims to have been so misled must show-
that fact to the satisfaction of the court; and, thereupon, the court
may order the pleading to be amended, upon such terms as may be
just.
§ IJO iiiT] Immaterial variaoce — practice — ameodment If such variance
be not material, the court may direct the fact to be found according
to the evidence, and may order an immediate amendment.
petition alleged that certain property
was purchased from defendant and proof
showed that it was a purchase of double
the amount from defendant and another
the variance is fatal. Gray v. Garrison,
2 R. 218.
(2) Judgment can not be rendered
against a defendant as an individual
when the petition shows that he executed
the obligation sued on in his fiducial
capacity as administrator. Lusk v. An-
derson, 1 Met. 436.
(3) Plaintiff instituted suit upon a note
executed by the defendant to another
person, and alleged that the note had
been executed to himself; it had not
been assigned to plaintiff. Held that
the variance was fatal, and plaintiff
could not recover. Dodd v. King, 1 Met.
430.
(3) Negfigeace. The allegation of will-
ful negligence necessarily includes all in-
ferior grades, and, upon failing to estab-
lish his right to punitive damages,
plaintiff may recover compensatory dam-
ages, if the defendant is a railroad com-
pany and the person injured was not at
the time an employe. L., C. & L. R. R.
Co. V. Case; 9 Bush 728 ; Claxton v. L. &
B. S. R. R. Co., 13 Bush 636. And a
general allegation that injury was caused
by negligence and carelessness of defend-
ant is sufficient. Chiles v. Drake, 2
Met. 146.
(4) Negligence — where plaintiff speci-
fies the character of negligence he relies
on he can not recover by showing a dif-
ferent state of negligence. McCain v.
L. A N. R. R. Co., 13 R. 809 ; nor can he
prove a different state of negligence from
that set out in petition. Greer v. L. &
N. R. R. Co., 94 Ky. 169.
(5) Practice. The proper mode to take
advantage of a variance between allega-
tion and proof is a motion to instruct the
jury as in case of a non-suit. Mitcher-
son V. Grays, 4 B. M. 400.
(6) In an action against the city for
work and labor done on its streets at its
instance, the petition averred the per-
formance of the work, but failed to state
such facts as would make the city liable.
After the proof was heard and the jury
instructed to find for defendant, plaintiff
offered an amended petition stating facts
sufficient to hold city liable. Held that
the plaintiff should have been allowed to
file the amendment. Kearney v. City of
Cov., 1 Met. 339 ; and see sec. 130.
(7) Variaace— not material If the vari-
ance between the answer and proof is
not such as to' mislead the plaintiff in
maintaining his action, and does not
affect his substantial rights, it will not be
ground for reversal. If the variance is
material, the attention of the court
should be called to it, and an effort made
to have pleadings corrected. Woodcock
V. Farrell, 1 Met. 437; and see sec.
130.
(8) In an action upon a writing pur-
porting to be an unconditional guaranty,,
but which did not express the considera-
tion upon which it was executed, the
averments of the petition as to the con-
sideration showed that the contract was
conditional, depending for validity upon
the performance of certain acts by the
promisee. Held that there was no vari-
ance between the contract sued on and
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104
MISTAKES IN PLEADINGS — AMENDMENTS. [TITLE VH
§ 131 [i«t] Variaoce when fatal — actloo oo contract If, however, the alle-
gation of the claim or defense, to which the proof is directed, be
unproved, not in some particular or particulars only, but in its general
scope and meaning, it is not to be deemed a case of variance within
the last two sections, but a failure of proof.
[In an action on a contract alleged to have been made by several
defendants, in the event the evidence shall show the contract to
have been made with less than all those defendants by whom it is
alleged to have been made, this shall not be deemed either a vari-
ance or failure of proof, but judgment may be rendered against the
party or parties shown to be bound and in favor of those shown
not to be bound.] ( Words in brackets added by act of 4888.)
§ 132 [i«t] Ameodmeot before answer — notice. The plaintiff may, at any
time before answer, amend his petition without leave ; but, unless
the allegation of the petition. Stead-
man V. Guthrie, 4 Met. 147.
(9) In an action to recover for services
alleged to have been performed in 1863,
proof that they were performed in 1864
is not a material variance. Gentry v.
Doolin, 1 Bush 1.
(10) A bill of exchange payable in
** current exchange" was declared on as
a bill for money. Held that the vari-
ance was immaterial. Morrison v. Tate,
1 Met. 569.
(11) In a suit by a surety against a
co-surety, to recover money paid for their
principal, the petition failed to allege the
insolvency of the principal, and no proof
of his insolvency could be admitted.
Boiling v. Doneghy, 1 Duv. 220.
(12) The allegation in the petition
that the note sued on was executed and
delivered to the plaintiffs, being admitted
by failure to deny it, the variance be-
tween the petition and note in the name
of one of the plaintiffs was waived,
being immaterial. Anderson v. Rogers,
1 Bush 200.
§131. (1) Pailareof proof— what is. In
Oossom v. Badgett, 6 Bush 97, it was held
that in an action against two upon an
Alleged joint undertaking, a judgment
Against one upon proof that the contract
was made alone with him could not be
sustained. But see now amendment to
this section.
(2) In an action against one, the evi
dence disclosed that the defendant made
the contracts sued on as a member of a
firm, and for the firm. Held that a
judgment against him was proper. Waits
V. McClure, 10 Bush 763.
§132. (1) Ameodmeot — lotlce of flUof.
One day's notice is only required where
the plaintiff amends his petition without
leave, and less than five days before term.
When the amendment is made by leave
of court, and in presence of defendant, no
notice is necessary. Hunt v. Semonin, 79
Ky. 270.
(2) New caose of actloo— sommoos oeces-
sary. Summons is necessary on an
amended petition which states a new
cause of action (Cecil v. Sowards, 10 Bush
96), although it is Died after summons
has been executed on petition, and before
answer. Rutledge v. Vanmeter, 8 Bush
354 ; and see note 1 to sec. 40.
(3) If amendment does not present a
new or distinct cause of action, summons
is not necessary. Joyes v. Hamilton, 10
Bush 544 ; L., C. & L. R. R. Co. v. Case,
9 Bush 728.
(4) Where the original petition sought
to make defendant liable as indorser of a
bill, and an amended petition charged
him with the conversion of the bill, the
amendment set up a new cause of action.
So, if A should institute an action against
B upon a note alleged to have been exe-
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TITLE Vn] MISTAKES IN PLEADINGS — AMENDMENTS.
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the amendment be filed five days before the term at which the
defendant is summoned to answer, he shall give to the defendant
notice, of one day, of his intention to amend. {May be fled in vaca-
tion to cure defecty sec. 109.)
§ 133 [ito] Demurrer overmled, party may plead. Upon a demurrer being
overruled, the party demurring may file an answer, reply or addi-
tional pleading.
§ 134 [i«i] Amendments generally — trivial error. The court may, at any
time, in furtherance of justice, and on such terms as may be proper,
cause or permit a pleading or proceeding to be amended, by adding
or striking out the name of a party ; or, by correcting a mistake in
cuted for goods sold and delivered, and
it appeared B was not liable on the note,
if A should file an amended petition upon
an account for the same goods, it would
present a new cause of action. Hyatt v.
Bank of Ky., 8 Bush 193.
(5) In an action to sell land owned by
infants summons on petition was properly
executed, afterward an amended petition
was . filed asking the sale of town lots
owned by them also. Summons on
amended petition was necessary. How-
ard V. Singleton, 15 R. 309.
(6) Practice. The plaintiff has a right
to file an amended petition before answer
filed, and the court has no judicial dis-
cretion to reject it. Champion v. Rob-
ertson, 4 Bush, 17 ; but after answer is
filed leave of court must be obtained to
file an amended petition. Mount v. L. &
N. R. R., 2 R. 221 ; and see further sec.
134 and notes thereto.
§134. (1) Ameidneits — departire. In
an action by a ward against her guard-
ian, to recover on an assignment of a
note, an amended petition alleging that
the guardian had failed to account for
money in his hands was a departure, and
should not have been allowed ; but, if
filed, plaintiff should have been required
to elect which action she would prose-
cute. Humphrey v. Hughes, 79 Ky. 487.
(2) Appeal Irooi Inferior to circait coart.
On an appeal to the circuit court th£ de-
fendant has a right to make all the de-
fenses he has, and the court may allow
the defense to be changed or new de-
fenses to be made, as if the case had
been originally brought in that court.
Willis V. McNeal, 8 R. 411.
(3) The plaintiff in justice's court filed
an affidavit showing defendant's indebted-
ness to him in the sum of $59, and ob»
tained an attachment; no petition was
filed. On an appeal to the circuit court,
the plaintiff was allowed to file an
amended petition setting up his cause of
action. Puff v. Hutcher, 78 Ky. 146.
Section 705 requires pleadings, when
amount is over $50, to be in writing.
(4) Attachments. As to amendment of
petition, or affidavit for, see sec. 268 and
notes thereto.
(5) Demiirer. When a demurrer to the
petition is sustained after answer filed
and at a subsequent term of the court,
the right to amend is the same that it
would have been at the appearance term
had a demurrer then been sustained.
Williams v. Gordon, 11 Bush 693 ; plead-
ing may be amended after demurrer;
sec. 134.
(6) Discretioi of coart The only limi-
tation upon the discretion of the court
in allowing amended pleadings is, that
they must be in furtherance of justice,
and must not change substantially the
claim or defense. A demurrer having
been sustained to the petition, the court
did not abuse its discretion in allowing
an amended petition to be filed, although
an answer and reply had boen filed.
Greer v. City of Gov., 83 Ky. 410.
(7) An amended answer denying a fact
jidmitted by mistake in the original an-
swer should be permitted to be filed.
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106
MISTAKES IN PLEADINGS — AMENDMENTS. [XITLE VIT
the name of a party, or a mistake in any other respect ; or, by insert-
ing other allegations material to the case ; or, if the amendment da
not change substantially the claim or defense, by conforming the
pleading or proceeding to the facts proved. And, if a proceeding
taken by a party fail to conform in any respect to the provisions of
this Code, the court may permit an amendment of such proceeding,
so as to make it conformable thereto. And, if the allegations of a^
The allowance or rejection of an amend-
ment is not usually a cause for reversal,
unless there has been a manifest abuse
of the discretion of the court. Downing
V. Bacon, 7 Bush 680.
(8) Diirioc trial In an action against a
city for work done at its instance, the
petition alleged the performance of the
work and presented a cause of action.
The proof was that the work was done
under a special contract, by which
plaintiff was to look to thdlot owners for
pAyment. The court instructed the Jury
to And for defendant, after which, but
before verdict was rendered, plaintiff
offered an amended petition alleging
facts sufficient to render city liable on
special contract. Held that the amend-
ment should have been permitted to be
filed. Kearney v. City of Cov., 1 Met.
339.
(9) The chancellor may, even after the
trial is commenced, permit the plead-
ings to be amended when it is apparent
that the ends of Justice require it.
Rogers v. Rogers. 15 B. M. 364.
(10) In an action upon a note the de-
fendant alleged that it contained $160
usurious interest ; the plaintiff by reply
admitted that the note contained $36
usury. During the trial the plaintiff
was permitted, upon the vague statement
of a witness that there was no usury in
the note, to file an amendment denying
that it embraced any usury. Held that
it was error to allow the amendment.
Hubble V. Murphy, 1 Duv. 278.
(11) After the issues are made up and
the cause ready for hearing, it is not an
abuse of discretion to refuse to permit
an amendment pleading the statute of
limitation to be filed. Yocum v. Fore-
man, 14 Bush 494 ; Donnelly v. Pepper,
91 Ky. 363.
(12) When an amended answer con-
forms to the proof and does not substan-
tially change the defense, and the filing
of it is in furtherance of Justice, it is
not error to set aside submission and
permit it to be filed. Nat. Mutual As-
sociation V. Jones, 84 Ky. 110; and the
court may permit an amendment filed
after Jury is sworn. Wade v. Moore, ^
R. 392.
(13) Duty of court If the court per-
mits a defective pleading to be filed over
the objection of the adverse party, the
court should in some way notify the
party of the defect, and give him an op-
portunity to correct it, before disregard-
ing it on the final hearing because of
such defect. Ashbrook v. Roberts, 82^
Ky. 298.
(14) Jidfneiit After final Judgment
it is too late for either party to file
amendments. Meadows v. Goff, 90 Ky.
540; Brown v. Vancleave, 86 Ky. 381.
(15) Proceedings upon an amended
petition filed after Judgment are nulli-
ties. Brown v. Vancleave, 86 Ky. 381.
(16) After a petition has been dis-
missed an amended petition can not be
filed at the next term of the court, a»
there is no i>etition in court to amend,
and even if it be considered as an orig-
inal petition, if it sets up same matter as-
was contained in original petition, the
Judgment dismissing first petition is a.
bar. Houston v. Kidwell, 12 R. 386.
(17) Misoomer in name of defendant
may be corrected by amendment, and
when mistake in name is discovered
after cause of action is barred, defend-
ant yrho has answered will not be allowed
to rely on plea of limitation. Heckman
V. L.&N. R. R., 85 Ky. 631.
(18) When sued by the wrong name,
the defendant must disclose his true
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TITLE VIl] MISTAKBS IN PLEADINGS — AMENDMENTS.
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pleading be so indefinite or uncertain that the precise nature of the
claim or defense is not apparent, the court may require the pleading
to be made definite and certain by amendment. The court must, in
every stage of an action, disregard any error or defect in the proceed-
ings, which does not affect the substantial rights of the adverse party ;
and no judgment shall be reversed or affected by reason of such error
or defect.' {Party in fault must pay cost of sec. 113 ; amendment of
affidavit for attachments sec. 268)
name in making objection to the mis-
nomer by plea in abatement or other-
wise. L. & N. R. R. Co. V. Hall, 12
Bush 131.
(19) Practice. An amended petition
not noted of record, but treated by the
parties as filed, and certified by the clerk
as part of the record, will be regarded as
part of it. Bowler v. Lane, 3 Met. 312 ;
and where a reply was treated by parties
and lower court as an amendment to the
petition it will be so regarded by Court
of Appeals. Ruffner v. Ridley, 81 Ky.
165.
(20) The court should not permit an
amended answer to be filed over the ob-
jection of the adverse party when it pre-
sents no defense. Patrick v. Swinney,
5 Bush 421.
(21) In an action on an alleged con-
tract to pay $50 annually for the use of a
bridge, the testimony established, ^ot an
express, but an implied, contract to pay
the amount, and the court should have
permitted plaintiff to amend its petition
to enable it to recover on the implied
promise if it failed to establish an ex-
press agreement to pay< Frankfort
Bridge Co. v. Frankfort, 18 B. M. 41.
(22) If a petition presents in substance
a cause of action, but is defective in
form, the remedy is by motion to make
more specific, and not by demurrer; and
failure to make motion before answer is
waiver of objection. Pugh v. White, 78
Ky. 210 ; Posey v. Green, 78 Ky. 162 ; 4
Met 330.
(23) Prayer of petitioi. Amendment of
BO as to make it conform to the cause of
action set forth in the petition is not a
new cause of action. Durrett v. Stewart,
88 Ky. 665.
(24) ^elected pleadiif ouide part off record.
See McCain v. L. & N. R. R. Co., 13 R.
800 ; and notes to sec. 335.
(25) Retara of case ffroa Coirt of Appeals.
In an action where there was no answer
and no motion to vacate an attachment
obtained upon insufficient allegations and
reversed by the Court of Appeals, the
plaintiff on the return of the case should
have leave to amend his petition. Clark
V. Seaton, 18 B. M. 226. The right to-
amend after reversal because of defective
pleadings is the same as before trial. Vest
V. Norman, 1 R. 817.
(26) Time aoMadmeiit takes eflM. Mat-
ter set up in an amended pleading will
not relate back to the time of filing the
original, so far as the rights of persons-
not parties to the suit are concerned ;
and the action as to the matters set up in
the amendment will be considered pend-
ing as to them, only from the time the
amendment is filed. Hawes v. Orr, 10
Bush 431.
(27) Verdkt— after. The court should
not, after trial and verdict, set aside the
verdict for the purpose of allowing a
pleading or an amended pleading to be
filed. Evans v. Stone, 80 Ky. 78; see
Mount V. Tappey, 7 Bush 617.
(28) Waiver of objectioo. Failure to ob-
ject to filing amended answer, or to move
to strike it from files, waives objection to
it. Bedford v. Graves, 8 R. 262.
(20) WitMrawaJ of pleadiof. A party
to an action may, in the discretion of the
court, withdraw any pleading filed by
him, unless it works an injury to his ad-
versary'. Humphrey v. Hughes, 79 Ky.
487.
(30) Where one party has the right to
avail himself of another's defense the
latter can not, over the objection of the
former, withdraw that defense after
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108
MISTAKES IN PLEADINGS — AMENDMENTS. [XITLE VH
§ 115 [Its] Sopplemeiital pleadiof — actlofl to enforce lien. A party may
be allowed, on motion, to file a supplemental pleading, alleging ma-
terial facts occurring after the filing of the former pleading ; but if a
plaintiff, having a lien for a debt due and a debt not due upon prop-
erty which he seeks to subject, state both claims in his petition, he
may, upon a suggestion of record that one of them has become due,
pendente litCy have judgment for a sale of the property therefor.
§ 136 [!<•] Continiuioce oo amendmeot. If a party amend a pleading
or proceeding, and the court shall be satisfied, by affidavit or other-
wise, that the adverse party can not be ready for trial in consequence
thereof, a continuance may be granted to some day in the same term
or to another term of the court.
§ 137 [i«4] VerificaUon of petition before trial sufficient A petition filed
without verification shall not be dismissed for that reason, if the veri-
fication be made on or before the calling of the action for trial.
§ 138 [i««] Verification not necessary after trial I>efin8. No objection shall
be taken, after the commencement of the trial, to any pleading for the
want of, or a defect in, the verification. {When trial begins^ sec. 590.)
commencement of trial. Hearn v. Lan-
der, 11 Bush 669; nor can a creditor,
seeking to set aside a fraudulent convey-
ance, dismiss his action to the prejudice
of other creditors. Heidrich v. Silva,
89 Ky. 422; Baker v. Kinnaird, 94 Ky.
5 ; Roberts v. Phillips, 11 Bush 11.
§135. (1) Sapplemeotal pleadiags. Where
a mortgagee institutes suit to recover
possession of mortgaged property before
forfeiture, and the forfeiture occurs i)end-
ing the action, he may by supplemental
petition set up the forfeiture. This sec-
tion applies to ordinary as well as equi-
table actions. Brookover v. Hurst, 1 Met.
665.
(2) The facts which this section al-
lows to be presented in the supplemental
petition must be material to the case as
presented in the original petition ; they
must be such as serve to explain or per-
fect the cause of action originally stated.
Taylor v. Moran, 4 Met. 127.
(3) The plaintiff in an action for slan-
der can not, by an amended petition, set
up slanderous words spoken pending the
action as a distinct ground of recovery
or to enhance the damages ; but may set
them up to show the intent with which
the words charged in the original peti-
tion were spoken. 4 Met. 127.
(4) A plaintiff who holds lien notes
due, and not due, may set up all of them
in his petition, and, by suggestion of
record, have judgment for notes not due
as they mature, but this rule only ap-
plies to lien notes, and a supplemental
pleading is required as to other notes.
Dant V. Head, 90 Ky. 255.
(5) In an action upon three lien notes
judgment was rendered ordering sale of
land to satisfy two of them that were
due, afterward the third note fell due,
and the former judgment was set aside
and judgment rendered directing sale to
pay all the notes. Held that the court
had power to set aside first judgment
after the term, and its action was proper.
Carr v. Watkins, 10 R. 342.
§ 136. Coitioiiaoce oo anendmeot When
several causes of action are set out, or the
same cause is set forth in different para-
graphs, the striking out of any of the
causes of action or paragraphs is not
such an amendment as will authorize a
continuance. Branshaw v. Berry, 2 R. 58.
§138. (1) Oblectioo — how takeo. Ob-
jection to pleading for want of veriflca-
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TITLE Vll] INTERROQATORIKS. 109
§ 139 [iM] Verificatioo — ameodneots aUowed without Courts may, in
their discretion, permit the amendments authorized by this chapter
.to be made without being verified, unless a new and distinct cause of
action or defense be thereby introduced.
CHAPTER IX.
INTERROGATORIES.
§ 140. ISquitable actions in — answers read as deposition.
§ 141. Party answering not confined to mere response.
§ 143. Time to answer — effect of delay on trial.
§ 143. Ordinary actions — when allowed in.
§ 144. Ordinary actions — time to answer.
§ 145. Trial not postponed because of failure to answer.
§ 146. Application of section 141.
§ 147. Answers to distinguish between knowledge and information.
§ 148. Verification of answers — how made.
8 149, Party — ^when compelled to appear as witness.
§ 150. Claim or defense when sustained by failure to answer.
§ 151. Court may compel answers — penalty for failure.
§ 140 [It Equitable actions in — answers read as deposition. In equi-
table actions, a party may annex to his pleading written interrogato-
ries to the adverse party, concerning any material allegation thereof;
and answers thereto, on oath, may be read by either party, as a depo-
sition between the party interrogating and the party answering.
§ 141 [lit] Party answering not confined to mere response. The party an-
swering shall not be confined to responding merely to the interroga-
tories, but may state any facts concerning tiie cause of action to
which the interrogatories refer, and they may likewise be read as a
deposition. {If answers state ne\o matter ; how controverted^ sec' 60S.)
lion should be by rule against the party and the right can not be regained by
failing to verify it, and upon his fail- withdrawing answer. Butler v. Church
ureto have it stricken from the record. of C!onception, 14 Bush 540; Meador v.
Wheeler v. Wales, 3 Bush 225 ; Harris v. Turpin, 4 Met. 93.
Ray, 15 B. M. 628. 1 14a loterrofatories. Party answering
(2) To take advantage of error in over- interrogatories may, on the trial of the
puling motion to require party to verify action, read his answers as a deposition,
his pleading, the decision must be ex- Ecklar v. Galbreath, 5 Bush 617 ; Short
cepted to at the time. Cobb v. Stewart, v. Tinsley, 1 Met. 397. But they can not
4 Met. 255 ; Mason v. Mason, 5 Bush 1S7. be so read unless authenticated as re-
(3) Waiver. Right to require plaintiff quired by the Code. Ford v. Thompson,
to verify petition is waived by answer, 1 Met. 580 ; see Musick v. Ray, 3 Met.
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110 INTEREOGATORIES. [TITLE VII
§ 142 [it9i Time to aoswer-— effect off delay oo trial. Ititerrogatoriee an-
nexed to a petition shall be answered when the party is required to
answer the petition; if annexed to any other pleading, they shall
be answered in twenty days after notice of the filing thereof shall be
given to the adverse party or his attorney ; but if answered twenty
days before the term at which the action stands regularly for trial,
the action shall not be postponed on account of their not being sooner
answered. ( When party interrogated can not demand trials sec. 365.)
§ 143 [iTo] Ordinary actions — wlien allowed in. In ordinary actions, a
party may annex to his pleading written interrogatories to an adverse
party concerning any material allegation —
1. If the party interrogated do not reside within twenty miles
from the place where the action may be pending.
2. If the party interrogated be unable to attend court oji account
of infirmity or imprisonment, or be a female.
§ 144 LiTi] Ordinary actions — time to answer. In ordinary actions, inter-
rogatories annexed to the petition shall be answered when the petition
is required to be answered ; if annexed to any other pleading, they
shall be answered at or before the calling of the cause for trial, if the
party interrogated had reasonable notice of their being filed.
§ 145 [ITS] Trial not postponed because off failure to answer. The trial of an
ordinary action shall not be postponed on account of the failure to an-
swer the interrogatories, if the party interrogated be present in court
at the trial, so that he may be orally examined ; nor, in case of his
absence, without an affidavit showing the facts which the party
believes will be proved by the answers thereto, and that the party has
not filed the interrogatories, nor omitted to file them, for the purpose
of delay; nor, if the party will consent that the facts stated in the
affidavit shall be considered as admitted by him.
§ 146 [1T91 Application off section 141. The provisions of section one
hundred and forty-one shall apply to the answers to interrogatories in
ordinary actions. (Tf answers state new matter; how controverted^ sec. 609.)
§ 147 [^T4] Answers to distinguish between knowledi^e and Infformatjoa. A
party, in answering such interrogatories, shall distinguish clearly
between what is stated from his personal knowledge and what is
stated from information or belief merely. An unqualified statement
of a foct shall be consixiered as made from his persoiijal knowledge.
428. Defendant is not bound to answer ier, H E- 5 ; nor to an6w,er wpy question
interrogatory contained in body of peti- wbicb would 8i*bJ6ct him to cri^iluAl
tion nor unless annexed to it. Burnett or pencil proseouiiop. Cole v. Wilson, IS
V. Garnett, 18 B. M. 68 ; McCrae v. Gun- B. M. 212.
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TITLE VIl] INTERROGATORIES. Ill
§ 148 [ITS] Verification of answers — liow made. Answers to such inter-
Togatories shall be verified by the affidavit of the party answering, to
^he effect that the statements in them made of his personal knowl-
edge are true, and those made from the information of others he
believes to be true.
§ 149 [If] Party — ^wlien compelled to appear as witness. If a party reside
within twenty miles from the place in which the action may be
pending, he may be summoned by the adverse party, and be com-
pelled to testify on the trial of an ordinary action as any other witness.
§ 150 [ITT] Claim or defense when sustained by failure to answer. If a party,
filing interrogatories, file an affidavit that he verily believes that any
vsubject of the interrogatories is in the personal knowledge of the
adverse party, and that his answers thereto, if truly made, will sustain
the affiant's claim or defense, or any part thereof, and the adverse
party shall fail, after reasonable time, to answer them, the claim or
defense, or the part thereof mentioned in such affidavit, shall be
deemed to be sustained.
§ 151 [1TS1 Court may compel answers — penalty for failure. The court may
-compel answers to interrogatories by process of contempt, and may,
-on the failure of the party to answer them, after reasonable time,
•dismiss the petition, or strike out the pleading, of a party so failing.
{In action on constructive service court may propound^ sec. 4^^.)
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112 ORDER OF ARREST — WHEN AND HOW OBTAINED. [TITLE VUI
TITLE YUI.
PHOVISIONAL REMEDIES.
Chafter I. Arrest and bail, 152.
II. Claim and delivery of personal property, 180.
III. Attachment, 194.
IV. Injunction, 271.
V. Receivers, 298.
VI. Deposit in court, 303.
CHAPTER I.
ARREST AND BAIL.
Article 1. Order of arrest — when and how obtained, 152.
2. Proceedings upon an order of arrest, 157.
3. Liability and discharge of bail and of officer, J69.
4. Motion to vacate an order op arrest, 177.
ARTICLE 1.
ORDER OF ARREST — WHEN AND HOW OBTAINED.
§ 152. Defendant in civil action — how arrested.
g 153. Order of arrest — grounds of — wlio may issue.
§ 154. Bond to be executed before order issues.
8 155. Order of arrest — requisites of.
§ 156. Return day of order.
§ 152 [iTf] Defendant in civil action — liow arrested. A defendant in a
civil action can be arrested and held to bail, only upon the conditions
and in the manner prescribed in this chapter.
§ 153 [ISO] Order of arrest — grounds of — who may issue. / An order for
the arrest of the defendant shall be made bj the clerk of the court
in which the action is brought or pending, at its commencement, or
at any time before judgment, if an affidavit of the plaintiff be filed
in his office showing —
1. The nature of the plaintiff's claim.
2. That it is just.
§153. (1) Affidavit indlspeosable. The (2) Arrest— iosafficieot froaods for. The
affidavit is made an indispensable pre- plaintiff filed his affidavit showing that
requisite for the order of arrest ; without defendant owed him $450, and obtained
it the clerk has no authority to make the an order for his arrest on the ground that
order, and the arrest and taking bail he was about to depart from the State,
bond from the defendant before affidavit without leaving enough property therein
filed is unauthorized. Pauer v. Simon, to satisfy plaintiff's claim. It was
6 Bush 514. proved on the trial that defendant was
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TITLE Vlll] ARREST AND BAIL. 113
3. The sum or value which the affiant believes the plaintiff
ought to recover.
4. That the affiant believes, either that the defendant is about to
depart from this State, and, with intent to defraud his creditors, has
concealed, or moved from this State, his property, or so much
thereof that the process of the court after judgment can not be
executed; or that the defendant has money, or securities for
money, or evidences of debt, in the possession of himself, or of
others for his use, and is about to depart from this State without
leaving property therein sufficient to satisfy the plaintiff''s claim.
{Form of affidavit ^ page 629. How and before whom made, sees, 551^
649. When by agent or attorney ^ sec. 650. How order obtained before
debt is duey sees. 237 to 242; when may issue on holiday ^ sec. 665)
§ 154 [181] Bood to be executed before order issues. The order of arrest
shall not be issued by the clerk until a bond is executed in his office,
with good sureties, to the effiect that the plaintiff shall pay to the de-
fendant all damages which he may sustain by reason of the arrest, if
the order be wrongfully obtained, not exceeding double the amount
of the plaintiff's claim stated in the affidavit. {Form of bondj page
629. If defective J new one may be executed^ sec. 682. Sureties may be
sworn ; qualification of sees. 683, 684)
§ 155 [iM] Order of arrest — requisites of. The order of arrest shall be
addressed and delivered, with a copy thereof, to the sheriff. It shall
state the names of the parties to the action, the court in which the
action is brought or pending, and the amount of the plaintiff's claim
specified in the affidavit ; and shall require the isheriff to arrest the
defendant, and hold him to bail in the sum of the plaintiff's claim,
with the probable costs of the action, not exceeding twenty-five dol-
lars, and to make return of the order on a day to be named therein,
with the bail bond, if any be taken. {Form of order , page 630. Must
indorse time of reception, sec. 674; order may be addressed and delivered
to other officer, or person, sees. 667, 668.)
§ 156 [!•«] Return day of order. The return day of the order of arrest,
if issued at the commencement of the action, shall be the same as
that of a summons; if issued afterward, it may be another day in
term, at the option of the plaintiff. ( When summons returnable, sec. 44.)
about to leave the State, and that he had, " Whether the evidences of debts de-
at the time the order of arrest was is- posited in the bank should be regarded
sued, cash notes amounting to about as property within the meaning of the
120,000 on deposit in a Richmond bank, Code, we are satisfied the turnpike stock
and that he owned turnpike stock of should be ; and as it was apaply sufficient
the value of $1 000. The court say : to satisfy plaintiff's claim, the order of
(8)
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114 PROCEEDINGS UPON AN ORDER OF ARREST. [tITLE YIII
ARTICLE 2.
PROCEEDINGS UPON AN ORDER OP ARREST.
§ 157. Order — how executed.
§ 158. Defendant committed to jail unless bailed — how discharged.
§ 159. Deposit of money in lieu of bail.
§ 100. Sheriff to pay into court money deposited.
§ 161. Court to make orders for its keeping and disposition.
§ 162. Sheriff liable for money deposited.
§ 163. Bail of defendant — requisites and effect of bond.
§ 164. Qualifications of bail.
§ 165. Objection by plaintiff to sufficiency of bail.
§ 166. Officer exonerated from liability — when.
§ 167. Proceedings if bail adjudged insufficient.
§ 168. Insolvent debtor's oath — defendant may take.
§ 157 [!•*] How order executed. The sherift* shall execute the order
of arrest by arresting the defendant and delivering to him a
copy thereof. {When may execute on holiday^ sec, 665. May break
doors to execute^ sec. 676. When defendant privileged from arrest^
sec. 666.)
§ 158 [i8»i Defendant to be committed to Jail unless bailed — how discharged.
The defendant, when arrested, shall be committed by the sheriff to
the jail of his county, a copy of the order of arrest being delivered
to the jailer; and, unless bailed, shall be kept in custody rn the man-
ner provided by law in the case of a defendant taken in execution
upon a judgment in a civil action, until discharged in the mode and
upon the conditions applying to such defendant. {Mode of dis-
charge, see Ky. Stat.^ sec. S180.)
§ 159 [is«] May deposit money in lien of bail. The defendant may, before
or after giving bail, deposit in the hands of the sheriff, or in court,
the sum of money mentioned in the order of arrest ; whereupon, he
shall be discharged, or his bail, if any be given, shall be released.
§ 160 [itTj Sheriff to pay into court money received by him. The sheriff
shall pay into the court the money received by him in vacation, in
lieu of bail, on the first day of the next term. If it be received dur-
ing a term, he shall pay it into the court immediately.
arrest was properly vacated." Curtis §157. Officer— doty of to execute order. A
Field V. Montmollin, 5 Bush 455. reasonable discharge of the duties of the
(3) An intention of a resident of this office at all times and during all hours is
State to leave the State temporarily on a responsibility attached to the office of
business, or even on a visit, to return sheriflf; and it was held that a sheriff
within a reasonable time, will not author- was liable in an action for damages for
ize an ordepof arrest. Myall v. Wright, refusing to execute in the night time an
2 Bush 130. order of arrest, he being informed at the
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TITLE Vin] PROCEEDINGS UPON AN ORDER OF ARREST. 115
§ 1^1 [!••] Court it nuke orden lor Its keepinf aoi disposHlofl. The court
shall make proper orders for the safe-keeping of money deposited in
lieu of bail. It may direct the sheriff to keep the money, and, after
judgment in the action, shall order it to be paid to the party en-
titled thereto, according to the result.
§ 162 [lit] Sheriff IfaUe for money deposited. Money deposited in the
hands of the sheriff, in lieu of ^j^-il, or directed by the court to be
kept by him, shall be/ held upon "his official responsibility ; and he
and his sureties shall be liable, and may be proceeded against, for
any default in Relation thereto, as in other cases of delinquency.
§ lilcito] Btil of defetadtnt — rtqaisites and effect of bond. Bail may be
given by the defendant on his arrest, or at any time afterward before
jpdgment, upon giving bond with good surety to the plaintiff, in the
presence of the sheriff, or of the jailer if the defendant have been com-
mitted to jail, to the effect that, if judgment shall be rendered in the
action against the defendant, he will render himself amenable to the
process of the court thereupon. The bond, when accepted, shall be
returned to the clerk's office, and the defendant shall be discharged.
(Form of bondy page 630; if defective new one ynay be executed^ sec. 682.)
§ 144 [iti] Qualifications of liail. The bail must be a resident of this
State, and be worth double the sum specified in the order of arrest,
beyond the amount of his debts, and have property in this State,
subject to execution, at least equal in value to that sum. If two or
more become bail, they must, in the aggregate, possess those qualifi-
cations. The bail, if so required by the sheriff, shall make affidavit
of their qualification before him.
§ 1(»5 [Its] Objections by plaintiff to sufficiency of bail. Objection to bail,
for insufficiency, may be made in court, during the term at which
the bail bond is returned, and not afterward, unless the bond be re-
turned within the last three days of the term ; in which case, the
motion may be made on the first day of the succeeding term. The
motion can not be made without notice thereof to the officer who
accepted the bond. And if the notice be adjudged unreasonable,
the court may continue the motion to some day in the same or the
next succeeding term.
time it was delivered to him that the when the court directs the sheriflf to keep
next morning would be too late. Phillips it. They are not responsible when the
V. Ronald, 3 Bush 244. court directs the sheriff to loan out the
§142. S«r«tits of officer — liability ot money, if, having done so, he fails to
The sureties of a sheriff who has received make the required report concerning it.
money in lieu of bail are responsible, first, Sanders v. Parrott, 1 Duv. 292.
when the sheriff has failed to account for §163. (1) Bail bood. It was held in
the money to the oourt : and seconcU Shuttle worth v. Lievi, 13 Bush 195, that
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116 LIABILITY AND DISCHARGB OP BAIL AND OF OFFICER. [tITLE VHI
§ 166 [!•<] Officer exonerated from liabUhy — ^whea. If the motion be not
made, or the bail be not thereupon adjudged insufficient, the officer
shall be exonerated from liability by reason of the insufficiency of
the bail.
§ 167 Lit4i Proceedings if twil adjndged insnfficieiit Judgment that bail is
insufficient shall not release them, but an order shall foHhwith be
made to rearrest the defendant; and, thereupon, the same proceed-
ings may be had, and with the like effect, as are directed upon an
order of arrest.
§ 168 [it«] insolvent debtor*8 oath — defendant may talce. Upon judgments
in actions in which the defendant has been arrested and held to bail,
and in which the order of arrest has not been vacated, an execution
against the body of the defendant may be issued, upon which the
same proceedings shall be had, and the defendant shall be dealt with
in the same manner, as is provided by law in the civil actions in
which executions may be issued against the body of the defendant;
except that the oath of insolvency, upon reasonable notice, may be
taken at any time after the arrest, by delivering to the plaintiff, his
agent or attorney, a schedule of the property intended to be sur-
rendered, although said schedule may not have been delivered ten
days before the taking of such oath. This exception shall also apply
to section one hundred and fifty-eight of this Code. {See Kentucky
Statutes^ see. 2180^ as to oath of insolvency ; form of execution against
body of defendant^ page 6S9.)
ARTICLE 3.
LIABILITY AND DISCHARGE OP BAIL, AND OF OFFICER.
§ 169. Surrender of defendant discharges bail.
§ 170. Bail may arrest at have defendant arrested.
§ 171. Bail— liability how fixed and amount of.
§ 172. Action against bail.
§ 173. Exoneration of bail — what will cause.
§ 174. Officer — when liable as bail.
§ 175. Officer— liability of as bail how fixed.
§ 176. Bail— liability of to officer.
§ 169 [!••] Surrender of defendant dischari^es bail. A surrender of the
defendant to the sheriff of the county in which he was arrested, with
an unnecessary stipulation in a bond ren- issued before affidavit made is invalid,
dered it invalid ; but see now Ky. Stats., Pauer v. Simon, 6 Bush 514.
sec. 4569. (3) Reqnisites of bond. It is essential to
(2) Bond taken under an order of arrest the validity of the bond that it should
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TITLE Vm] LIABILITY AND DISCHARGE OF BAIL AND OF OFFICER. 117
a delivery to him of a certified copy of the order of arrest and of the
bail bond by the defendant, or by his bail, at any time before the
liability of the bail is fixed, shall discharge the bail. The sheriff shall
give to the bail a written acknowledgment of the surrender, and
commit the defendant to the jail of his county, with his order
indorsed upon the copy of the bail bond delivered to the jailer.
§ 170 [i*T] Bail may arrest or have defeadant arrested. For the purpose
of surrendering the defendant, the bail may, at any time or place,
arrest him, or authorize, in writing, indorsed upon a copy of the order
of arrest and bail bond, the sheriff or any constable to do so.
§ 171 [!••] Ball — liability how fixed aad afflonnt of. A return of ^^not
found " upon an execution against the body of the defendant, placed
in the hands of the sheriff of the county in which he was arrested,
within twenty days after it might have issued upon the judgment,
shall be necessary to fix the liability of the bail, which shall be to
pay the amount of the judgment and costs. /
§ 172 [lit] Actioo a^aiiist bail. The bail can be proceeded against in a
separate action only.
§ 173 [sooi Exooeratioo of bail — ^what will cause. lie will be exonerated
by the death of the defendant, or his removal from this State under
process of law as a fugitive, before the rejburn-day of the summons
served upon the bail in the action to enforce his liability ; or by the
imprisonment of the defendant in the penitentiary ; or his legal dis-
charge from the obligations to render himself amenable to the process
of the court; or by his surrender to the sheriff* of the county in which
appear to have been executed in the ity of the bail. Allcorn v. Tuggle, 3
presence of the sheriff or other officer Met. 537.
authorized to take bail. Jones v. Bunn, (2) The liability of the bail, when fixed
2 Met. 490. But the failure to return ^y this section, shall be to pay the
bond to clerk's office will not defeat or amount of the judgment and costs, with-
impair its validity. lb. out regard to the solvency or insolvency
(4) A bond stipulating that the defend- of the principal. Abbott v. Daniel, 3
ant *' will render himself amenable to the Met. 340.
couH thereupon," the words ** process of " (3) t^ fl^ the liability of the bail, it is
being omitted, is valid. Abbott v. Dan- indispensable that there should be a valid
iel, 3 Met. 340. execution against the body of the defend-
§171. (1) Bail— liability off, how fixed, ant; that it should be placed in the
The law requires that the execution shall hands of the officer within the time pre-
be placed in the hands of the officer with- scribed, and be returned not found. An
intwenty days after it might have issued, execution commanding the sheriff to
but does not require that the execution take the body of the defendant " to sat-
shall be returned within twenty days isfy and pay the Commonwealth of Ken-
after judgment, nor within twenty days tucky the sum of $125 " is insufficient to
after it is issued, in order to fix the liabil- fix the liability of the bail. It should be
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118 MOTION TO VACATE AN ORDER OF ARREST. [tITLE VIH
he was arrested in execution thereof, on or before the return-day of
the summons in the action against the bail, or within such further
time as the court, in which the action is pending, may allow. If the
defendant be confined in any jail of this State, the bail will be exon-
erated by delivering to the jailer thereof, at any time before the
return-day of the summons in the action against the bail, a certified
copy of the order of arrest and of the bail bond, with a written order
thereupon to detain the defendant in custody, until discharged by
law from the action in which the bond was given. The jailer shall
give a written acknowledgment of the receipt of the order, which
shall be filed with the original bond.
§ 174 [SOI] Officer — ^when liable as bail. If, after being arrested, the de-
fendant, without fault on the part of the sheriff", be rescued, or escape,
or bail be not taken or be adjudged insufficient, or a deposit be not
made, the sheriff* shall be liable as bail, unless he shall have committed
the defendant to jail, and obtained a written acknowledgment thereof
from the jailer; in which case, the jailer shall be so liable. Either
officer may discharge himself from such liability by putting in Suffi-
cient bail at any time before judgment.
§ 175 [SOS] Officer— liability of as ball hew fixed. The liability of the
officer, as bail, shall be fixed in the manner provided in section one
hundred and seventy-one, and can be enforced only in a separate
action against him, or against him and his sureties in his official
bond, as in other cases of delinquency.
§176 [SOS] Bail — liability of to officer. Bail, judged insufficient, shall
be liable to the officer for the damages he may sustain by reason of
such insufficiency.
ARTICLE 4.
MOTION TO VACATE AN ORDER OF ARREST.
§ 177. Application for reduction of bail or vacation of order.
§ 178. Motion supported or opposed by affidavits.
§ 179. Scire facias against bail abolished.
§ 177 [S04] Application for reduction of bail or vacation of order. A defend-
ant, against whom an order of arrest has been obtained, may, at any
to satisfy and pay the plaintiff in the against the principal was returned **not
judgment. Abbott v. Daniel, 3 Met. found" before the return day thereof
340. does not prejudice the bail. Jones v.
(4) That execution upon the judgment Bunn, 2 Met. 490.
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TITLE Vm] CLAIM AND DBLIVBRT OP PERSONAL PROPERTY. 119
time before judgment in the action, and before a decision of amotion
on account of the insuflBciency of the bail, apply to the court, or, in
vacation and before executing a bail bond, to the judge thereof, or to
any circuit judge, or to the presiding judge of the county court, to
vacate the order of arrest, or to reduce the amount of bail. Reason-
able notice of the application shall be given to the plaintiflF. If sat-
isfied that the bail ought not to have been required, or that the sum
for which it was demanded is too large, fhe court, or judge, may vacate
the order of arrest, or reduce the amount of bail. The decision of
the motion shall be final in the action, but shall not affect the rights
of the parties in any other action. Upon the vacation of the order
of arrest, the defendant shall be discharged, or the bail bond, if any
be given, shall be canceled. {Notice may be served on attorney, sec. 631.)
§ 178 [to6] Motiofl sypported or opposed by affidavits. If the motion be
supported by affidavits or other evidence out of the record, the plaint-
iff may oppose it by affidavits or other evidence, in addition to that
on which the order of arrest was obtained. {Person on whose affida-
vit onler issued may be examined, sec, 54S.)
§ 17f [soe] Scire facias against bail abolished. The writ of scire facias
against bail is abolished.
CHAPTER II.
CLAIM AND DELIVERY OF PERSONAL PROPERTY.
g 180. Plaintiff may claim immediate delivery.
§ 181. Order of delivery — clerk to issue — affidavit for.
§ 182. Value of each article to be stated.
§ 183. Requisites of order — when returnable.
§ 184. Bond to be executed — form of — action on.
§ 185. Bond in action against officer — provisions of.
§ 186. Order — how executed.
§ 187. Disposition of property by officer.
§ 188. Defendant may retain property by executing bond.
§ 189. Appraisement of property by officer.
§ 190. Allowance to officer for keeping property.
§ 191. Proceedings when property claimed by stranger.
§ 192. Order may be issued to any county.
§ 193. Defendant required to discover property.
§ 180 [«oTj Plaiiitifff may claim immediate delivery. The plaintiff in an
action to recover the possession of specific personal property may, at
the commencement of the action, or at any time before judgment,
claim the immediate delivery thereof, as is herein provided. {Jury
to assess value, sec. SSO;form of judgment, sec. 388.)
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120
CLAIM AND DELIVERY OP PERSONAL PROPERTY. [TITLE VIII
§ 181 [S08J Order of delivery — clerk to issne — ^affidavit for. An order for
the delivery of property to the plaintiff shall be made by the clerk,
when an affidavit of the plaintiff is filed in his office, showing —
1. A particular description of the property claimed.
2. Its actual value and the damages which the affiant believes
the plaintiff ought to recover for the detention thereof.
3. That the plaintiff is the owner of the property, or has a special
ownership or interest therein — stating the facts in relation thereto
— and that he is entitled to the immediate possession of the
property.
§181. (1) Action nay be maiotaioed
against person who had the possession of
property, although he may not have the
possession when suit is brought. Easley
V. Easley, 18 B. M. 86.
(2) Deoiand is oot necessary to maintain
action. Easley v. Easley, 18 B. M. 86.
(3) Destructioo of property wrongfully
. possessed by a defendant in detinue or a
plaintiff in replevin pending the action
is the loss of the wrongful possessor.
Carrel v. Early, 4 Bibb 271 ; Gentry v.
Barnett, 6 Mon. 115; Scott v. Hughes, 9
B. M. 106.
(4) Praadaleot parchase of goods — vendor
may elect to treat contract as a nullity,
and bring an action for the recovery of
the property. Dtetz v. Sutcliffe, 80 Ky.
650.
(5) Identity of property sought to be re-
covered is question of fact for jury, not
court, to determine. Sawyer v. Middles-
borough, 13 R. 550.
(6) Joint owners must all join in an
action for the recovery of property. Bush
V. Groom, 9 Bush 675.
(7) Jadfuient — form of. Where the
plaintiff was in possession of a stray
horse, which he had never posted, and
which he had bailed to defendant, the
plaintiff was entitled, in an action for
the recovery of the horse, to a judgment
for the horse, if to be had ; if not, for its
value. Borron v. Landes, 1 Duv. 299.
(8) Judgment should be the alternative
for the return of the property, or its
value in case a return can not be had,
and damages for the taking and with-
holding of the property. Rogers v. Brad-
ford, 8 Bush 163 ; Reid v. King, 89 Ky.
(9) The plaintiff having obtained pos-
session of the property, upon the trial
the jury returned a verdict for the de-
fendant. Thereupon the court rendered
judgment for a return of the property or
for ninety dollars, being the value of the
property proved upon trial. The judg-
ment was held eVroneous, as the jury
should have fixed in their verdict the
value of the property, sec. 330. Young
V. Parsons, 2 Met. 499 ; 2 Bush 11-7.
(10) Owner of property which has been
stolen from him may maintain action for
its recovery against purchaser from
thief. Basset v. Green, 2 Duv. 560. .
(11) Plaintiff can not dismiss hto action.
The plaintiff can not, after having ob-
^' tained possession of the property by the
execution of the required bond, dismiss
his action, and thereby prevent a judg-
ment ; the defendant is entitled to a trial,
and if proper, to a judgment for the
return of the property and damages for
its detention. Rogers v. Bradford, 8
Bush 163.
(12) Pleading. The defendant from
whom a horse had been taken filed an
answer claiming to be the owner of the
horse, and praying to he dismissed vnth a
judgment for his costs. On the trial the
jury found for ' defendant, fixing the
value of the horse at one hundred and
twenty-five dollars, and the damages at
thirty-five dollars, and judgment was
rendered in accordance with the verdict.
Held that the answer was sufficient, and
that defendant was entitled und^r it to
the judgment rendered. Bates v. Buch-
anan, 2 Bush 117.
(13) Right to maintain action. The abso-
lute property and right to immediate
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TITLE Vni] OLAIM AND DELIVERY OP PERSONAL PROPERTY. 121
4. That the property is wrongfully detained by the defendant.
5. That it has not been taken for a tax or fine against the plaintiff,
or under any order or judgment of a court against him; nor seized
under an execution, distress-warrant, or attachment against his
property ; or, if so seized, that it is, by statute, exempt from such
seizure.
6. That the plaintiff's cause of action has accrued within one
year. If the action be brought to recover property taken under
an execution or distress-warrant or attachment, the affidavit must
state the fact of the taking and the nature of the process under
which it was done. {Form of affidaoity 'page 631 ; how, and before
iDhoniy made, sees. 651, 549; when by agent or attorney , sec. 550; when
may issue on holiday, sec. 665 ; trial of, and judgment in action, sees.
330, 388.)
§ 182 [st«] Value of each article to be stated. I( the delivery of several
articles of property be claimed, the affidavit must state the value
of each.
§ 183 [tit] Requisites of order — when retanial>le. The order for the deliv-
ery of the property to the plaintiff shall be addressed and delivered,
with a copy thereof, to the 'sheriff. It shall state the names of the
parties to the action, and the court in which it is brought or pending,
and direct the sheriff to take the property — describing it, and stating
its value, as in the affidavit of the plaintiff — and deliver it to him,
and to make return of the order on a day to be named therein. The
order shall be made returnable as an order of arrest is directed to be
returned. {Form of order, page 631; order may be addressed and
delivered to other officer or person, sees. 667, 668 ; must indorse time of
reception, sec. 674 > ichen returnable, sec. 156.)
§ 184 [sii] Bond to be executed by plaintiff — ^forin of — action on. The order
shall not be complied with by the sheriff, until there has been
executed in his presence, by one or more sufficient sureties of the
plaintiff, a bond to the defendant, to the effect that the plaintiff shall
duly prosecute the action, and that he shall perform the judgment of
the court therein, by returning the property, if a return thereof shall
be adjudged, and by paying such sums of money as may be adjudged
possession wiU enable one to maintain livery for a horse, and upon the execu-
action although he has never had actual tion of the bond required by this section
possession. Tunstall v. McClelland, 1 the horse was delivered to him. On* the
Bibb 186; McDowell v. Hall, 2 Bibb trial of the action, C, who claimed to be
610; 5 Litt. 254. interested, was made defendant, and a
§ ifti. Bond— actioo wl In an action judgment rendered in his favor against
against B, A obtained an order of de- A for two hundred and fifty dollars, the
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122 CLAIM AND DELIVERY OF PERSONAL PROPERTY, [TITLE VIII
against him in the action, not exceeding double the value of the
property and the costs of the action. Any person establishing a claim
to the property, pursuant to the provisions of section twenty-nine,
shall be entitled to the benefit of the provisions of said bond. {Form
of bond,, page 631. If defective^ new one may be executed^ 682. Sureties
may be sworn ; qualifications of sees. 683y 68^,)
§ 1^ [lit: Bood in actios afainst officer — provisioiis of. If the action be
brought against a sheriff, or other officer, to recover the possession
of property taken by him under an attachment or execution against
a person other than the plaintiff, or under a distress warrant, the
bond provided for in section one hundred and eighty -four shall be to
the effect that the plaintiff shall duly prosecute the action, and that
he shall perform the judgment of the court therein, by returning the
property, if a return thereof shall be adjudged, and by paying to the
defendant, or to the plaintiff in the attachment or execution, or party
who sued out the distress warrant, as may be directed by the court,
such sums of money as may be adjudged against the plaintiff in the
action, not exceeding double the value of the property and the costs
of the action. {Form of bond, page 63^. Tenant may bring action for
delivery against plaintiff in distress warranty sec, 33.)
§ 186 [SIS] Order — how executed. The sheriff shall execute the order
by taking the property therein mentioned, if it be found in the pos-
session of the defendant or of his agent, or of any other person who
obtained possession thereof from the defendant, directly or indirectly,
after the order was placed in the sheriff's hands. He shall also
deliver a copy of the order to the defendant, or to the person from
whose possessions the property is taken ; or, if neither can be found,
he shall leave it at the usual place of abode of either, with some per-
son of the age of sixteen years or over. ( When may be executed on
holiday^ sec. 665. May break and enter building to execute^ sec. 675)
§ 187 [sii] Disposition of property by officer. If the affidavit of the plaint-
iff state that the property was taken under an attachment, execution
or distress warrant, the sheriff shall deliver it to the plaintiff. In
every other case he shall retain the property for two days, unless the
bond mentioned in the succeeding section be sooner executed.
§ 188 [210] Defendant may retain property by execntinf bond. Within two
days after the taking of the property by the sheriff, the defendant,
value of the horse. Held that B and C, A. McQlasaon v. Bradford, 7 Bush 250 ;
for the benefit of C, could maintain an section 874 of the Code of 1854 mentioned
action on the bond executed hy A to B, in this opinion is not in this Code,
and recover against the surety in the §188. (1) Bondof defeadaat^OaMUtyoa.
bond the amount of his judgment against Plaintiff having recovered judgment for
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TITLE Vni] CLAIM AND DELIVBRY OF PERSONAL PROPERTY. 12S
or any one for him, may, if the property was not taken under an
attachment, execution or distress warrant, cause a bond to be exe-
cuted to the plaintiff, in the presence of the sheriff, by one or more
sufficient sureties, in double the value of the property, to the effect
that the defendant shall perform the judgment of the court in the
action ; whereupon, the sheriff shall restore the property to the de«
fendant, or to the person in whose possession it was found. If such
bond be not executed within the time above limited, the sheriff shall
deliver the property to the plaintiff. He shall return the bonds ^\nth
the order. {Form of bondj page 63S; see references under sec, 18^.)
§ I8f i«i»] Appraisement of property by officer. Before taking any bond,
upon the suggestion of the plaintiff that the value of the property
is not truly stated in the order for its delivery, or upon such sugges-
tion of the defendant, and upon his producing the property to the
sheriff, he shall select three disinterested housekeepers to appraise
the same, under oath to be administered by him — whose appraise-
ment, indorsed upon the order, shall be regarded as the value of the
property, in taking the bond. (Form of appraisement, page 632)
§ 190 [SIT] AUowuce to officer for l^eepinf property. The sheriff shall
safely keep the property, and shall be allowed by the court the neces-
sary expenses of doing so, to be paid by the plaintiff and taxed in
the costs.
§ iff 1118] Proceedinp whea property claimed by straofer. If another per-
son than the defendant or his agent claim the property taken by the
sheriff, and deliver to the sheriff his affidavit that he is entitled to
the possession thereof, the sheriff shall not be bound to keep it, or
deliver it to the plaintiff, unless he shall, within two days after the
delivery to him, or to his agent or attorney, by the sheriff, of a copy
the property in controversy, the defend- Upon the trial, judgment was given for
ant and his sureties in the bond executed the debt and foreclosure of the mort-
under this section are liable for the costs gage ; the defendant surrendered the
of the action as well as the value of the property for which he had given bond,
property. Galloway v. Bethume, 6 Bush and it did not sell for enough to pay the
113. judgment. In a suit on the bond to re-
(2) In such case the surety can not be cover the balance of the judgment it was
proceeded against by motion, the rem- held that the obligors were not liable, as
edy of the plaintiff is by action on the the bond was only to satisfy such judg-
bond. Gay v. Morgan, 4 Bush 606. ment as might have been rendered on
(3) Bond— how coostmed. In an action the claim for the delivery of the prop-
on a note, and to enforce a mortgage erty. McKee v. Pope, 18 B. M. 548.
given to secure it, an order of delivery §191. Claimant— notice by to slieriff.
was obtained for the possession of the When a sheriff seizes the property of
mortgaged property. The defendant ex- another than the defendant, if such
ecuted the bond required by this section. owner is in possession, he is not required
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124
CLAIM AND DELIVERY OF PERSONAL PROPERTY. [TITLE Vin
of the affidavit, indemnify the sheriff against the claim, by a bond
executed by one or more sufficient sureties, in double the value of the
property. No claim to such property by any other person than the
defendant or his agent shall be valid against the sheriff, unless so
made. He shall return the affidavit of the claimant, with his pro-
ceedings thereon, to the clerk's office. {Form of bondj page 63S; see
references under sec. I84.)
§ 192 [»•] Order may be issued to any connty. An order may, at any
time before judgment, be directed to any county for the delivery of
the property claimed. 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.
§ lf3 [MO] Defendant required to discover property. If it appear from the
affidavit of the plaintiff, or the return of the order of delivery, 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 disobedience of its orders in this respect as
in cases of contempt. (Plaintiff may obtain attachment^ sec. 194,)
to give any notice to the sheriff as to his
possession, as provided in this section, in
order to secure a right of action against
the sheriff. It is only when the claimant
is not in possession that notice is re-
quired. Mann v. Martin, 14 Bush 763.
If the sheriff takes property from one
•owning it, and in possession, he does it
at his peril. The question of the owner-
ship of the property in controversy
should be submitted under proper in-
structions to a jury. lb.
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TITLE Vm]
GROUNDS OF ATTACHMENT.
126
CHAPTER m.
ATTACHMENT.
Akticlb 1. General attachments, 194.
2. Attachments and order of arrest in certain actions, 237.
3. Attachments against specific property, 249.
4. Discharge and reinstatement of attachments, 259.
ARTICLE 1.
general attachments.
Subdivision 1. Grounds of attachment, 194.
2. Attachment— HOW obtained, 196.
3. Execution and return of, 202.
4. Disposition of attached property, 218.
5. Proceedings upon attachments, 221.
SUBDIVISION 1.
grounds of attachment.
g 194. In action for money or property.
§ 195. Rent — attachment for.
§ |f4 [sti] In action for moaey or property. The plaintiff may, at or
after the commencement of an action, have an attachment against
the property of the defendant, including garnishees as is provided
in section two hundred and twenty-seven, as a security for the satis-
faction of such judgment as may be recovered —
First : In an action for the recovery of money against —
1. A defendant, who is a foreign corporation or a non-resident
of the State ; or.
1 194. (1) Attachmeiit before action com-
neacei void. Attachment can not issue
until action commenced. Attachment
issued before summons issued, or warn-
ing order made, is void. Hall v. Grogan,
78 Ky. 11 ; Kellar v. Stanley, 86 Ky. 240.
When action commenced, see sec. 39.
(2) CoacealaMBt. The concealment
which will authorize and sustain an at-
tachment under subsection 5 involves
the intention of the debtor to delay his
creditors, and may be accomplished by
secreting himself in his house, or upon
his premises, or by departing secretly
from his place of abode to a more secure
spot either in or out of the county of his
residence. Dunn v. Salter, 1 Duv. 342 ;
Lewis V. Wright, 3 Bush 811.
(3) Coart in which to be obtained. At-
tachment is incidental to the action in
which it is sought, and can only be ob-
tained in the court in which the action is
pending. Moore v. Sheppard, 1 Met. 97.
(4) Express and implied contracts. Pro-
visions of Code authorizing attachments
make no distinction between express and
implied contracts, and an attachment
may be issued and sustained upon an im-
plied contract. Garriott v. Jaflfray, 10
Bush 413.
(5) Ponr months' absence. Where the
debtor leaves his home intending to go
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126
GROUNDS OF ATTACHMENT.
[title VUI
2. Who has been absent herefrom four months; or,
3. Has departed herefrom with intent to defraud his creditors; or,
4. Has left the county of his residence to avoid the service of a
summons; or,
5. So conceals himself that a summons can not be served upon
him ; or,
6. Is about to remove, or has removed, his property, or a mate-
rial part thereof, out of this State, not leaving enough therein to
satisfy the plaintiff's claim, or the claims of said defendant's cred-
itors; or,
7. Has sold, conveyed, or otherwise disposed of, his property,
or suffered or permitted it to be sold, with the fraudulent intent
to cheat, hinder or delay his creditors ; or.
out of the State, and oonsummates this
purpose, and is absent four months,
his absence from his residence four
months authorizes an attachment,
though unexpected casualty may have
delayed him in the State a few days
after leaving his residence. Spalding v.
Simms, 4 Met. 285.
(6) PnuHlaJeiit coiveyaace. It is neces-
sary to show a fraudulent intent before
the attachment is sued out ; fraud orig-
inating afterward is not sufficient. War-
ner V. Everett, 7 B. M. 363. The state-
ment in the affidavit that the defendant
'* is about to waste or dispose of his
property, with the fraudulent intent to
cheat, hinder and delay his creditors in
the collection of their debts," is suf-
ficient. Lane v. Robinson, 18 B. M. 623 ;
and see Clark v. Smith, 7 B. M. 275. As
to subjecting property fraudulently con-
veyed, see Martz v. Pfeifer, 80 Ky. 600.
(7) Where ground for attachment is
that debtor has made a fraudulent con-
veyance of his property, the creditor has
a right to an attachment although there
may be one or more solvent sureties on
note. Perkins v. Scott, 7 R. 589.
(8) htsotreacy. This subdivision au-
thorizes an attachment against all the
property of the debtor not exempt from
execution, whenever he is without a suf-
ficiency subject to execution to satisfy
debt sued on, although there may be no
attempt on his part to defeat the collec-
tion of the debt. The evidence to sus-
tain the attachment must clearly show
that the debtor did not have sufficient
property subject to execution to satisfy
the debt sued on. Burdett v. Phillips,
78 Ky. 246.
(9) To sustain the attachment, it must
appear first, that the defendant has no
property in this State subject to execu-
tion, or not enough thereof to satisfy the
debt sued on ; and second, that the col-
lection of the demand will be endangered
by delay in obtaining judgment, or a re-
turn of no property found. One of these
conditions is not necessarily the concom-
itant of the other, although it may be so.
Francis v. Burnett, 84 Ky. 24.
(10) It is not sufficient that debtor has
not property sufficient to satisfy demand,
it must also be alleged and proved that
the collection of the demand will be en-
dangered by delay, and while the former
fact ordinarily raises a presumption of
the existence of the latter, that presump-
tion may be overcome. Dunn v* McAlpin,
90 Ky. 78 ; First National Bank v. Kiefer
Milling Co., 95Ky. 97.
(11) Where there are two or more
obligors within jurisdiction of this State,
an attachment can not be obtained
against any of them under this subdivi-
sion without alleging as to all of them
that they have no property in this State
subject to execution and the ooUeolion of
demand will be endangered. 90 Ky. 78.
(12) If there is much doubt as to the
value of defendant's property, the ooort
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TITLE VIIl]
GROUNDS OP ATTACHMENT.
127
8. Is about to sell, convey, or otherwise dispose of, his prop-
erty, with such intent. But an attachment shall not be granted
on the ground that the defendant is a foreign corporation, or a
non-resident of this State, for any claim other than a debt or
demand arising upon a contract, express or implied, or a judg-
ment or award.
Second: In an action for the recovery of money due upon a
contract, judgment, or award, if the defendant have no property
in this State subject to execution, or not enough thereof to satisfy
the plaintiff's demand, and the collection of the demand will be
endangered by delay in obtaining judgment or a return of no
property found.
Third: In an action to recover the possession of personal
property which has been ordered to be delivered to the plaintiff,
and which property, or part whereof, has been disposed of, con-
cealed, or removed, so that the order for its delivery can not be
executed by the sheriff.
uriU be reluctant to sustain attachment,
and its value is to be determined by tlie
opinions of witnesses. Haynes v. Wiley,
12 R. 209.
(13) In Francis v. Burnett, 84 Ky. 24,
it was doubted if a creditor could obtain
an attachment under this subdivision
against the property of the debtor, when
several were bound for the debt and
combined owned more than enough prop-
erty to pay it; and see note 11. It is also
qnestionable whether a plaintiff has a
right to purchase debts against a defend-
ant, not in good faith, but for the sole
purpose of obtaining an attachment on
the ground that he does not own sufficient
property to satisfy the demand. 84 Ky. 24.
a4) Uw to be strictly conplled with. Pro-
ceedings by attachment are summary
and extraordinary, and, to be good, must
conform to all the requirements of the
law. Pool V. Webster, 3 Met. 278.
(15) LetTtflg couty to avoM service.
"Where a debtor leaves the county of his
residence to avoid arrest in a criminal
proceeding, thereby preventing service of
summons upon him in a civil action for
the same wrong, subsection 4 of this
section applies. Bank of Commerce v.
Payne, 86 Ky. 446.
(16) NdO"fesldettcy. Attachment may be
Issued on the ground of non-residency,
though defendant be casually in the
State at the time. Jackson v. Perry, 13
B. M. 230 ; and see Dudley v. Porter, 1 B.
M. 404 ; Dudley v. Donaldson, 2 B. M. 151.
(17) A non-resident in an action in this
State may sue out an attachment on the
ground that defendant is a non-resident.
Gray v. Briscoe, 6 Bush 687.
(18) The plaintiff may have an attach-
ment against the property of the defend-
ant on the ground that he is a non-resi-
dent ; but this fact alone is not sufficient
to authorize a judgment setting aside
a conveyance of his property because
fraudulent in the meaning of section 1907
Kentucky Statutes. Little v. Ragan, 83
Ky. 321.
(19) Section 58, subsection 6, provides
that the affidavit mentioned in that sec-
tion shall be sufficient evidence of the
facts therein stated to support the warn-
ing order and action, unless controverted.
This provision was not in CJode of 1854,
and it was held that non-residency must
be proved, unless the affidavit mentioned
in section 409 was made. Buclcner v.
Bush, 1 Duv. 394 ; Jackson v. McElroy,
2 Bush, 132. See also sec. 126-3.
(2(Q Pleadiag— proof. If sufficient
grounds are not alleged, proof upon the
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128
ATTACHMENT — HOW OBTAINED.
[title VUI
§ Its. Attachineiito for rent The provisions of chapter sixty-six, article
two, General Statutes [now chapter seventy-five, article two, of the
Kentucky Statutes], concerning attachments for rent, are adopted as
part of this Code, subject to any modifications herein contained.
SUBDIVISION 2.
ATTACHMENT — HOW OBTAINED.
§ 196. Affidavit for attachment — requisites of.
§ 197. Officer's return — authorizes when.
§ 198. Bond for— form of.
§ 199. Order of attachment — requisites of — when returnable.
^ 200. Kentucky Statutes— certain sections applicable.
§ 201. Attachment may issue to any county— costs.
§ 196 [w] Affidavit for attacliffleiit — reqaisltes of. An order of attach-
ment shall be made by the clerk of the court in which the action is
brought or pending, in any case mentioned in section one hundred
and ninety-four, subsections one and two, if an affidavit of the
plaintiff be filed in his office, showing —
matter will not be considered. Dunn v.
McAlpin. 90 Ky. 78.
(21) Reoioval of property. A charge that
defendant is removing from the State,
unaccompanied with the statement that
he is about to remove his property, or
a material part thereof, out of the State,
not leaving enough to satisfy the de-
mand sued for, is defective. Clarke v.
Seaton, 18 B. M. 236. See Montgomery v.
TiUey, 1 B. M. 155 ; Nutter v. Ck>nnet, 3
B. M. 199 ; Jenning v. Shropshire, 9 B. M.
431, construing acts of 1828, 1838, simi-
lar to this subsection.
§195. Attachmeiit for root See Ky. Stat.,
sec. 2302 and notes thereto.
§ 196. (1) Affidavit— wbeo petitioi will
amwer. When the petition states all the
facts necessary to authorize the issuing
of the attachment and is sworn to, a sep-
arate affidavit is not necessary. Scott v.
Donehy, 17 B. M. 321; Franklin Bank v.
Bank of Wheeling, 1 Met. 156; Worthing-
ton v. Carey, 1 Met. 470; Burnam v. Ro-
mans, 2 Bush 191; and petition may be
verified by attorney. Clark v. Miller, 88
Ky. 108.
(2) Affidavit —reqatoitef of. Statement
that affiant **is informed and believes/'
and verification that he ** believes " state-
ments are true, is not sufficient. Williams
V. Martin, 1 Met. 42. The charge should
be distinctly and unequivocally made,
and when so made a verification that affi-
ant believes the statements to be true is
sufficient. Ryan v. Bean, 2 Met. 137;
Burnam v. Romans, 2 Bush 191.
(3) Affidavit of agent that he believes
facts stated in petition are true is suffi-
cient (Franklin Bank v. Bank of Wheel-
ing, 1 Met. 156); but he must state that
the plaintiff is then absent from the
county (Pool v. Webster, 3 Met. 278),
and that he is agent for plaintiff. An-
derson V. Sutton, 2 Duv. 480.
(4) Affidavit must be made before at-
tachment issues; attachment issued with-
out affidavit is void (Bishop v. McQuery,
13 Bush 417), and must state nature of
claim and amount plaintiff ought to
recover (Scott v. Donehy, 17 B. M. 321;
Allen V. Brown, 4 Met. 342; 1 Met. 47(9;
and failure to state that claim is Just is
a fatal defect. Taylor v. Smith, 17 B. M.
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ATTACHMENT — HOW OBTAINED.
129
1. The nature of the plaintiff's claim.
2. That it is just.
3. The sum which the affiant believes the plaintiff ought to
recover; and
4. The existence of any of the grounds for an attachment men-
tioned in subsections one and two of section one hundred and
ninety-four; or, in the case mentioned in subsection three of sec-
tion one hundred and ninety-four, if it be shown by such affidavit,
or by the return of the sheriff upon the order for the delivery of
the property claimed, that the facts mentioned in that subdivision
exist. {Form of affidavit ^ page 633 ; how and before whom made^ sees.
651 J 649; when by agent or attorney y sec. 650; may be amendedySec.
968; when order may issue on holiday ^ sec. 665.)
§ 197 [««s] Officer's return — anthorixes when. A return by the sheriff up-
on a summons against a defendant, that he has left the county to
avoid the service of the summons, or has concealed himself therein for
that purpose, is equivalent to the statement of the fact in the plaint-
iff's affidavit.
§ lf6 [ti4i Bond to be execoted before issual — form of. The order of
attachment shall not be issued by the clerk, until a bond has been
536 ; Bailey v. Beadles, 7 Bush 383 ; 2
Duv. 480; 4 Met. 342.
(5) Statement of the grounds of attach-
ment in the alternative may be made.
Wood V. Wells, 2 Bush 107; Hardy v.
Trabue, 4 Bush 644.
(6) The omission of the word "the"
after the word ** says" in the following
verification did not render affidavit de-
fective. **He says statements in the
foregoing petition are true.*' 88 Ky. 108.
(7) AmcBtaeflt of affidavit It was held
under the Code of 1854 that a defective
affidavit, or petition on which an attach-
ment was obtained, might be amended.
Allen V. Brown, 4 Met. 342; Bailey v.
Beadles, 7 Bush 383; sec.268-2of this Code
provides that by an amended affidavit
defect in former affidavit may be cured,
or a new ground of attachment stated.
(8) When a defective affidavit is
amended, it is good as against other
attaching creditors only from the filing
of the amendment. Bell v. Hall, 2 Duv.
288 ; Peters v. Conway, 4 Bush, 565 ; sec.
(9) See Bamberger v. Moayon, 91 Ky.
(9)
517, as to distinction between effect of
amendment to petition and amendment
to affidavit.
(10) AttacluMflt—wbeo |«dge omst order.
In action to enforce lien on, or for sale,
recovery or partition of personal property
(sec. 249), or to vacate fraudulent pur-
chase (sec. 250), attachment can not be
issued by clerk without order of a judge.
(11) Descriptiofl of property to be at-
tached in the petition will not create a
lien if the attachment is invalid. Meyer
V. Ruff, 13 R. 254.
(12) Jariadlctioo— defective affidavit The
jurisdiction of the court in attachment
cases depends upon tlic actual or con-
structive service of process upon the de-
fendant and not upon the plaintiff*s affi-
davit nor upon the clerk's order, and a
defective affidavit does not render the
judgment void. Paul v. Smith, 82 Ky.
451; Allen v. Brown, 4 Met. 342.
§ 198. (1) Bond to l»e executed iiefore is-
sual of. Bond must be executed before
the clerk before he issues the attach-
ment ; attachment issuing before bond
executed will be discharged. Anderson
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130
ATTACHMBNT — HOW OBTAINED.
[title VIII
executed in his office by one or more sufficient sureties of the plaintiff
to the effect that the plaintiff shall pay to the defendant all damages
which he may sustain by reason of the attachment, if the order be
wrongfully obtained, not exceeding double the amount of the plaint-
ift^'s claim. {Form of bondy page 6SS; if defective^ nexo one may be
executed^ sec. 682 ; sureties may be sworn, qualifications of sees. 683,
684,; additional security may be required^ sec. ^36.)
V. Sutton, 2 Duv. 480 ; Home v. Mitchell,
7 Bush 131. Bond not executed before
the clerk nor in manner prescribed is not
a defective bond that can be remedied as
provided in sec. 683 ; 7 Bush 131.
(2) Bond executed to all the defend-
ants Jointly, or to defendants as a firm,
is good as any of the defendants damaged
may maintain an action on it. Yoorheis
V. Eiting, 15 R. 161.
(3) Damages recoverable 00 bond. In
action on bond plaintiff can only recover
damages for the injury sustained by being
deprived of the use of his property, or its
loss or deterioration, and the costs and
expense incurred in defense of attach-
ment. Petti t V. Mercer, 8 B. M. 51 ;
Kaye v. Kean, 18 B. M. 839 ; Mitchell v.
Mattingly, 1 Met. 237.
(4) The only damages that can be re-
covered on the bond are such as result
from the order of attachment, and not the
damages incurred bj^ reason of the action
independent of the attachment. Trap-
nan V. McAffee, 3 Met. 34; Shultz v.
Morrison, 3 Met. 99; Burgen v. Sharer,
14 B. M. 497.
(5) If the whole costs and expense are
Incurred in defending the action, noth-
ing can be recovered on bond, but if in-
curred in defending attachment alone, it
can be ; or if incurred partly in defend-
ing attachment, and partly in defense of
the action, it is recoverable so far as ap-
plicable to the attachment. Johnson v.
Farmers Bank, 4 Bush 283.
(6) Attorney's fees can be recovered
only where plaintiff has paid or con-
tracted to pay such fees and upon proof
that they are reasonable, and the re-
covery is limited to the amount paid or
agreed to be paid. Shultz v. Morrison,
3 Met. 99 ; 3 Met. 34 ; 8 B. M. 198.
(7) When by an attachment a party is
prevented from performing a contract,
and material prepared to enable him to
do so is thus depreciated in value to him,
he can recover on the bond the damages
caused by the depreciation. Carpenter
V. Stevenson, 6 Bush 259.
(8) To maintain an action on the bond,
it is necessary that the attachment
should have been discharged ; no action
will lie until attachment is discharged.
It is not necessary to allege either malice
or want of probable cause, but it should
be alleged that the attachment was
wrongfully obtained, and the judgment
discharging the attachment is conclusive
evidence that it was wrongfully obtained.
Kaye v. Kean, 18 B. M. 839; Nolle v.
Thompson, 3 Met. 121 ; see Cooper v.
Hill, 3 Bush 219.
(9) Right to sue on an attachment bond
is transferred to assignee by general as-
signment. Francis v. Burnett, 84 Ky.
24 ; and see Cleveland Coal Co. v. Sloan,
90 Ky. 308.
(10) Maliciously snlog out attachmeot—
action lor. Recovery of damages for ma-
liciously suing out an attachment is a
bar to an action for damages on the
bond. In an action for maliciously su-
ing out an attachment the plaintiff can
recover damages for all his injuries of
every character growing out of the
wrongful issuing of the attachment.
Hall V. Foreman, 82 Ky. 505. But the
action will not lie until the attachment
has been discharged. 3 Met. 121 ; 3 Met.
193.
(11) To maintain action for mali-
ciously suing out an attachment, plaintiff
must allege and prove want of probable
cause and malice, and may recover for
loss of credit, injury to business, im-
paired reputation, and costs and ex-
pense. Wood v. Weir, 5 B. M. 544;
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TITLE Vni]
ATTACHMENT — HOW OBTAINED.
131
§ 199 [Mftj Order of attachaieot — requisites — when retnmable. The order of
attachment shall be directed and delivered to the sheriff, with as
many copies thereof as the plaintiff may direct. It shall require him
to attach and safely keep the property of the defendant in his county
not exempt from execution, or so much thereof as will satisfy the
plaintiff's claim specified in his affidavit, which shall be stated in the
order, and the probable costs of the action, not exceeding thirty dol-
lars ; also, to summon the garnishees to answer in the action on the
return-day of the order, and to make due return thereof. The order
shall be made returnable as an order of arrest is directed to be re-
turned. {Form of orders page 633; officer must indorse time of recep-
tioUj sec. 67 Jf, ; may be directed to^ and executed by^ other officers^ or per-
soUy sees. 667 y 668 ; when returnable^ sec. 166)
§ 200. Keotycky Statates — certain sections applicalile. The provisions of
sections five, six, seven, eight of article thirteen, chapter thirty-eight,
General Statutes [now sections 1697 to 1701, inclusive, of the Kentucky
Statutes], are made applicable to attachments under this Code. {These
sections of statute relate to exemptions.)
Mitchell V. Mattingly, 1 Met. 237; Pettit
V. Mercer, 8 B. M. 51. See Fullenwider
V. McWniiams, 7 Bush 389 ; and Chelf v.
Penn, 2 Met. 463.
(12) Where an assignment for the
benefit of creditors is made after an at-
tachment has issued against the property
of the assignor, the right to maintain an
action for maliciously suing out the at-
tachment is in the assignor. Francis v.
Burnett, 84 Ky. 24.
(13) Where a firm make an assign-
ment after the issual of an attachment
they can not maintain an action against
creditor for injury to firm credit or bus-
iness; it passed to assignee. Cleveland
Coal Co. V. Sloan, 90 Ky. 308.
(14) Wnmffal selzare — actioi for. An
action may be maintained as provided in
sec. 7 Ky. Stat., for suing out an at-
tachment without good cause. In this
action plaintiff can only recover damages
for the loss sustained by being deprived
of the use of the property, or for injury
resulting to it from the wrongful seizure
and damages for the sale, if property sold,
and his costs in attachment suit. The
discharge of the attachment is con-
clusive that it issued without good
cause. Mitchell v. Mattingly, 1 Met.
237 ; and see notes to sec. 7 Ky. Stat.
§ m. (1) Officer wio cai execute. The
order can only be executed by the officer
to whom it is directed, and can not, like
a summons, be executed by any officer to
whom it might have been directed.
Menderson v. Specker, 79 Ky. 509. Sheriff
can execute attachment issued by a
justice of the peace. Turners v. Howard,
2 Duv. 112.
(2) Property exempt from attachmeot
Fees and allowances due by county to
jailer can not be attached in hands of
sheriff. Webb v. McCawley, 4 Bush 8 ;
nor can pension money, before reaching
pensioner. Eckert v. McKee, 9 Bush
355 ; Robion v. Walker, 82 Ky . 60 ; John-
son V. Elkins, 90 Ky. 163 ; nor can com-
pensation due by State to teachers of
common schools. Tracy v. Hornbuckle,
8 Bush 336 ; Allen v. Russell, 78 Ky. 105 ;
nor is an indebtedness upon negotiable
paper, before its maturity, subject to
attachment. Greer v. Powell, 1 Bush
489 ; as to salary of officers of towns and
cities, see Rodman v. Musselman, 12 Bush
354 ; it was held in Wilder v. Shea, 13
Bush 128, that a creditor of a railroad
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132 EXECUTION AND RETURN OP. [TITLE VIH
§ 261 [ssej Attadunent nay issne to aay covity — coats. Orders of attach-
ment may be issued to the sheriff of any county ; and several of them
may, at the option of the plaintiff, be issued at the same time or in
succession. But such only as have been executed in whole or in
part shall be taxed in the costs, unless otherwise directed by the
court.
SUBDIVISION 3.
EXECUTION AND RBTITRN OP.
§ 202. Precedence of attachments.
§ 208. Manner of executing.
§ 204. Duty of officer on whom executed — ^penalty.
§ 205. Garnishee — duties of — penalty.
8 206. Personalty to be first taken.
§ 207. Fund in court — attachment of.
§ 208. Joint property— execution of bond by plaintiff.
§ 209. Joint property of joint debtors subjected.
§ 210. Attachments from different courts— proceedings.
§ 211. Bond of indemnity— officer may require.
§ 212. Lien created by attachment.
g 213. Officer may pursue and attach in another county.
§ 214. Person in possession may execute bond and retain property.
§ 215. Appraisement of property retained.
§ 216. Defenses not allowed in action on bond.
§ 217. Return of officer — what it must show.
§ 202 [ssT] Precedence of attachments. Several orders of attachment
against a defendant shall have precedence according to the time of
company could not attach its earnings in back of a summons which runs in the
the hands of its officers, but see now Ky. name of the Commonwealth is valid,
Stat., sec. 814. although the words ** Commonwealth of
(3) Reissnal of order. The plaintiff Kentucky " do not appear on back of
withdrew from the sheriff an order of summons. Northern Bank v. Hunt, 93
attachment on which he had indorsed Ky. 67.
time of reception. A supplemental affi- (5) It is the attestation of the officer
davit was filed and the clerk reissued who issues that gives validity to the proc-
thesameorder, erasing therefrom the in- ess, and in a conflict between words in
dorsement. The order and levy made the bodj^ of the writ over official signa-
under it were held valid. Dean v. Gar- ture, and unattested indorsement on its
nett, 1 Duv. 408. back, the words in body must prevail.
(4) ReqaisHes of. Attachment which Peters v. Conway, 4 Bush 565.
does not run in the name of the '* Com- (6) As to stating amount of plaintiff's
monwealth of Kentucky " is void. Words claim in the order of attachment, see
and figures in the writ should be written Burnam v. Romans, 2 Bush 191.
in full. Yeager v. Groves, 78 Ky. 278 ; §212. (1) Precedence of attacluneflts—
but an order of attachment indorsed on doty of officer— presamptioii. The pre-
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TITLB Vlll]
EXECUTION AND RETURN OF.
138
their delivery to the sheriff, subject to the provisions of section two
hundred and seven.
§ 2M [sss] Maiiaer of execnthic. The order of attachment shall be
executed by the sheriff without delay in the following manner —
1. Upon real property, by leaving with the occupant thereof, or,
if there be no occupant, in a conspicuous place thereon, a copy of
the order.
2. CJpon personal property capable of manual delivery, by tak-
ing it into his custody and holding it subject to the order of the
court ; or, if it be held by another officer under process or under
a distress for taxes, by delivering to him a copy of the order, with
a notice specifying the property attached.
3. Upon other personal property, by delivering a copy of the
order, with a notice specifying the property attached, to the per-
son holding it; or, as to a debt or demand, to the person owing
it; or, as to stock in a corporation, or property held, or a debt or
demand owing by it, to the officer or agent upon whom a sum-
sumption will be indulged in that the
sheriff discharged his dutj' by levying
first the attachment that first came to
his hands, nothing being shown to the
contrary. Buckner v. Bush, 1 Duv.
394 ; Phelps v. Ratcliffe, 3 Bush 334.
(2) The provisions of the Code in re-
spect to the order in which attachments
shall be levied are directory, and the fail-
ure of the sheriff to comply literally
with them will not vitiate the lien re-
sulting to the attaching creditor in whose
behalf the levy has been made. The
sheriff may amend his return. Lane v.
Robinson, 18 B. M. 623 ; 3 Bush 334.
(3) If several attachments be delivered
to a sheriff at different hours on same
day and all are levied at same time they
should be satisfied according to order of
delivery. Sewell v. Savage, 1 B. M. 260.
(4) First levy gives prior lien as be-
tween several attaching creditors where
the writs are in the hands of differentof-
flcers. Kennon v. Picklin, 6 B. M. 415,
bat where attachments are delivered to
sheriff or his deputies it is his duty to
levy them in order received, and al-
though he may not observe this order, the
court In distributing fund wiU do so.
Kennon v. PMcklin, 6 B. M. 414 ; Clay v.
Scott, 7 B. M. 554.
(5) Where an attachment is in the
hands of one officer and an execution in
the hands of another officer, if the at-
tachment be first levied it will have
priority. Bourne v. Hocker, 11 B. M. 23.
§203. (1) Ackiowledfineot of attaclmieit
only creates lien from the time of the
acknowledgment of service by defend-
ant. Phelps V. Ratcliffe, 3 Bush 324.
(2) Ameodment of retim. Officer may
amend his return to conform to the facts.
Lane v. Robinson, 18 B. M. 623 ; New-
ton V. Prather, 1 Duv. 100 ; and if am-
biguous it may be explained by other
evidence. Chamberlain v. Brewer, 3
Bush 561.
(3) Descriptioi of property. The same
particularity is not required in describing
land levied on under attachment as under
an execution ; it is sufficient if the land
can be identified. White v. O'Bannon,
86 Ky. 93.
(4) Qamishees. Lien is created by an-
swer of garnishee, although service upon
him is not sufficient to create lien. City
Nat. Bank v. Gardner, 5 R. 689 ; Paducah
Lumber Co. v. Langstaff, 6 R. 445.
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134 EXECUTION AND RETURN OF. [TITLB Vm
mons may be served according to the provisions "of section fifty-one,
and by summoning the person or corporation to answer as a gar-
nishee in the action. The sheriff shall deliver copies to, and sum-
mon, such persons as garnishees as the plaintiff may direct.
[But no notice need be given in any case describing or specify-
ing the debt or demand attached, but only a notice that the person
or corporation to whom the order of attachment is delivered is
summoned to answer as a garnishee on or before the day and time
on which the case is set for trial.] ( Words in brackets added by
act 1886.) {Form of notice^ page 634-; when officer may execute on
holiday y sec. 665 ; may break and enter building to execute, sec.
676; claimant of property may be made party, sec. £9.)
§ 204. Doty of officer oa whom executed — penalty. It shall be the duty
of every officer upon whom an order of attachment may be executed
pursuant to section two hundred and three, subsection two, to fur-
nish an inventory and appraisement of the attached property held
by him, or copies thereof, and a statement of the distress or process
under which, and of the sum for which, it is held, to the officer
executing the attachment; and to hold so much of the attached
property, or of its proceeds, as may not be necessary to satisfy such
process or distress, subject to the order of the court from which the
attachment issued; and his failure to perform either of those duties
may be punished by the court as a contempt.
(5) Leaviof property In charge of a third (9) i^>wers of officer in levying attach-
person. The sheriflf levied on a stock of ment, see Ky. Stat., sec. 4583.
goods, and left them in possession of the (10) PresnmptioB that officer did his daty.
person in charge of the store, without Where the return of the officer showed
closing it. The levy was valid, and the that he ** posted a copy of the order on
party held the goods as bailee of tlic the premises, there being no tenant,** it
sheriflf. Howell v. Com. Bank, 5 Bush 93. will be presumed that he posted it in a
(6) Levy after retaro day void. The levy conspicuous place. Lewis v. Quinker, 3
of an attachment after the return day is Met. 3S4. And if return describes the
void. Peters v. Conway, 4 Bush 565. property and states that it was levied on,
(7) Maaner of execotiof on farnishee. It without stating how, it will be presumed
was held in Henderson v. Specker, 79 that he did his duty and complied with
Ky. 509, that a garnishee must be served the law. Anderson v. Sutton, 3 Duv.
with a copy of the order of attachment, 480 ; Scott v. Scott, 85 Ky. 385 ; Phelps
together with a notice specifying the debt v. Ratcliflfe, 3 Bush 334; Buckner v.
or demand attached. This case has been Bush, 1 Duv. 394.
overruled by Bell V. Wood, 87 Ky. 56 ; and (11) In an action against A, the ofB-
see amendment to subsection 3. cer*s return atntod that he left a copy of
(8) Personal property must be first the order with B on the premises, with-
taken, sec. 306, but if an officer levy on out stating that B was the ^occupant,
land, although there may be personal Held sufficient, as it will be presumed
estate, it will not render the levy invalid. that B was the occupant. Thomas v.
13 B. M. 114. Mahone, 9 Bush 111.
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TITLB VIIl] BXBCUTION AND RETURN OF. 185
§ 205 ctstj Garnishee' — doty of — penalty. It shall be the duty of every
person mentioned in subsection three of section two hundred and
three, to whom the sheriff shall apply therefor, to furnish him a cer-
tificate of the number of shares of the defendant in the stock of the
corporation, or a description of the property held by such corpora-
tion or person for the benefit of the defendant, or belonging to him,
or the amount of the debt owing to the defendant, by such corpora-
tion or person, whether due or not ; and a failure [to perform this
duty may be punished by the court as a contempt.
§ 2M [MO] Personalty to be first taken. The defendant's personal
property shall be first taken under an attachment ; if enough thereof
be not found, then his real property.
§ Iffl [SSI] Fund in court — attachment of. If the property to be attached
be a fund in court, the attachment shall be executed by leaving with
the clerk of the court a copy thereof, with a notice specifying the
fund ; and if several orders of attachment be executed upon such
fund on the same day, they shall be satisfied out of it ratably.
§ 208 [882] Joint property — execution of bond by plaintiff. The sheriff shall
not, in executing an attachment upon personal property held by the
defendant in the attachment jointly or in common with another per-
son, take possession of such property, until a bond be executed to
such other person, by one or more sufficient sureties of the plaintiff,
to the effect that he shall pay to such person the damages he may
sustain by the wrongful suing out of the order, not exceeding double
the amount of the plaintiff's claim. (Form of bondj page 634,; if
defective J new one may be executed^ sec. 68^; sureties may be sworn j
qualifications of sees. 683, 68^)
§ 209. Joint property in action against Joint debtors. In an action
against joint debtors, in which an interest in joint property is
attached under an order of attachment against only a part of them,
if judgment be rendered against all of the defendants, and the attach-
ment be sustained, the court may subject the whole of the joint
property, then undisposed of, to the satisfaction of the judgment.
{Meaning of ^^ joint property, '^ sec. 73^-^29)
§ 210. Attachments from different courts — proceedings. If attachments^
levied on the same property, in whole or in part, be pending in
different courts —
(12) PrDperty levied on can not be seized 218 ; Oldham v. Scrivener, 3 B. M. 579 ;
or sold under an execution or by another Rogers v. Damaby, 4 B. M. 238.
officer so as to defeat rights of attaching § 210. (1) Tra n s f e r of attachmeats.
creditors. Husbands v. Jones, 9 Bush Clerk of one court must obey the order of
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186 EXECUTION AJSTD RBTUKN OF. [TITLE Vni
1. If the courts be of equal jurisdiction, either of them, or
during vacation the judge thereof^ may order the removal of so
many of said attachments, and of the actions in which they may
have been issued, as may be necessary to have all of them in one
of said courts.
2. K the courts be not of equal jurisdiction, one of said courts
of superior jurisdiction, or the judge thereof during vacation,
may make said order of removal to one of said courts of superior
jurisdiction.
3. Such order may be made on the motion of any party to
either of said actions, after reasonable notice to all other par-
ties to said actions or to their attorneys ; and affidavits may be
read for or against the motion.
4. Clerks of courts shall, pursuant to such order, immediately
remove the papers in the case therein mentioned, accompanied
by certified copies of the orders made therein ; and, if the re-
moval be to another county, the clerk shall have the fees allowed
by law for like services in cases of change of venue — ^to be paid
in advance by the applicant for the removal, and to be taxed in
the costs, and finally paid out of the attached funds, or by such of
the parties as the court may order.
§ 211. Bond of ifldemnity — officer may require. If an officer who levies,
or is required to levy, an attachment upon personal property doubt
whether it is subject to the attachment, he may give to the plaintiff
therein, or to his agent or attorney, written notice that an indemnify-
ing bond is required. If the plaintiff* cause a bond to be executed,
with good surety, to be approved by the officer, or the judge of the
court from which the attachment issued, to the effect that the
obligors will indemnify the officer against any damage he may sus-
anothercourt removing attachments; and (3) It is a condition precedent to the
when the order of removal is made, it power of one court to order the transfer
operates to divest the court from which of cases from another, under the provls-
the action is removed of all jurisdiction ions of this section, that attachments
over it; and all motions pending and shall have been levied. Although an
under submission at the time the order action may have been improperly trans-
is made are thereafter pending in the ferred from the court in which it was
court to which action is removed. SchroU brought, the plaintiff, by moving for
V. Speed, 14 Bush 186. judgment in the court to which it has
(2) The circuit court has power to been transferred, waives his right to
remove to it an attachment pending in a object to the jurisdiction. Howe v. 8te-
justice*s court and levied on the same venson, 84 Ky. 576.
property as an attachment issued from §211. Bond of indemaity. The taking of
the circuit court. Turners v. Howard, a bond of indemnity by the sheriff be-
2 Duv. 112. fore levying an attachment does not
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EXECUTION AND RETUKN OF.
187
tain by reason of the levy of the attachment, such officer shall pro-
ceed to iBxecute the attachment. If the attachment has not been
levied, the officer may refuse to levy it unless bond be executed as
Above provided ; or, if the attachment has been levied, the officer
may release the property, unless such bond be executed within a
reasonable time after the notice requiring it shall have been given.
(Form of bondj page 634 > ^^^ references under j sec. £08.)
§ 212 [sss] Uea created by attachment An attachment binds the de-
fendant's property, in the county, which might be seized under an
execution against him, from the time of the delivery of the order
to the sheriff, in the same manner as an execution would bind it ;
and the lien of the plaintiff is completed upon any property or
demand of the defendant by executing the order upon it in the man-
ner directed in this article.
prevent a claimant of the property levied
on from suing the officer on his official
bond. Lewis v. Mansfield, 78 Ky. 460.
§ 212. (1) Lien ef attachmeat The lien
of an attachment on land is not defeated
or affected by the subsequent levy of an
execution. Husbands v. Jones, 9 Bush 218.
(2) The lien created by the levy of an
attachment will prevail against the rights
of a grantee in a mortginge who has not
actually accepted it, where the attach-
ment lien is created subsequent to the
making of the deed, but before its deliv-
ery. Bell V. Farmers Bank, 11 Bush 34.
(3) A lien is created by the levy of an
attachment on an equitable interest in
real estate. Bank v. Barrick, 1 Duv. 51.
(4) If the service of an attachment is
acknowledged by the defendant, a lien is
created on his estate only from the time
of the acknowledgment. Pfielps v. Rat-
cliffe, 3 Bush 334.
(5) A citizen of Ohio made in Ohio an
assignment for the benefit of his credit-
ors. Afterward a debt due the assignor
by a citizen of this State was attached
by a resident of this State in a court of
this SUte. Held that the lien of the
attaching creditor was superior to the
claim of the assignee. Johnson v. Parker,
4 Bush 149; but see Coffin v. Kelling, 83
Ky. 649, impliedly overruling Johnson v.
Parker.
(6) Service of an attachment upon a
common carrier did not create a lien upon
the property of the defendant in the cus-
tody of the carrier in another State,
although the carrier was within the juris-
diction of the court. No lien was created
upon the property until it came within
the county where the order of attachment
was in the hands of the officer. Suther-
land V. Bank, 78 Ky. 250.
(7) Lien equitable only. An attachment
gives only an equitable lien, which must
yield to a prior equity, such as may be
created by an unrecorded assignment.
Ward V. Croty, 4 Met. 60 ; or the right of
a vendor in goods that have been pur-
chased with the fraudulent intention of
not paying for them. Lane v. Robinson,
18 B. M. 623; or the claim of a creditor
who has advanced money on property
pledged to him by the delivery of the bill
of lading. Pettit v. Bank, 4 Bush 334; or
an assignee to whom the debtor has
assigned by parol the debt attached be-
fore the service of the attachment. Newby
V. Hill, 2 Met. 530; Forepaugh v. Appold,
17 B. M. 625; Gray v. Briscoe, 6 Bush 687;
or the rights of partnership creditors to
subject partnership property before debts
which are not firm liabilities are paid
out of the firm property. O'Bannon v.
Miller, 4 Bush 25; 5 Bush 93; or the claim
of a principal to funds owned by him and
attached by creditors of his agent, in
whose name they were deposited. Skill-
man V. Miller, 7 Bush 428.
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138
EXECUTION AND RETURN OF.
[title VIII
§ 213 [as4] Officer may parsae and attach in another coanty. If, after an
order of attachment has been placed in the hands of the sheriff, any
property of the defendant be removed from the county, the sheriff
may pursue and attach it in another county within twenty-four
hours after the removal.
§ 214 [S86] Person in possession may execute bond and retain property. The
sheriff may deliver any attached property to the person in whose
possession it is found, upon the execution, in the presence of the
sheriff, of a bond to the plaintiff, by such person, with one or more
sufficient sureties, to the effect that the obligors are bound, in double
the value of the property, that the defendant shall perform the
judgment of the court in the action, or that the property or its value
shall be forthcoming and subject to the order of the court. (Form
of bondy page 636 ; if defective^ new one may be executed^ sec. 682;
sureties may be sworn, qualifications of sees, 683^ 684; executing bond
enters appearance^ 690.)
(8) A deed of assignment executed and
delivered to assignee takes precedence
of an attachment placed in officer's hands
after execution and delivery of deed but
before It is lodged for record. First Nat.
Bank v. Kiefer Milling Co., 95 Ky. 97.
(9) Order in officer's hands, with directions
not to execute, does not create a lien on the
property of the defendant while it is in
the hands of the officer, with instructions
not to levy until ordered. Gray v. Patton,
13 Bush 625; and an assignment made by
debtor while attachment is so held takes
precedence over it. Blakely v. Smith, 16
R. 109.
§214. (1) Claimnnt must present his
claim. A claimant of attached property
who executes bond and retains the pos-
session must present his claim, as pro-
vided in section 29, or he will be estopped
from asserting it afterward. Miller v.
Desha, 3 Bush 212.
(2) Common law bond. A bond executed
before the levy of the attachment, but
after it came into the officers' hands, is
good as a common law bond. Cook v.
Boyd, 16 B. M. 556.
(3) Defendant may execute bond for forth-
coming of property under this section.
Hobson V. Hall, 13 R. 109.
(4) Discharge of attachment If the de-
fendant desires to obtain a discharge of
the attachment and restitution of the
attached property, he may do so by giv-
ing the bond provided for in section 221.
When that bond is executed, all power
of the court or its officers over the at-
tached property ceases, and the plaintiff
can look only to the bond. Bell v. West-
ern River Co., 3 Met. 557 ; the bond pro-
vided for under this section does not
discharge the attachment, it is only an
obligation for the forthcoming of the
property. 3 Met. 557.
(5) Enforcement of bond for the forth-
coming of property may be by rule or
by action. Oppenheimer v. Riley, 6
Bush 118 ; and see sec. 232 ; 6 B. M. 597.
(6) Liability of oblifors if liens on property.
Where a focthcoming bond has been ex-
ecuted, and the property is not more
than sufficient in value to satisfy prior
liens upon it, subject to which the at-
tachment was levied, the obligors in the
bond are liable only for nominal damages
for their failure to produce the property.
Hayman v. Hallam, 79 Ky. 389.
(7) Loss of property. The claimant of
attached property, having executed bond
and taken possession of the attached
property, failed to sustain his claim on
the trial of the action, and was held
liable for the value of the property (a
horse), it having died without his fault
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TITLE Vin]
EXECUTION AND RETURN OF.
139
§ 215[aM] Apprateemeot off property retained. For the purpose of taking
this bond, the sheriff shall cause the property to be appraised by
three disinterested housekeepers, to be selected and sworn by him to
make a fair appraisement, and who shall indorse their appraisement
on the order of attachment. (Form of appraisement^ page 635 .)
§ 216 [ssT] Defenses not allowed in action on bond. In any proceeding on
this bond it shall not be a defense that the property was not subject
to the attachment.
§ 217 [sstj Return of officer — ^what It shall show. The sheriff shall return
upon every order of attachment what he has done under it. The
return must show the property attached, when it was attached, and
the disposition made of it. K garnishees be summoned, their
names and the time when each was summoned must be stated. And
if real property be attached, the sheriff shall describe it with suffi-
cient certainty to identify it, and, if he can do so, he shall refer to
the deed or title under which the defendant holds it. He shall return,
with the order, all bonds taken under it.
during the pendency of the action. Dear
V. Brannon, 4 Bush 471 ; see Bush v.
Groom, 9 Bush 675.
(8) Natare of the bead. The bond is to
be regarded as a mere obligation for the
forthcoming of the property ; the lien
created by the attachment, and the
power of the court over the attached
property, subsist and continue as effect-
ually as if no bond had been given, or
the possession never taken out of the
hands of the ofBcer. Bell v. Western
River Co., 3 Met. 557; and continues
until final judgment is rendered dispos-
ing of attachment. Hobson v. Hall, 13
R. 109.
(9) OwMr nay execote boad aad coatest
attachaieat The owner of property, in
whose possession it is found, if it be
levied upon by an attachment against
another person, may give the bond pro-
vided for in this section, and is not pre-
cluded thereby from presenting his claim
to the property, as allowed in section 29,
and disputing the validity of the attach-
ment. Schwein v. Sims, 2 Met. 209 ; and
see Halbert v. McCulloch, 3 Met. 456.
(10) RIfhtsaad liabilities of obUfors. The
obligors in a forthcoming bond are not
exonerated by the delivery of part of the
property, they are responsible for the
full value of the property not delivered.
Bland v. Creager, 13 B. M. 511 ; see fur-
ther, 6 B. M. 597.
(11) Action upon the bond does not
accrue until the case has been disposed
of. Hansford v. Perrin, 6 B. M. 597.
(12) A peremptory rule against the
obligors in such a bond to pay plaintiff's
debt is erroneous. They should be al-
lowed an opportunity to contest tlie
existence of their liability, and the alter-
nate right of discharging the bond by
producing the property. Oppenheimer
V. Riley, 6 Bush 118 ; Taylor v. Taylor,
3 Bush 118.
(13) Straafcrs who have come into pos-
session of the property may be required
by the court to produce it. Hansford v.
Perrin, 6 B. M. 595.
§ 216. Defeases aot allowed. If the at-
tachment is sustained, in an action on
the bond, the obligors can not put in
issue and retry the question as to whether
the property was subject to the attach-
ment. Schwein v. Sims, 2 Met. 209.
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140 DISPOSITION OF ATTACHED PROPERTY. [TITLE VIII
SUBDIVISION 4.
DIBPOSmON OP ATTACHED PROPERTY.
§ 218. Preservation, use or sale of attached property.
§ 219. OfBcer allowed expense of keeping property.
§ 220. Defendant and claimant required to give information concerning.
§ 218 cast] Preservation, use or sale of attached property. The court in
which the action is pending, or during vacation the judge thereof,
or, if he be absent from the county, the presiding judge of the county
court, shall make proper orders for the preservation and use of
attached property ; and for the sale of it, if, by reason of its perish-
able nature, or the cost of keeping it, a sale of it would be beneficial
to the parties; and for the collection and payment into court of
attached funds and choses in action ; and, for any of those pur-
poses, may make an order appointing a receiver, with authority
to act as the court may direct — who shall give bond with good
surety, to be approved by the court or judge, for the faithful per-
formance of his duties ; but neither of those orders shall be made
during vacation, except after reasonable notice, in writing, of the
time and place of the application therefor, to the opposite party or
his attorney, if either of them reside in the county in which the
action is pending. Such sale shall be made publicly, after advertise-
ment, and upon such terms of credit, with good security, as the
court or judge, having regard to the probable duration of the action,
may direct. Moneys received by the sheriff upon sales of attached
property, or from garnishees, shall be held and paid by him under
the same requirements and responsibilities of himself and his sureties
as are provided in respect to money deposited in lieu of bail.
§ 219 [S40] Officer allowed expense of keeping property. The sheriff or
receiver shall be allowed by the court the necessary expenses of
keeping the attached property, to be paid by the plaintiff and taxed
§ 218. (1) Disposition of attached property (2) Tlie evidence upon which the in-
— practice. Where it appears from the ferior courts act in relation to the sale of
answer of a garnishee that the amount personal property as authorized by this
of his indebtedness is uncertain, depend- section is not required to be in writing,
ing on future contingencies, the court and, in the absence of anything to the
can do nothing more than to make such contrary, it will be presumed the court
interlocutory order in the form of an in- acted correctly. Dunn v. Salter, 1 Duv.
junction or otherwise as will protect the 342.
rights of the plaintiff ; retaining control (3) A sale of attached property made
of the case for such further orders as under an order of the county judge
may be proper. Roberts v. Drinkard, 3 sliould be reported to the court in which
Met. 309. the action is pending, and that court has
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TITLB VIIl] PROCEEDINGS UPON ATTACHMENTS. 141
in the costs. In the case of a steamboat attached, he may be allowed,
for his own superintendence thereof, not exceeding one dollar per
day, and such sums as he may actually expend for the safe-keeping
of the boat, not to exceed, for the pay of persons employed, the
usual wages of a mate and a deck-hand, unless more than two per-
sons have been employed by the order of the court or of the judge
thereof.
§ 220 [a«i] Defendant and claimant reqnired to five information concerninf.
The court may require the defendant, or the claimant of any attached
property, to appear before it, and give information, on oath, concern-
ing the property: and if it appear from the plaintiff's affidavit, or
the return of an order of attachment, that no propert}', or not
enough to satisfy the plaintiff's claim, is known to the plaintiff* or
the officer, on which the attachment can be executed, the court may
order the defendant to attend before it and give information, on oath,
respecting his property ; and if it also appear from the affidavit, that
a person, other than the defendant, has in his possession property of
the defendant, or evidences of debt, the court may require such per-
son to appear before it, and give information, on oath, respecting the
same ; and the court may enforce those orders by process as in cases
of contempt.
SUBDIVISION 5.
PR0CBBDIN08 UPON ATTACHMENTS.
g 221. Bond of defendant to discharge attachment.
§ 222. Bond — sheriff or clerk may take.
§ 223. Garnishee — payment of money by^osts.
§ 224. Garnishee must appear and answer.
§ 225. Garnishee indebted to defendant — proceedings.
§ 226. Garnishee failing to answer — proceedings.
g 227. Garnishee — action by plaintiff against.
g 228. Judgment for defendant — effect of.
g 229. .Judgment for plaintiff— effect of.
g 230. Real property— when sale of allowed.
§ 231. Surplus to be returned to defendant.
g 232. Delivery of property and payment of proceeds — court may compel.
jurisdiction to confirm or set aside the tion of insolvency, it was held that the
sale so made. Greer v. Powell, 3 Met. court before final hearing might order a
125. sale of the mortgaged property as pro-
(4) In an action under the act of 1856 vided in this section. Terrill v. Jen-
to declare a mortgage made ii) contempla- nings« 1 Met. 450.
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142
PROCEEDINGS UPON ATTACHMENTS.
[title VIII
§ 233. Court to control property and prpceeds.
§ 234. Sheriff may be ordered to retake property.
§ 235. Reference of attachments to commissioner.
§ 236. Bond — additional surety may be required.
§ 221 [SM] Bond of defendaot to discluute attachment If the defendaut,
before judgment, cause a bond to be executed to the plaintiff' by one
or more sufficient sureties, approved by the court, to the effect that
the defendant shall perform the judgment of the court, the attach-
ment shall be discharged, and restitution be made of any property
taken under it or of the proceeds thereof. {Form of bond, page 635 ; if
bond defective^ new one may be executed^ sec, 68^ ; sureties may be swom^
qualifications of sees, 683, 684-; executing bond enters appearance,
sec. 690.)
§ 222 ia4s] Bond — sheriff or clerk may take. The bond mentioned in
the last section may, in vacation, be executed in the presence of the
sheriff having the order of attachment in his hands, or, after the
g 221. (1) Bond to dischaiie attachmeat—
effect of. When this bond is executed, all
power of the court and its officers over
the attached property ceases, and the
plaintiff can look only to the bond. Bell
V. Western River Ck)., 3 Met. 557. The
attachment is discharged by operation
of law, and the obligors! n the bond are
bound unconditionally to perform the
judgment of the court in the action. In
an action to enforce the bond, neither the
sufficiency of the grounds of the attach-
ment nor the liability of the property
levied on can be inquired into, nor can
the claims which any person may have
to the attached property be investigated.
Hazelrigg v. Donaldson, 2 Met. 445 ; Tay-
lor V. Taylor, 3 Bush 118; Inman v.
Stratton, 4 Bush 445; Bell v. Western
River Ck).. 3 Met. 557.
(2) The property attached was owned
by the surety in the bond executed under
this section, but the surety could not
resist the collection of the bond on that
ground, nor on the ground that he had
offered the sheriff a forthcoming bond
as provided in sec. 214, which he had a
right to execute, but the sheriff refused
to accept. Hazelrigg v. Donaldson, 2
Met. 445.
(3) Collection of by role. (Collection of
bonds taken under this section may be
enforced by rule. Leet v. Locke tt, 4
Met. 56; 12 Bush 416; sec. 232. But
notice should be given to the obligors in
the bond before judgment is given against
them. Taylor v. Taylor, 3 Bush 118.
(4) PorthcofliiBf bond may be executed
by defendant or person in possession of
property, as provided in sec. 214, and any
defenses that may exist to grounds of
attachment or to the ownership of the
property levied on can be made on trial
of attachment but not in action on bonds.
Schwein v. Sims, 2 Met. 209; Miller v.
Desha, 3 Bush 212 ; Hobson v. Hall, 13
R. 109.
(5) Most be exeorted in court, if coart la
sessioo. Bond discharging the attach-
ment must be executed in court, if the
court is in session ; and such a bond,
taken by the sheriff when the court is
in session, can not be treated as a statu-
tory bond. The Louisville Chancery
Court is always in session, and a bond
taken by the sheriff of Jefferson county,
to discharge an attachment issued by
the Louisville Chancery Court, can not
be collected by rule. Louisville R. R.
Co. V. Masonic Bank, 12 Bush 416.
(6) Repleyyiof Jodpneot releases sorety.
A surety in a bond given under this sec-
tion is released from liability by the ex-
ecution of a bond replevying the judg-
ment rendered against the defendant.
Gray v. Merrill, 11 Bush 633.
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TITLE Vni] PROCEEDINGS UPON ATTACHMENTS. 143
return of the order, before the -clerk, with the same effect upon the
attachment as if executed in court — ^the sureties, in either case, to be
approved by the officer.
§ 223 [S44] Qamishee — iiaymeiit of money by — costs. The garnishee may
pay the money owing to the defendant by him, not exceeding the
plaintiff's claim and costs, to the sheriff having in his hands the
order of attachment, or into the court ; and to that extent he shall
be discharged from liability to the defendant. He shall not be sub-
jected to costs beyond those caused by his resistance of the claim
against him ; and, if he disclose the property of the defendant in
his hands, or the true sum owing by him, and deliver or pay the
same to the sheriff, or according to the order of the court, he shall
be allowed his costs.
§ 224 [SM] Garnishee must appear and answer. Each garnishee sum-
moned shall appear. The appearance may be in person ; or by the
affidavit of the garnishee filed in court disclosing truly the sum
owing by him to the defendant, whether due or not, and the property
of the defendant in the possession or under the control of the gar-
nishee ; and, in the case of a corporation, any shares of stocks there-
in held by or for the benefit of the defendant, at or after the service
of the order of attachment.
§ 225 [Mt] Garnishee indebted to defendant — proceedini^s. If a garnishee,
or officer of a corporation summoned as a garnishee, appear in per-
son, he may be examined on oath ; and, if it be discovered on such
§ 221, (1) Qanilshee— payment by. In garnishee's liability to the debtor. N. <&
an action in a justice's court by A C. Bridge Co. v. Douglass, 12 Bush 673 ;
against B, C was summoned as a gar- Greer v. Powell, 1 Bush 489.
nishee ; on the trial the attachment was (3) Lien created by attachment See sec.
discharged, and an appeal at once taken 212 and notes thereto,
to the circuit court. Immediately after § 224. (1) Answer by faroiahee is suf-
the judgment was rendered discharging ficient to create a lien on the property
the attachment, the garnishee, 0, by attached in his hands, although the
direction of the justice, paid the money service upon him is defective. Citj' Nat.
attached to B ; on the trial in the cir- Bank v. Gardner, 5 R. 689.
cuit court the attachment was sustained (2) Garnishee having answered ad-
and the garnishee required to pay the mitting an indebtedness may be required
money attached to A ; this judgment to respond to an amended pleading alleg-
was afSrmed. Whether a garnishee ing that he owes more than he has ad-
must hold money attached until time mitted. Lee v. Walston, 8 R. 129.
for taking appeal expires, not decided. §225. (1) Action terminated as to far-
Puflf v. Huchter, 78 Ky. 146. nialiee. When a mere garnishee against
(2) QamislMe — rifhta of plaintiff against whom no action has been instituted files
The plaintiff does not acquire any greater an answer denying his liability, the case
rights against the garnishee than the de- is terminated so far as his rights are to
fendant himself possesses, and his re- be affected, and the court has no right to
course is limited by the extent of the hear proof conducing to show that his
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144
PROCEEDINGS UPON ATTACHMSKTS.
[title VIII
examination that, at the service of the order of attachment upon
him, he or the corporation was possessed of any property of the
defendant, or. was indebted to him, the court may order the delivery
of such property, and the payment, or security for the payment, of
the sum owing by the garnishee, into court, or to such person as it
may direct — who shall give bond, with security, for the same ; or the
court may permit the garnishee to retain the property or the sum
owing, upon the execution of a bond, with one or more sufficient
sureties, to the effect that the sum shall be paid, or the property be
forthcoming, as the court may direct. Performance of such bonds,
for the forthcoming of property, may be enforced as in cases of con-
tempt : upon such bonds for payment of money, execution may be
bsued as upon replevin-bonds.
denial is untrue. When the garnishee
fails to answer or does not make satis-
factory disclosure, the court may hear
proof. Wilder v. Shea, 13 Bush 128.
(2) Clainaot to be nade party. When
the answer of the garnishee shows that
the money sought to be recovered from
him belongs to one not a party, the court
should order him brought before it.
Forepaugh v. Appold, 17 B. M. 625;
Martin v. Mobile R. R. Co., 7 Bush 116.
(3) Coatract— ganiisbee aat reqaired to
violate — or pay in things other than he
contracted to pay. Blackburn v. David-
son, 7 B. M. 102 ; but he can not after
garnishment change his liability and
thereby avoid attachment. Biggs v.
Kouns, 7 Dana 405.
(4) Debt Bot dae or liabiltty coatiaf eat—
the court should make such orders in
reference thereto as will protect the
rights of the plaintiff, reserving control
of the case for such orders as may be nec-
essary. Roberts v. Drinkard, 3 Met. 309;
and see Sheriff v. Buckner, 1 Litt. 126.
(5) Qaraishee — bow proceeded a{aiast
Where the garnishee in a general attach-
ment has been summoned and appears,
and discloses the amount of his indebted-
ness to the defendant, or where he makes
default by failing to appear, and the
court, as It may do, hears proof as to the
amount of his indebtedness, he may be
ordered to pay the amount into court or
to a receiver, or may be allowed to retain
it on the terms fixed by law. The court
may make either of these orders at its
discretion, and as the circumstances of
the case may render most appropriate,
and may, by its process of rule and at-
tachment, compel the garnishee to obey
and perform its mandate as in like cases.
When a garnishee fails to appear either
in person or by affidavit, the court may
coerce his personal appearance for exam-
ination, or may hear proof of his indebt-
edness. Smith v. Gower, 3 Met. 171.
(6) Jodpneat axaiast faralsbee— effect of.
Judgment against a garnishee is equiv-
alent to payment to his creditor, and if
the judgment is rendered before he has
notice of the assignment of his note by
his creditor, it will be a valid defense
against the assignee, although his as-
signment was prior to the judgment.
Cobum V. Currens, 1 Bush 242.
(7) When the obligor in a note havings
notice of its assignment is summoned as
a garnishee, and fails to disclose the as-
signment, or to make the assignee a
party, he will be liable to the assignee,
notwithstanding the judgment against
him as garnishee. Bibb v. Tomberlin, 1
Duv. 186.
(S) Jodfoieat axaiast garaiabee should
provide that he be discharged from pay-
ment to his creditor to the extent of
amount paid under judgment. Atcheson
V. Smith, 3 B. M. 502.
(9) Persoaal jodpneat— wbea aiay be rea-
dered. A personal judgment can pot be
rendered against a garnishee, enforceable
by execution, Unless he has been made a
defendant to the action. If he is made a
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TITLE VIIl] PROCBEDINGS UPON ATTACHMENTS. 145
§ 226 [s4Tj Qaroishee failins to answer — proceeding If such garnishee
or officer make default, by not appearing, the court may, on the
motion of the plaintiff, compel him to appear in person for examina-
tion, by process as in cases of contempt ; or it may hear proof of
any debt owing or property held by the garnishee to or for the
defendant, and make such order in relation thereto, as if what is so
proved had appeared on the examination of the garnishee or officer,
§ 227 [su] Garnishee — action by plaintiff afainst. If a garnishee fail to
make a disclosure, satisfactory to the plaintiff, the latter may bring
an action against him, by petition or amended petition, in the same
manner, and the proceedings therein shall be the same as in other
actions ; and the plaintiff' may procure an order of attachment in
the same manner, and the proceedings thereupon shall be the same,
as is hereinbefore and hereinafter authorized concerning attachments
— except that the plaintiff's affidavit shall state, in addition to the
facts required to be stated in section one hundred and ninety-six,
the sum which the defendant owes to the plaintiff's debtor; and
the plaintiff shall not be entitled to attach for or recover more than
that sum and costs nor more than the amount of the plaintiff's claim
against his debtor and costs.
§ 228 [<«•] Jndfnient for defendant — effect of. If judgment be rendered in
the action for the defendant, or if the attachment be discharged —
1. The property attached, or its proceeds, shall be returned to him.
2. The proceedings against a garnishee shall be dismissed.
(Judgment f (fir defendant attachment shall be discharged^ sec. £60.)
§ 229 [sto] Jndfnient for plaintiff — effect of. K judgment be rendered for
the plaintiff, the court shall apply in satisfaction thereof —
defendant to an action on a return of § 226. Rule may Issue against garnishee
*• no property," and served with process, to bring money into court, or to produce
and it is charged in the petition that he property. Cavanaugh v. Fried, 3 R. 253;
is indebted in a certain sum, on his fail- and see notes to sec. 225.
ure to answer, judgment may be rendered §227. (1) Action afsiost santishee may
against him for the amount. Bowen v. be prosecuted if he fails to make satisfao-
Emmerson, 4 Bush 345 ; Griswold v. Pop- tory disclosures, and attachment may be
ham, 1 Duv. 170; Smith v. Gower, 3 obtained against him. Wearen v. Ma-
Met. 171 ; Joyce v. O'Toole, 6 Bush 31. theney, 3 R. 710.
(10) An allegation that A and B are (2) Qsraishee who has answered may be
indebted to C in an amount sufficient to required to respond to an amended plead-
satisfy the judgment sought to be col- ing alleging that he owes more than he
lected, imports no more as to B than a has admitted. Lee v. Walston, 8 R. 129.
separate indebtedness, which, together § 228. Costs. The cost growing out of
.with the indebtedness of A, is sufficient an attachment that is discharged should
to satisfy the judgment. Warner v. not be taxed against the defendant.
Bryant, 9 Bush 212. Southwood v. Myers, 3 Bush 681.
(11) State can not be made garnishee. §229. (1) Claimant of attached property
Tate V. Salmon 79 Ky. 640. may assert his claim as provided in sec.
(10)
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146
PROOBEDINGS UPON ATTACHMENTS.
[title VIII
1. Moneys arising from property sold pending the litigation.
2. Proceeds of the debts and funds attached in the hands of the
garnishee.
If these be not sufficient to satisfy the plaintiff's claim, the court
shall order a sale, by the sheriff, of any other attached property
which may be under its control, in the following order:
1. Personal property.
2. Real property, or so much thereof as may be necessary to
satisfy the plaintiff's claim. (Judgment for plaintiffs attachment
sustained — when^ sec. S61; terms of sale^ sec. 696)
§ 2J0 [Sill Real property — when $ale of allowed. Xo order for the sale
of real property seized under attachment shall be made in any action
in which the defendant has not appeared, or been actually sum-
moned, until an affidavit of the plaintiff, or of his^ agent or attorney.
29. Taylor v. Taylor, 3 Bush 119 ; Bank
V. Overstr^et, 10 Bush 148 ; and creditor
of attachment debtor may attack suf-
ficiency of attachment. 10 Bush 148 ; 4
Bush 565.
(2) Conflter^laim. Damages for suing
out the attachment can not be pleaded as
counter-claim in attachment suit. Nolle
V. Thompson, 3 Met. 121.
(3) Land lylnf io a cooaty other than
that in which action is pending may be
sold if levied on under attachment. Nixon
V. Jack, 16 B. M. 174.
(4) MotioB for aew trial is not necessary
to prosecute an appeal from an order .
sustaining an attachment. Francis v.
Burnett, 84 Ky. 23.
(5) Persoaalty to be first sobjccted.
Where an interest in both real and per-
sonal property has been attached, it is
erroneous to order a sale of the realty
without first subjecting the personal
estate, or ascertaining there is none.
Davidson v. Simmons, 11 Bush 330.
(6) Where garnishees are summoned,
and it is alleged that they owe the de-
fendant, before any real estate attached
is sold, the funds in the hands of tho
garnishees should be applied to the pay-
ment of the debt. Anderson v. Sutton,
2 Duv. 480; and see Perry v. Seltz, 2
Duv. 122.
(7) Personal Jadpnent for debt, although
there has been no service of process, is
proper when the defendant has filed an
answer in which he does not controvert
plaintiff's claim. Bank of Commerce v.
Payne, 86 Ky. 446.
(8) Pleaainf. Denial in the answer of
the grounds of attachment relied on
makes an issue. Talbot v. Pierce, 14 B.
M. 195.
(9) Where defendant has only an un-
divided interest with one not a party to
the suit, it is error to order a sale of
attached property without making other
owner a party. 14 B. M. 195.
(10) Practice—Separation of conclusions
of law and fact is not necessary in
attachment cases. 84 Ky. 23.
(11) Sale of land under an attachment
which had not been levied upon, the
land passed no title to purchaser. Rob-
son V. Shea, 5 R. 601.
(12) Time on which attached property
should be sold. See 1 Duv. 342 and sec.
696.
§ 2Je. Affidavit before sale of real prop-
erty. A judgment directing the sale of
land in an action in which the defendant
has not appeared, or been actually sum-
moned, before the affidavit required by
this section is made, is erroneous. Jack-
son v. McElroy, 2 Bush 132; Payne v.
Witherspoon, 14 B. M. 270.
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TITL5 VIIl] PROCEBDINaS UPON ATTACHMENTS. 147
has been filed to the effect that the defendant has no personal prop-
erty, or not enough to satisfy the claim of the plaintiff', in this State,
known to the affiant.
§ 231 [sts] Sorplos to be retorned to defendaot. Any surplus of the
attached property, or of its proceeds, shall be returned to the
defendant.
§ 232 [8t4] Delivery of property and payment of proceeds — conrt may compel.
The court may, by summary proceedings, compel the delivery to the
sheriff, for sale, of any attached property for which a bond may
have been given ; or, for such sums of money as may be due upon
such bonds, execution may issue as upon replevin-bonds. {Provisions
concerning summary proceedings^ sees. 444- to 44^*)
% 233 [s»B] Court to control property and proceeds. The court may, from
time to time, make and enforce proper orders respecting the prop-
erty, sales and the confirmation thereof; and the application and
payment of the moneys collected.
§ 234 [tst] Sheriff may be ordered to retake property. It may order the
sheriflT to repossess himself, for the purpose of selling it, of any at-
ta<5hed property which may have passed out of his hands without
having been sold or converted into money ; and the sheriff shall,
undefr such order, have the same power to take the property as upon
an order of attachment.
§ 235 [sBTi Reference of attachments to commissioner. If several attach-
ments be executed on the same property, the court, on the motion of
any one of the attaching plaintiffs, may order a reference to a com-
missioner, to ascertain and report the amounts and priorities of the
several attachments. {If from different courts^ may he removed to one
court, sec. SIO)
§ 236 [80t] Bond — additional surety may be required. The defendant may,
at any time before judgment, after reasonable notice to the plaintiff,
move the court for additional security on the part of the plaintiff;
and if, on such motion, the court be satisfied that the surety in the
plaintiff's bond have died or removed from this State, or is not suffi-
cient for the amount thereof, it may vacate the order of attachment
and direct restitution of any property taken under it, unless in a rea-
sonable time, to be fixed by the court, sufficient security be given by
the plaintiff.
§ 232. Role nay be iisoed against person has disposed of property to require hi m to
having possession of attached property to account for proceeds. Turpin v. Smith,
compel its surrender for sale, or if person 7 R. 371.
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148 ATTACHMENT OR ORDER OF ARREST. [tITLB VUl
ARTICLE 2.
ATTACHMENT OR ORDER OF ARREST IN CERTAIN ACTIONS.
§ 237. Action before debt matures — when allowed.
§ 238. Attachment or order of arrest — how obtained.
§ 239. Requisites of attachment or order.
§ 240. Bond to be executed before issual.
§ 241. Sections of Code applicable.
§ 242. Judgment before debt due — costs— creditor to be party.
§ 243. Form of judgment in action by creditor^^iuty of court.
§ 244. Form of judgment in action b}' surety.
§ 245. Form of judgment in action by joint debtor.
§ 246. Money of defendant in court — how applied.
§ 247. General provisions concerning judgments.
§ 248. Joint debtor to pay his share before judgment in his favor.
§ 237 [tB»i Action before debt matures — when allowed. Before a debt or
liability upon a contract becomes due or matures, an equitable
action, for indemnity, may be brought by a creditor against his
debtor ; by a surety against his principal ; or by one who is jointly
liable with another, for such debt or liability, against the latter —
1. If the defendant be about to depart from this State, and,
with intent to defraud his creditors, have concealed, or removed
from this State, his property, or so much thereof that the proc-
ess of court, after judgment, can not be executed.
2. If there exist against the defendant any of the grounds for
an attachment which are mentioned in subsections three, four,
five, six, seven and eight, of section one hundred and ninety-four.
(Form of judgment^ ^21^3^ 244' Action by joint debtor or surety after
debt mattiresy sees. 661^ 662.)
§ 238 [sto] Attachment or order of arrest — how obtained. In such action, if
the petition, verified by the oath of the plaintift', show the nature
and amount of the demand, and when it will mature, the court in
which the action is pending [or the clerk thereof], or any circuit
judge, or the presiding judge of the county court, may grant —
1. An order for the arrest of the defendant, if the petition also
state the facts mentioned in subsection one of section two hundred
and thirty-seven.
§ 237. (1) Issual before execution of bood. (2) Surety may maintain action against
The county judge having directed clerk his principal for indemnity before debt
to issue attachment for debt not due falls due. Bamberger v. Moayon, 91 Ky.
upon execution of proper bond, an at- 517.
tachment issued before bond was exe- § 238. Construction of section. Our-
cuted is void. Kleine v. Nie, 88 Ky. 542. backer v. Clafliin, 16 R. 436.
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TITLE VUl] ATTACHMENT OR ORDER OF ARREST. 149
2. An attachment against the property of the defendant, if the
petition also show the existence of any of the grounds specified
in subsection two of section two hundred and thirty-seven.
{Words in brackets inserted by act 1888; when two justices may
grants sec. 689.)
§ 239 [s«ii Requisites of attactuneot or order. The order of arrest, or
attachment, shall specify the sum for which it is allowed, not exceed-
ing a sum suflicient to satisfy the plaintiff's claim and the probable
costs of the action. {Forms of orders^ pages 630-633.)
§ 240 [sts] Bood to tie executed l^efore issual. Such order of arrest, or
attachment, shall not be issued by the clerk until, if it be an order
of arrest, bond be executed pursuant to section one hundred and
fifty-four; nor, if it be an order of attachment, until bond be exe-
cuted pursuant to section one hundred and ninety-eight. ( When may
issue on holiday ^ sec. 665.)
§ 241 [sts] Sections of code appiicalile. 1. The provisions of chapter one,
of title viii, subsequent to section one hundred and fifty-four,
shall, so far as applicable, regulate arrests authorized by this article.
2. The provisions of the first article of this chapter subsequent
to section one hundred and ninety-eight shall, so far as applicable,
regulate attachments authorized by this article.
§ 242. Jud|:ment tiefore debt due — costs — creditor to tie party. 1. Judg-
ment may be rendered, in an action brought pursuant to section
two hundred and thirty-seven, concerning the alleged liability of the
defendant, though it may not have matured.
2. Unless the creditor bring the action, he must be made defend-
ant, but shall not be liable for costs.
§ 243. Form of Judipnent in action by creditor — duty of court. If such action
be brought by the creditor, and judgment be rendered against the
defendant, it shall be that he pay to the plaintiff the amount of the
judgment, or, if the demand have not matured, that he pay said
§239. Statemeat of amount ia order, is sufficient. Eliene v. Nie, 88 Ky.
The order did not state the amount for 542.
which it was allowed, but stated that it § 242. Creditor is aecessary party, but
** was according to the prayer of the failure to make him a party does not
petition." The petition specified the render void attachment issued in the ac-
amount of the debt, and the prayer was tion, and defect may be cured by amend-
for judgment for the debt. Held suffl- ment. Bamberger v. Moayon, 91 Ky. 517.
cient. Bumam v. Romans, 2 Bush 191. ' § 243. Jadsment may %o for debt due at
And an order directing clerk to issue time judgment is rendered, but not due
an attachment for amount claimed in when action was instituted. Kleine v.
petition, without specifying amount, Nie, 88 Ky. 542.
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150 ATTACHMENT OR ORDER OF ARREST. [TITLE Vni
amount at the time of such maturity : and the court shall apply, in
satisfaction of the judgment, moneys of the defendant under ite con-
trol, though the demand have not matured.
§ 244. Form of judinnent in action by lorety. If such action be brought
by a surety against his principal, and judgment be rendered against
such defendant, it shall be that he pay to the creditor the amount of
the judgment ; or, if the demand have not matured, that he so pay
said amount at the time of said maturity. {See further, see. ^47.)
§ 245. Form of Judgment in action by joint debtor. K such action be
brought by one who is jointly liable with another, against the latter,
and judgment be rendered against such defendant, it shall be, that he
pay to the creditor so much of his demand as such defendant is
equitably liable for, as between him and the plaintiff; or, if the -de-
mand have not matured, that he pay said amount at the time of said
maturity. {See further ^ sees. 247 , 2^3^
§ 246. Money of defendant in court — how applied. In actions mentioned
in section two hundred and forty-four, or section two hundred and
forty-five, moneys of the defendant under control of the court shall
be applied in satisfaction of the judgment when the demand ma-
tures, or, with the creditor's consent, before it matures ; and, until so
applied, such moneys, and property of the defendant attached in the
action, shall be under the control of the court.
§ 247. General provisions concerning jad^ents. In every action brought
pursuant to section two hundred and thirty-seven —
1. A judgment against the defendant shall include a judgment
for costs in favor of the plaintiff.
2. Such judgments may be enforced as in equitable actions gen-
erally, except that executions upon judgments rendered pursuant
to section two hundred and forty-four, or section two hundred and
forty -five, shall be in favor of the plaintiff for the benefit of the
creditor, and shall be so indorsed by the clerk.
3. In rendering judgment before maturity of the demand, the
court shall make an abatement, on account of interest; and shall
make the judgment bear interest from the day of its rendition un-
til it shall be satisfied, according to the rate of such abatement.
§ 248. Joint debtor to pay his share before Jad^ent in his favor. !N'o judg-
ment shall be rendered pursuant to section two hundred and forty-
five, until the plaintiff shall have paid into court money enough to
satisfy the residue of the creditor's demand ; or shall have filed in
court the creditor's receipt therefor, or his release or assignment to
the plaintiff of his right to the demand, or to said residue.
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riTLB Vni] SPBCIFIO ATTACHMBNT8. 151
ARTICLE 3.
SPECIFIC ATTACHMENTS.
§ 249. Actions in which allowed — affidp.vit for.
§ 250. Fraudulent purchase to cancel.
§ 251. Court or judge that may grant.
§ 252. Plaintiff to execute bond — retention of property by defendant.
§ 253. Attachment not to issue until bond executed.
§ 254. Order of attachment — requisites and execution of.
§ 255. Disposition of attached property.
g 256. Officer may pursue and retake in another county.
§ 257. Defendant to give information concerning.
§ 258. Sections of Code applicable.
§ 249 [STS] Actieos ia which allowed — affidavit for. In an action to en-
force a mortgage of, or lien upon, personal property; or, for the
recovery, partition or sale of such property ; or, by a plaintiff hav-
ing a future estate or interest therein for the security of his rights,
if it satisfactorily appear, from a verified petition, or from affidavits,
or the proofe in the cause, that the plaintiff has a just claim, and that
the property is about to be sold, concealed or removed from the
State; or if the plaintiff state on oath that he has reasonable cause to
believe and does believe that, unless prevented by the court, the
property will be sold, concealed or removed from the State, an at-
tachment may be granted against the property. {How and before whom
affidavit made^ sees. 631 y 549; when by agent or attorney ^ sec. 550.)
§ 250 [sT«i Praodnleat purchase to cancel. In an action by a vendor of
property fraudulently purchased, to vacate the contract and have a
restoration of the property or compensation therefor, if the petition
show such fraudulent purchase and the amount of the plaintiff's
claim, and be verified by his oath, an attachment against the prop-
erty may be granted.
§ 251 [sT»j Court or judfe that may grant. The attachments in the eases
mentioned in sections two hundred and forty-nine and two hundred
and fifty may be granted by the court in which the action is brought,
or by the judge thereof, or any circuit judge, or the presiding judge
of the county court, upon such terms and conditions as to security,,
on the part of the plaintiff', for the damages which may be occasioned
by them, and with such directions as to the disposition to be made
of the attached property, as may be just and proper under the cir-
cumstances of each case. ( When two justices may grant, sec. 689.)
1 2#. Affidavit is lofficient that follows states amount of debt, it is not necessary
the language of this section in stating to repeat amount that plaintiffs ought to
grounds of attachment, and if petition recover. Bell v. Mansfield, 12 R. 89.
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152 SPECIFIC ATTACHMENTS. [TITLE VHI
§ 252 [ST6] Plaiotiff to execute boad — reteatkNi of property by defendant. In
every case, tlie plaintift shall be required to give bond, with surety,
for the damages to the defendant, in an adequate sum to be specified in
the order granting the attachment ; and, if proper, the court or judge
may direct that the defendant, or person in possession of the attached
property, shall be permitted to retain it, upon giving such bond with
surety, and for such sum, as the court or judge may prescribe.
§ 253 [211] Attachment not to issue until bond executed. Xo order of attach-
ment shall be issued by the clerk until the bond on the part of the
plaintiff, required by the order of the court or judge, be executed in his
oflice by one or more suiBcient sureties of plaintiff. ( When may issue on
holiday y sec. 665 ; sureties may be sivorny qualifications ofy sees. 683 j 684-)
§ 254 [STS] Order of attachment — requisites and execution of. The order of
attachment shall describe the specific property against which it is
issued, and the direction of the court or judge, as to the disposition to
be made of the attached property, shall be indorsed upon it. It shall
be directed, executed and returned, as other orders of attachment.
§ 255 [219] Disposition of attached property. The sheriff shall make such
disposition of the attached property as may be directed by the court
or judge ; or, if there be no direction upon the subject, he shall safely
keep the property subject to the order of the court.
§ 256 issi] Officer may pursue and retalce in another county. If, after an
order of attachment against specific property has been placed in the
hands of the sheriff, such property be removed from the county, the
sheriff may pursue and attach it in another county within twenty-
four hours after such removal.
§ 257 [282] Defendant to ^ive information concerning. If it appear from
the return of the sheriff', or the affidavit of the plaintiff, that any
specific property, against which an order of attachment is issued, has
been concealed or removed by the defendant, the court may require
him to attend and be examined on oath respecting such property,
and may enforce its orders in this respect as in cases of contempt.
§ 258 [«••. 284] Sections of Code applicable. The provisions of the first
article of this chapter, not inconsistent with, nor inapplicable to, the
foregoing sections of this article, shall regulate the proceedings in
cases of attachments against specific property.
§ 252. Bond— Ihibility on. In an action that could be subjected, to the extent
to enforce a lien on a boat, the defendant only of the value of that equity could
executed a bond for the forthcoming of the obligors be held liable. Halbert v.
the property, and it appearing that the McCuUoch, 3 Met. 456 ; and see McKee
boat was mortgaged, and that the equity v. Pope, 18 B. M. 548.
of redemption in the property was all
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TITLE Vin] DISCHARGE AND REINSTATEMENT OF ATTACHMENTS. 153
ARTICLE 4.
DISCHAROB AND REINSTATEMENT OF ATTACHMENTS.
§ 359. Time when sustained or discharged.
§ 260. Judgment for defendant discharges.
§ 261. Judgment for plaintiff sustains unless controverted.
§ 262. Property applied to pay judgment if sustained.
§ 263. Affidavit controverting grounds — how regarded — time to file.
§ 264. Trial of attachment— evidence.
§ 265. Motion to discharge — notice.
% 266. Order discharging or sustaining — appeal.
§ 267. Reinstatement — motion to discharge.
§ 268. Motion to discharge — practice — amendment of affidavit.
§ 269. Time allowed to have reinstated.
§ 270. Appellate judge may reinstate — effect.
§ 259 [sssj Time when snstaiaed or discharfed. An attachment obtained
at the commencement of an action shall be sustained or discharged
when judgment is rendered in the action, unless, for sufficient cause,
the court extend the time of deciding upon it. An attachment ob-
tained after the commencement of an action shall not be sustained
until the defendant has had the time for controverting it provided in
this chapter.
§260 [sst] Jndgmeat for defendant discharges. If judgment be rendered
in favor of the defendant the attachment shall be discharged. {Effect
of sec. ^28.)
§ 261 [ssTj Jnd^ent for plaintiff sustains unless controverted. If judg-
ment be rendered in favor of the plaintiff, and no answer nor affida-
vit of the defendant be filed, denying the statements of the affidavit
upon which the attachment was issued, nor motion made to dis-
charge it, the court shall sustain the attachment.
§ 262 [stB] Property applied to pay Judipnent if sustained. Upon an attach-
ment being sustained, the property attached, or its proceeds, or the
securities taken upon the attachment, shall, by appropriate orders,
be applied in satisfaction of the judgment. {Order in which applied^
sec. ^29)
§ 263 [S89] Affidavit controverting grounds — how regarded — ^time to file. The
defendant may file his affidavit denying all or any of the material
statements of the affidavit on which the attachment is issued ; and,
§ 259. Order discontinoiof action as to a § 263. (1) Fllinf affidavit enters appear-
garnishee did not have the effect of dis- ancc. Filing an affidavit controverting
charging levy of attachment on land, the grounds of the attachment enters the
which was sought to be subjected, appearance of the defendant. The words
although the land had been purchased '* have no other effect " were introduced
by garnishee. Hand v. Fritsch, 7R. 439. merely for the purpose of preventing the
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154
DISCHARGE AND REINSTATKMENT OP ATTACHMENTS. [XITLB VIII
thereupon, the attachment shall be considered as controverted, and
the affidavits of the plaintiff and defendant shall be regarded as the
pleadings concerning the attachment, and have no other effect. If the
attachment was obtained at the commencement of the action, the
defendant may file his affidavit at such time after the levy of the
attachment as is given by this Code for filing his defense after the
service of the summons — which period may be extended by the court
for sufficient cause. {When defense must befiled^ sec. 102^
§ 264 [«»o] Trial of attachment — evidence. The trial of the attachment
shall be by the court ; and the witnesses shall be orally examined, ex-
cept in cases wherein depositions might be read in an ordinary
action. {When depositions may be ready sec. 554-; person on whose affi-
davit attachment issued may be examined^ sec. 54S.)
§ 265 [t9i] Motion to discliarge — notice. At any time before the attach-
ment is sustained the defendant, upon reasonable notice to the
plaintiff or his attorney, may move for its discharge ; and the hearing
of such motion may be postponed by the court, upon sufficient cause,
fVom time to time; and upon the hearing, if the court be of opinion
that the attachment was obtained without sufficient cause, or that the
grounds of the attachment, being controverted, are not sustained, it
shall be discharged.
§ 266 [S92] Order discliarfin^ or sustaining — appeal. An order for the
discharge of an attachment, made at or after the rendition of judg-
affidavit from being regarded as evidence.
Duncan v. Wickliflfe, 4 Met. 117.
(2) Creditors of defendant can contest
attachment Creditors of a defendant,
claiming under a deed of assignment
made by him for the benefit of his
creditors, can controvert the grounds of
an attachment levied on his property a
short while before the deed of assign-
ment was made. Bamberger v. Halberg,
78 Ky. 376 ; and see sec. 29 and notes
thereto as to the rights of claimants ;
and Peters v. Conway, 4 Bush 565.
(3) Pleadins. The defendant can con-
trovert in his answer the grounds of
attachment. Talbot v. Pierce, 14 B. M.
195; sec. 261.
(4) If the defendant appears and fails
to contest the grounds of attachment,
the court will regard it as valid. Spald-
ing V. SImms, 4 Met. 285.
(5) Rights of attaching creditors. Credit-
ors attaching mortgaged property can
make all the defenses against the mort-
gagee the mortgagor could make, so far
as may be necessary for the protection of
their attachment liens. Pearce v. Hall,
12 Bush 209.
§ 264. Evidence on trIaL Affidavits can
not be read on the trial of attachments.
No other proof than oral testimony or
depositions is admissible. Newton v.
West, 3 Met. 24.
§ 265. Conrt may discharge at any time.
Although the court refused to discharge
an attachment on a motion made for that
purpose, it may, without additional evi-
dence, discharge it on final hearing.
Talbot V. Pierce, 14 B. M. 195; 17 B. M.
536. And it may, after the trial is com-
menced and part of the evidence given to
the jury, entertain a motion to, and dis-
charge the attachment. Taylor v. Smith,
17B.M. 536.
§ 266. (1) Appeal— when ailowed. A pre-
liminary order sustaining an attachment
is not a final order, and can not be
appealed from (Hanson v. Bowyer, 4 Met.
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TITLE Vm] DISCHAKGB AND RBINSTATBMBNT OP ATTACHMENTS. 15&
ment in the action, shall be final ; and can not be reinstated as is
authorized by section two hundred and seventy ; but shall be the sub-
ject of appeal, if the amount in controversy be such as to authorize
an appeal. An order sustaining an attachment shall, in like manner,
on the rendition of judgment in the action, be the subject of appeal.
§ 267 [S98] Reiiistateffleiit — iiotioa to dischaixe. The reinstatement of
attachments, as provided in section two hundred and seventy, shall
only be binding on the inferior court until judgment; and when
judgment is rendered in the action the inferior court shall make a
disposition of the motion to discharge — which shall,- in like manner,
be final.
§ 268 [S941 Motion to discharge — practice — ameadmeat of affidavit 1. The
defendant, on reasonable notice to the plaintiff, may, at any time be-
fore the term next after the levy of the attachment, move the judge
of the court, in vacation, to discharge the attachment, on the ground
of its having been issued contrary to the provisions of article one of
this chapter; and the judge, on an inspection of the papers in the
action, or of authenticated copies of them, shall have the same power
of discharging the attachment, by his written order, filed by the
clerk, as he would have in court ; and shall have like power to per-
mit amendments by the plaintift.
2. A plaintiff may, by an amended affidavit, conforming to sec-
tion one hundred and ninety-six, cure a defect in the affidavit upon
which he obtained an attachment ; or may state aground of attach-
ment not mentioned in his first affidavit, whether it may have ex-
lOS); nor can an appeal be taken from a § 26S. (1) Amendment of petition. De-
preliminary order discharging an attach- fective petition may be cured by an
ment. Leet v. Lockett, 4 Met. 55; Overby amendment which does not state a new
V. Gay, 17 B. M. 144 ; see sees. 269, 270. cause of action, and the amendment will
(2) Practice — Appeal. A motion for a relate back to the filing of petition and
new trial is not necessary in order to give plaintiff priority over another lien
bring a judgment sustaining an attach- created after ijetition is filed and before
ment before the Appellate Court; nor is amendment ; the provision as to amend-
It necessary to state separately the law ment of affidavit for attachment does
and the facts. Francis v. Burnett, 84 not apply to the petition. Bamberger v.
Ky. 24. Moayon, 91 Ky. 517.
(3) The defendant may appeal from an (2) Amendment of affidavit for attach-
order sustaining the attachment, and not ment does not relate back to original
from the Judgment for the debt. Such affidavit or give plaintiff priority over
appeal will not prevent the plaintiff from creditors who have obtained attachments
collecting by execution his judgment, before amendment; 91 Ky. 517; it is
but will stay a sale of the attached prop- good as against other attaching creditors
erty if a supersedeas be executed. Haw- only from date of filing. Bell v. Hall, 2
kins V. Baldauf, 10 Bush 624. Duv. 288; Peters v. Conway, 4 Bush
§ 267. See notes to sec. 260. 565.
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156 INJUNCTION — WHBN AND HOW OBTAINED. [tITLB VIH
isted when he filed the first affidavit, or may have arisen after-
ward ; and may thus acquire a lien upon the attached property,
if the proceedings conform to law in other respects ; but such lien
shall not affect a bona fide right to, or lien previously acquired
upon, the property, by attachment or otherwise.
§ 269 [S9»3 Time allowed to have reinstated. A plaintiff who desires a
reinstatement of an attachment may have an entry made upon the
record, of leave to apply therefor within a reasonable time, not
exceeding twenty days ; whereupon, the order of discharge shall be
made, to take effect at the end of the period so limited, unless the
attachment be reinstated in the meantime.
§ 270 [>••] Appellate Jnd^e may reinstate — effect. A judge of the Court of
Appeals, if the plaintiff have secured the right to apply for the
reinstatement of an attachment, may, upon an inspection of a copy
of the record, including the evidence read upon the motion to dis-
charge, reinstate the attachment ; and, if the order of reinstatement
be filed in the clerk's office of the court in which the action is pend-
ing, within the time limited as provided in section two hundred and
sixty-nine, the execution of the order of attachment shall proceed ;
otherwise, it shall stand discharged, and restitution shall be made of
any property taken under it. {See further^ sees. 266 ^ 267.)
CHAPTER IV.
INJUNCTION.
Article 1. When and how obtained, 271.
2. Dissolution and reinstatement of, 289.
ARTICLE 1.
WHEN AND HOW OBTAINED.
§ 271. Injunction defined — mandatory injunction.
§ 272. Temporary injunction — cause for.
§ 273. Officers who may fi^rant.
§ 274. Granted before judgment — court may control.
§ 275. Defendant who has answered to be notified.
§ 27C. Notice of application for — when not required.
§ 277. Affidavits may be read on application for.
§ 278. Bond to obtain — requisites of.
§ 279. Bond to be executed before issual.
§ 280. Sureties in bond to be accepted by clerk.
§ 281. Order of injunction — requisites and service of.
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TITLB Vni] INJUNCTION — ^WHBN AND HOW OBTAINED.
157
§ 283. Service of order when unnecessary — party when bound.
g 283. When binding on defendant.
§ 284. Judgments that can not be enjoined.
g 285. Judgment to be enjoined in court rendering.
§ 286. Disobedience of — how punished.
g 287. Affidavits read' on application to be filed.
g 288. Surety in bond — additional may be required.
§ 271. lojaactioa deflaed — mandatory iajnactloo. An injunction may be
the final judgment in an action, or may be allowed as a provisional
remedy, and, if so allowed, it shall be by order. When any manda-
tory injunction shall be granted, the order or judgment may aflirma-
tively direct the party enjoined to do the act or thing required to be
done. The writ of injunction is abolished. (Sec. as amended by act
1894.)
§ 272. Temporary injonctioii^aiise for. If it appear from the petition
that the plaintiff is entitled to the relief demanded, and such relief,
or any part thereof, consists in restraining the commission or continu-
ance of an act which would produce great or irreparable injury to the
plaintiff; or if, during the litigation, it appear that the defendant is
doing, or threatens or is about to do, or is procuring or suffering to
§271. (1) Effect of iojanction. TheCivU
Ck>de has not diminished or changed the
force or effect of an injunction. When is-
sued by proper authority, it must be
obeyed by all persons to whom it is
directed. Keith v. Wilson, 3 Met. 202.
(2) QroBfldf opoo which It may be iisoed.
The only grounds upon which courts of
equity may grant injunctions are not
specified in the Code. The provisions of
the Ck)de upon this subject were not
intended to take away other well-recog-
nized grounds of equity jurisdiction
which may be found necessary for the
full and proper administration of justice.
Gates V. Barrett, 79 Ky. 295; and see
notes to sec. 272.
(3) Ifljiuctioa ~ In what court to be
oMtlaeiL An injunction is merely inci-
dental to the action in which it is sought,
and can only be obtained in the court in
which the action is pending. Moore v.
Sheppard, 1 Met. 97.
(4) Jnrisdlctioii to gnut The Butler
Circuit Court has no jurisdiction to en-
join the use of a ferry privilege granted
by the Ohio County Court. Stahl v.
Brown, 84 Ky. 325.
(5) Maodaiiias not stoyed. A railroad
company obtained a writ of mandamus
to compel the county judge to issue cer-
tain bonds. The taxpayers could not
enjoin the judge from complying with
the writ. C. & O. R R, Co. v. Washing-
ton Co., 10 Bush 564.
(6) Verdict— effect of may be preserved
by injunction ; as where a party sued to
recover damages for obstructing passway
and to enjoin future obstructions, and
after a jury returned a verdict determin-
ing his right to passway, he filed amended
petition setting up verdict, and case being
transferred to equity, injunction was
granted. Hunt v. Kemper, 10 R. 593.
§ 272. (1) Diftribntioa of property under
a will may be enjoined until an action
to set aside the will can be tried.
Sanders v. Sanders, 17 B. M. 10; and see
Ky. Stat., sec. 4851.
(2) Ferry privilege is a franchise and the
right to its enjoyment may be protected
from disturbance by injunction. Haze-
lip V. Lindsey, 93 Ky. 14.
(3) Injury to property constantly recur-
ring may be restrained by injunction.
Greenup Co.v. M.& B. 8. R. R., 88 Ky. 659.
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158
INJUNCTION — WHEN AND HOW OBTAINED.
[TITLE VIII
be done, an act, in violation of the plaintift'^s rights, respecting the
subject of the action and tending to render the judgment ineftectual,
a temporary injunction may be granted to restrain such act. It may
also be granted in any case in which it is specially authorized by
statute. {May be granted in action to settle estates , sec. 436; in
forcible entry and detainer ^ sec. 4S7; in proceedings to stay and vacate
judgments^ sees. 378^ 623; to quash execiUion^ sec. 406; as to judgments^
sees. 284, ^86).
(4) lllefal tax or assessmeat The right
to have an injunction to restrain the col-
lection of an illegal tax is unquestioned.
Gates V. Barrett. 79 Ky. 2ft5; Allison v. L.
& H. R. R. Co., 9 Bush 247; L. & N. R.
R. Co. V. Warren Co., 5 Bush 243; and an
illegal assessment final in its charactec
may be enjoined. Baldwin v. Shine, 84
Ky. 502.
(5) Nalsaoce. As to restraining and
suppressing a nuisance, ^e Hahn v.
Thornberry, 7 Bush 403; Dumesnil v.
Dupont, 18 B. M. 800; Louisville Coffin
Co. V. Warren, 78 Ky. 400; Seifried v.
Hays, 81 Ky. 377; and injunction will lie
to prevent erection of house that will do
great injury. Miley v. A'Hearn, 13 R.
834; but injunction against a threatened
nuisance will not be granted when the
thing complained of is not per ae a nui-
sance. Pfingst v. Senn, 94 Ky. 556.
(6) Prosectttioni oiider Invalid ordioaoce.
Numerous warrants having been issued
against the defendant, charging him with
violating a city ordinance in holding pos-
session of certain property. Held that
the defendant who claimed the property
had a right to enjoin the city from pros-
ecuting him until the right to the prop-
erty could be determined ; the amount
of the fine for violating the ordinance not
being sufficient to authorize an appeal, an
in j unction was the only remedy. Shinkle
v. City of Cov., 83 Ky. 420; and see
Brown v. Trustees, 11 Bush 435 ; and
prosecutions under a void ordinance may
be enjoined. City of Newport v. Bridge
Co., 90 Ky. 193 ; South Cov. R. v. Berry,
93 Ky. 43.
(7) Remedy at law. If a party has a
good defense at law and fails to present
it, or it is disallowed by the verdict, he
can not obtain relief by injunction. Tal-
bot V. Bank, 2 J. J. M. 548 ; Harrison v.
Lee, 7 J. J. M. 171 ; McCoun v. Macklin, 7
Bush 308; Walker v. Thomas, 88 Ky.
486 ; and see sec. 17.
(8) Restraint of trade. Violation of valid
contract concerning may be enjoined.
Sutton V. Head, 86 Ky. 156.
(9) Threateaed breach of coatract may
under some circumstances be restrained
by injunction. Duncan v. Central Pass.
R. R., 85 Ky. 525.
(10) Title to property— to protect A
purchased from B a tract of land in Il-
linois, and paid him the purchase price,
accepting a deed. The acknowledgment
of the deed was so defective as not to
pass the title against purchasers from B,
and B being insolvent and about to dis-
pose of the property, A could enjoin him
from so doing. Frank v. Peyton, 82 Ky.
150.
(11) Trespass. An injunction will lie
to ** restrain a trespass if the threatened
trespass will destroy the very substance
of the estate * in the character in which
it has been enjoyed,' or if so permanent
and continuous that it can never be said
to be complete so that the injury can be
computed; or if the injury can not be
estimated in money ; or if so vexatlously
persisted in that a multiplicity of suits
must result ; or if committed by one who
is insolvent and against whom a verdict
will be valueless." But to maintain an
injunction for trespass the plaintiff must
be in the actual possession of the land.
Hillman v. Hurley, 82 Ky. 626 ; see fur-
ther as to enjoining trespasses, Mussel-
man V. Marquis, 1 Bush 463; Peak v.
Hayden, 3 Bush 125 ; Ellis v. Wren, 84
Ky. 254; O'Hara v. Johns, 7 R. 296;
Preston v. Preston, 85 Ky. 16.
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TITLE VIU] INJUNCTION — WHBN AND HOW OBTAINED. 159
§273. Officers who may grant The injunction may be granted at
the commencement of the action, or at any time before judgment by
the court, or by any circuit judge, or by the clerk of the court, or
the county judge if the judge of the court be absent from the county,
or by two justices of the peace if the judge and the clefrk of the
court and the county judge be absent from the county. No injunc-
tion shall be granted by any of the foregoing officers, unless it
appear from the affidavit of the party applying therefor that it has
n6t been refused by the court; nor shall such injunction be granted
by a clerk or county judge or justice unless it appear from such affi-
davit that it has not been refused by^ the court or any circuit judge.
No injunction or temporary restraining order shall be granted until
after the petition seeking the injunction shall be filed. No injunc-
tion or temporary restraining order shall be granted by any circuit
or other judge of similar jurisdiction in any action pending outside
of the circuit or county wherein such judge shall preside, unless it
shall appear from the affidavit of the plaintiff that there is no cir-
cuit or other judge of similar jurisdiction present at the time in the
county where the action is pending. {Sec. as amended by act 1894.)
§ 274 [SM] Granted before Jadginent— court may control. Injunctions granted
before judgment shall be subject to the further order of the court.
§ 275 [SM] Defendant who has answered to be notified. An injunction shall
not be granted against a defendajit who has answered, unless he have
had notice of the application therefor.
§ 27i [M6] Notice of application for — when not required. An injunction shall
be granted only upon reasonable notice, in writing, to the party
sought to be enjoined, of the time and place of the application
therefor, and of the court or officer to whom the application is to be
made. Where the court or officer to whom the application for an
injunction is made shall be satisfied by the facts set forth in the affi-
davit of the applicant, or by other evidence, that irreparable injury
will result to the applicant from the delay of giving notice, the
court or officer may enter a temporary order restraining the act or
acts sought to be enjoined, or it may be mandatory in its nature, if
the case so require, except that no mandatory restraining order shall
be entered by any clerk, county judge or two justices in any case.
Such restraining order shall in no case be granted until the applicant
shaH have given bond, as prescribed by subsection three of section
(12) Waste may be restrained. Ky. tlon is not finaL Dulaney v. Murphy, 13
Stat., 860. 2336. R. 688.
274. Order refasi^ temporary in June- ^
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160 INJUNCTION — ^WHEN AND HOW OBTAINED. [TITLE VUI
two hundred and seventy-eight of the Civil Code, and a copy of the
order shall be forthwith served upon the party or parties sought to
be enjoined. The restraining order, if made by the court, or any
circuit or other judge of similar jurisdiction, shall set forth a reason-
able placfi and time, not to exceed ten days from the day upon which
the order is made, at which the applicant shall move the court or
judge to grant the injunction; and the order shall remain in force
until the motion is heard and determined, but not for a greater
length of time than ten days after the day fixed in the order for
hearing the application. Such motion for injunction shall be tried
as provided in this Code for the trial of applications for injunctions
of which notice has been given in the first instance. The restraining
order, if made by the clerk of the court, the county judge or two
justices of the peace, shall remain in force until set aside or modi-
fied, or until the injunction is granted as provided in section two
hundred and ninety of the Civil Code as amended by this act. {Sec.
as amended by act 189^)
§ 277 [S06] Affidavit may be read on application for. On the hearing of an
application for an injunction, of which notice has been given, each
party may read affidavits. {How and before whom affidavit made^ sees.
661, 649.)
§ 278 [SOT] Bond to obtain — requisites of. 1. If an injunction be granted to
stay proceedings upon a levy made under an execution, and the
party applying for the injunction desire to discharge the levy, he
shall execute a bond to the effect that he will satisfy the execution
to the extent to which the injunction may be dissolved; not exceeding
the value of the property released ; and upon the execution of such
bond, and the issuing of the injunction, the levy shall be discharged.
§27S. (1) lojanction bond — ezecotioo release the levy and discharge the lien
levy. An injunction bond to the effect created thereby, and it is the duty of the
that if the injunction is dissolved, the officer handling the execution to restore
plaintiff will have the property levied the property levied on to the defendant,
on, or its value forthcoming to satisfy Keith v. Wilson, 3 Met. 202; Lockridge
the order of the court, does not release v. Biggerstaflf, 2 Duv. 281.
the execution levy. A bond to satisfy (3) When the levy of an execution
the execution in the event the injunction against a debtor who has ample property
is dissolved is the bond that discharges to satisfy it is enjoined and, pending in-
the levy, and the remedy in such a case is junction, property is so diverted that
on the bond, and not by the sale of the debt can not be made, sureties on bond
property levied on. Mallory v. Dauber, are liable for amount of execution.
83 Ky. 289. Moore v. Wilson, 1 R. 351.
(2) Where an execution has been stayed (4) In action on bond it is immaterial
by injunction and bond executed as pro- whether the property released from levy
vided in subsec. 1, the effect of it is to by execution of bond was subject to the
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TITLE VIIl] INJUNCTION — WHEN AND HOW OBTAINED. 161
If he do not desire to release the levy, he may execute a bond to the
effect that, upon a dissolution of the injunction, in whole or in part,
he will have the property, or its value, forthcoming and subject to
the order of the court ; and, upon the execution of such bond, and
the issuing of the injunction, the property levied on shall be delivered
to him. For the purpose of ascertaining the value of the property,
it shall be appraised as directed in section two hundred and fifteen.
2. K such injunction extend further than the stay of proceed-
ings upon the levy, the party shall give such additional bond as
the court, judge or officer granting the iiyunction may direct.
3. In all other cases, the court, judge or officer granting the
injunction shall, in the order granting it, fix the amount of the
bond to be given, and may prescribe its terms. If the terms of
the bond be not so prescribed, it shall be to the effect that the
party giving it will pay to the party enjoined such damages as he
may sustain, if it be finally decided that the injunction ought not
to have been granted.
4. If the injunction be to stay proceedings upon a judgment,
the amount of the bond shall be sufficient to cover, with other
damages, the sum of money for which judgment was rendered,
with five years' interest thereon, and the rent, hire or value of
the use, for two years, of property for which judgment was
given; and, in case of personal property, its value also. {Form
of bondj page 6S6 ; if defective^ new one may be executed, sec. 682,)
§ 279 ISM] Bold fliMt be extcntcd before order issoes. The order of injunc-
tion shall not be issued by the clerk until a bond, as is required by
section two hundred and seventy-eight, with good surety of the
party obtaining the injunction, shall have been executed in his office.
(Sureties may be sworn^ qualifications of sees. 683y 684- ; when may
issue on holiday, sec. 665)
execution or whether plaintiff has lost so if final judgment dissolving injunc*
his debt by reason of the injunction. tion is rendered either in State court or
Biggan v. Crain, 86 Ky. 249. United States court to which action has
I 279. (1) Actioa oa bond— damagts re- been transferred. Alexander v. Gish, 88
cevcnkit* An action can not be main- Ky. 13.
tamed upon an injunction bond until (3) In all cases except where proceed-
there has been a final judgment in the ings upon a judgment have been stayed,
case in which the bond is given. Wood the remedy is on the injunction bond,
V. Layoock, 3 Met. 198, and no assessment of damages by the
(2) The dismissal of the petition is a court upon the dissolution of the injunc-
judicial deterjnination that the injunc- * tion is necessary. Whena judgment has
tion ought not to have been granted, and been stayed, the judge is empowered to
a cause of action at once arises upon the assess the damages. Logsden v. Willis,
bond. Pugh v. White, 78 Ky. 210 ; and 14 Bush 183; Rankin v. Estes, 13 Bush 428.
(11)
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162 INJUNCTION — WHEN AND HOW OBTAINED. [TITLE VIH
§ 280 [S09] Sureties ia boad to be accepted by clerk. Sureties in injunction
bonds shall be accepted by the clerk under the same responsibilities
as in other cases of sureties accepted by him.
§ 281 isio] Order of iajnactioa — requisites and service of. The order of
injunction shall be addressed to the party enjoined; shall state the
injunction ; and, if its effect be to discharge a levy under an execution,
it shall so state ; and shall be dated and signed by the clerk. If it
be issued at the commencement of an action, it shall be indorsed
upon the summons, and a copy thereof shall be delivered to the
sheriff. If it be issued during the litigation, it shall be delivered to
him, with as many copies thereof as there are parties enjoined. The
sheriff shall forthwith serve it by delivering a copy to each party
enjoined, and make return thereof on the order. (Form of order ^
page 6S7 ; what officers may execute^ sec. 667; when may execute on
holiday J sec. 665 ; must indorse time of receptiony sec. 674-)
§ 282 [SIX] Service of order whea nnaecessary — party when bound. If notice
of the application for an injunction have been given to the party
sought to be enjoined, it shall not be necessary to serve the order
upon him ; he is bound by the injunction as soon as the bond re-
quired of the adverse party is executed.
§ 283 i*^^] Wben binding on defendant An injunction binds the party
from the time he is informed thereof. {See sec. 282.)
% 284 [S18] Jndinnent that can not be enjoined. No injunction shall be
granted to stay proceedings upon a judgment of a justice of the
peace, or of a county court, if the value of the matter in dispute do
not exceed twenty -five dollars.
§ 285 [814] Judgment to be enjoined in court rendering. An injunction to
stay proceedings on a judgment shall not be granted, in an action
(4) In an action upon an injunction relief if sustained, attorney fees can not
bond the plaintiff can only recover such be recovered. New Nat. T. P. CJo. v.
damages as resulted to him from the Dulaney, 86 Ky. 516.
operation of the injunction; he can not (6) Namerons parties. One or more may.
recover the costs and expense incurred sue upon bond for benefit of all. 88Ky. 13.
in defending the action in which the § 283. Parties Inrand by inlanction. In-
injunction was obtained and which were junctions do not interfere with the rights
not occasioned by the injunction. Bur- of third parties who have acquired them
gen V. Sharer, 14 B. M. 497. in good faith, and who are not parties or
(5) Attorney fees. Where the injunction privies to the proceedings. They must
is merely in aid of the relief sought, or be respected while in force, although
is relied on to secure the relief when ob- improperly granted, but bind only parties
tained or to prevent the commission of and privies. Roberts v. Davidson, 83
an act that would result in injury before Ky. 279.
termination of action, attorney fees may § 285. (1) Judsment— in what court to
be recovered, but where the injunction is be enjoined. An injunction to stay pro-
the relief sought, and in fact gives the ceedings upon a judgment can only be
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TTTLB Vin] INJUNCTION — WHEN AND HOW OBTAINED.
163
brought by the party seeking the injunction, in any other court than
that in which the judgment was rendered. Nor shall such injunction
be granted, unless the party applying therefor make affidavit that no
injunction has been previously granted to stay the proceedings on
8uch judgment.
§ 286. Disobedience of — how ponished. Disobedience of an injunction
maybe punished by the court, or by the judge thereof, or any circuit
judge in vacation, as a contempt. Where the case has been ap-
pealed such disobedience may be punished by the Court of Appeals,
or by any judge thereof during a vacation, recess or adjournment of
said court. Upon production of eiddence by affidavit of the breach
of an injunction, the court, or any judge thereof during vacation,
granted in the court rendering it ; this
rule applies to justice's as well as to
circuit courts, and a judgment in a
justice's court must be enjoined in that
court, although by reason of accrued
interest it exceeds the jurisdiction of
the court. Davis v. Davis, 10 Bush 274.
(2) The circuit court has no jurisdic-
tion to enjoin the sale of property under
an execution upon a judgment rendered
in a justice's court. C. & O. R. R. Co.
V. Reasor, 84 Ky. 369 ; or quarterly court,
McConnell v. Rowe, 8 R. 343.
(3) Where a judgment upon a note
given for land is rendered in the quarterly
court, a petition for an injunction must
be filed in that court ; the case can then
be transferred to the circuit court if the
title to the land is involved. Kelly v.
Kelly, 2 Duv. 363.
(4) The provision that an injunction
to stay proceedings on a judgment must
be brought in the court in which the
judgment was rendered applies not only
to the party against whom the judgment
was rendered, but to all who seek to
enjoin it. Mallory v. Dauber, 83 Ky.
239.
(5) When an execution issues on a
judgment in the quarterly court and is
returned **no property found," and an
execution is then obtained from the cir-
cuit court on a transcript filed in that
office, an action to enjoin the collection
of the execution must be filed in the
quarterly court. Neeters v. Clements,
12 Bush 359.
(6) The Louisville Chancery Court has
no authority to grant an injunction to
stay proceedings on a judgment of the
Jefferson Court of Common Pleas. Mal-
lory v. Dauber, 83 Ky. 239.
(7) Judgment rendered on process exe-
cuted by the sheriff in an action in which
he is plaintiff is a nullity, and may be
enjoined. Knott v. Jarboe, 1 Met. 504.
(8) On enjoining a judgment in favor
of a non-resident it is not necessary to
execute the bond required by sec. 410.
Fellows V. Day, 5 Bush 666.
(9) A judgment can not be enjoined,
although the debt upon which it was
rendered may have been paid before the
rendition of the judgment; payment is a
good legal defense and should have been
made to the action on the note. Lillard
v: Turner, 16 B. M. 374.
(10) See section 17 and notes thereto,
and McCown v. Macklin, 7 Bush 308.
(11) Void Jadsment may be resisted in
any court in which it is attempted to be
enforced, and not merely in court which
rendered it. Stevens v. Deering, 10 R.
393 ; Spencer v. Parsons, 89 Ky. 577.
§286. (1) Disobedience of injniiction.
Violation of an injunction pending an
appeal from judgment perpetuating in-
junction is a contempt of the Appellate
court and punishable. K. & I. Bridge
Co. V. Krieger, 91 Ky. 625.
(2) A common carrier can not excuse
its violation of an injunction upon the
ground that its duty to the public de-
manded such violation. 91 Ky. 625.
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164 DISSOLUTION AND REINSTATEMENT OF INJUNCTION. [TITLE VIII
may proceed by rule and attachment against the party committing
the breach,, who may introduce like evidence in his behalf. Should
the party be held to be in contempt, unless he purge the contempt,
the judge in vacation may commit him to jail until the sitting of
the court, or take a bond with security for his appearance to answer
for the contempt at the next term of the court, and, in the mean-
time, to obey the injunction. {Sec. as amended by act 1894^)
§ 287 [SIT] Affidavits read oo applicatioo, to ht filed. Affidavits read upon
an application for an injunction shall be filed with the papers of the
case.
§ 288 [Sit] Snrety in iMmd — additional nay be required. A party enjoined
may, at any time before judgment, after reasonable notice to the
adverse party, move the court for additional security ; and, if it
appear on such motion that the surety in the injunction bond has
died or removed from this State, or is insufficient, the court may vacate
the order of injunction, unless in a reasonable time sufficient security
is given.
ARTICLE 2.
DISSOLUTION AND REINSTATEMENT OF.
% 289. T%is aecHon was repealed hy act 1894.
§ 200. Motion to dissolve or fiKxlify.
§ 291. Motion to dissolve or mo<lify after answer.
§ 292. Postponement of motion — grounds for.
§ 293. Disposition of motion by the court.
§ 294. Only one motion to dissolve or modify allowed.
§ 295. Assessment of damages on dissolution.
§ 296. Time allowed for reinstatement.
§ 297. Appellate judge may dissolve, modify or reinstate.
§ 28f. This section was repealed by act of 1894^
§ 2fO. Motion to dissolve or modify — notice — evidence. A motion to dis-
solve or modify an injunction, or to set aside or modify a restraining
order, granted by the clerk of the court, the county judge or two
justices of the peace, may be made before the court, or any circuit or
other judge of similar jurisdiction, who is competent to grant an
injunction in the case under section two hundred and seventy -three of
the Civil Code, at any time after reasonable notice, in writing, to the
plaintiff or applicant for the injunction or restraining order of the
time and place of the motion and of the judge before whom it is to
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TITLE Vin] BI880LUTI0K AND aBINSTATBMSNT OF INJUNCTION. 165
be made. Upon the hearing of such motion, either party may read
affidavits, and the court or judge shall, within ten days from the
hearing, sustain or overrule the motion to dissolve or modify the
injunction, or shall set aside or modify the restraining order, or grant
an injunction in lieu of the same, as the case may require, and shall
try either of such motions as if it were an application for an injunc-
tion de Tkovo. The order of the judge overruling the motion to dis-
solve or modify an injunction, or dissolving or modifying an injunc-
tion ; or setting aside or modifying a restraining order, or granting
an ii\j unction, with the notice, shall be returned to the office of the
clerk of the court, and the order obeyed as if made by the court.
{Sec. as amended by act 1894,.)
§ 2f 1 [tsi] Motioo to dissolve or oMMlIfy alter answer. After answer filed by
the party enjoined, he may give notice to the plaintifiT of a motion
to be made to the court, in not less than ten days thereafter, upon
the whole case, to dissolve or modify the injunction. Upon such
motion, each party may read depositions and other competent evi-
dence in writing. The court shall not be bound to take the answer
as true. {Person on whose affidavit injunction granted may be ex-
amined^ sec. 648.)
§ 292 [tts] Postppoeiaeiit of motion — gromids for. The motion, upon the
whole case, to dissolve or modify the injunction, may be postponed,
on the application of either party, to a subsequent day, or to the next
term, if the court be satisfied that, under the circumstances of the
case, the delay is proper. K delay be asked in order to obtain the
testimony of a witness, it must appear by affidavit what facts the
witness is expected to prove, that the affiant believes his testimony
will be true, and that it could not have been obtained by due diligence.
§ 2f3 [SIS] Disposition of motion hy court. After hearing the motion,
the court or judge shall overrule it, or dissolve or modify the injunc-
tion, according to the right of the case.
1 291. (1) Neticc of motion to dissolve an injunction on motion is not final, and
injunction made during regular term of can not be appealed from. The remedy
court is not necessary. Williams v. is to apply to have it reinstated, as pro-
Cooper, U R. 284. vided in sees. 296, 297. Rodman v. For-
(2) PreiiainafT order ditsoWiiif. When line, 2 Met. 325.
a motion is made, after answer is filed, § 293. (1) Appeal with Mpersedeai from
to dissolve an injunction on the whole judgment perpetuating an injunction
case, the court, instead of rendering a does not have the effect to dissolve or
final judgment on the motion, should suspend the injunction. E. <& I. Bridge
enter an order overruling or sustaining Co. v. Krleger, 91 Ky. 625.
the motion, and on final hearing dispose (2) Jodfaeot ditsoWiiis may be tnper-
of the case on its merits. Simrall v. teded. Where on final hearing an in junc-
Grant, 79 Ky. 435. An order dissolving tion has been dissolved, the execution of
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166
DISSOLUTION AND RBINSTATEMBNT OF INJUNCTION. [TITLE VUI
§ 294 [tMi Only oae motioa to dissolve or nodify allowed* Only one
motion to dissolve or modify an injunction, upon the whole case, is
allowed.
§ 295 [SM] Assessmeat of damages oo dlssolutioo. Upon the dissolution,
in whole or in part, of an injunction to stay proceedings upon a judg-
ment, the damages shall be assessed by the court ; which may hear
the evidence and decide in a summary way, pr may, at its discretion,
cause a jury to be impaneled to find the damages. K the collection,
payment or use of money be enjoined, the damages may be any
rate per cent on the sum released by the dissolution, which, in the
discretion of the court, may be proper, not exceeding ten per cent.
And, if the delivery of property have been delayed by the injunc-
tion, the value of the use, hire or rent thereof shall be assessed;
judgment shall be rendered against the party who obtained the
injunction for the damages assessed; and the assessment shall be con-
clusive against the surety of such party.
§ 296 [9U] Time allowed for reinstatemeot 1. If the plaintiff desire to
apply for a reinstatement of an injunction dissolved or modified, on
a supersedeas bond by the plaintiff and
the service of an order of supersedeas
leaves the injunction in fuU force, and
the defendant will be guilty of contempt
if he disregards it. Smith v. Western
CJo., 83 Ky. 269; E. R. R. Co. v. Ashland
R. R. Co., 94 Ky. 748.
(3) Judgment dissolving injunction and
dismissing petition is final, although it
did not in terms dispose of a counter-
claim filed by defendant. E. R. R. Co. v.
Ashland R. R. Co., 94 Ky. 478 ; and where
injunction is dissolved upon final hearing
the remedy is by appeal of the whole
case. Pendergest v. Heekin, 94 Ky.
384.
1 295. (1) AsMSfliBCiit of damases. It is
only where proceedings on a Judgment
have been enjoined that the chancellor,
immediately upon the dissolution of the
injunction, is empowered to ascertain
the damages and render judgment for
them. In all other cases, the remedy is
on the bond. Logsden v. Willis, 14 Bush
183; Rankin v. Estes, 13 Bush 428; Alex-
ander V. Gish, 88 Ky. 13.
(2) In order to give a remedy upon an
injunction bond executed to stay proceed-
ings on a Judgment the court must assess
the damages, otherwise the party is with-
out remedy. Hayden v. Phillips, 89
Ky. 1.
(3) The provision that the damages
assessed upon the dissolution may be at
any rate per cent not exceeding ten, in
the discretion of the court, is not arbi-
trary, and the chancellor may give nom-
inal damages. Mallory v. Dauber, 83
Ky. 239.
(4) The amount of money or value of
the property enjoined is not estimated in
determining the question of damages on
the dissolution, as that liability is fixed
by the original Judgment. The court is
called on only to ascertain the special
damages sustained by reason of the in-
junction; and the party against whom
the injunction has been obtained must
by motion have the damages assessed
when the injunction is dissolved. If the
court does not assess the damages, none
can be recovered on the bond. Crawford
V. Woodworth, 9 Bush 745.
(5) Costs of defendant in action when
injunction is dissolved may be recovered
in action on bond. 89 Ky. 1.
I 2%. Applicatiofl of sectioii. Sections
296 and 297 apply to the dissolution of
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TITLE Vin] DISSOLUTION AND REINSTATEMENT OF INJUNCTION. 167
motion, the court or judge shall make the order of dissolution to
take effect in a reasonable time thereafter, not exceeding twenty,
days, and shall express in the order that the plaintiff has leave to
apply in the meantime for a reinstatement of the injunction.
2. Where an injunction has been granted or continued by any
interlocutory order or decree, the party enjoined may, within twenty
days from the entry of such order or decree, apply to a judge of
the Court of Appeals for a dissolution or modification of the
injunction. {Sec. as amended by act 1894.)
§ 297. Appellate jadfe may dissohre, modify or reinstate. A judge of
the Court of Appeals, if the plaintiff have secured the right to
apply for a reinstatement of an injunction, or if the party enjoined
move to have the injunction dissolved or modified, may, upon a
presentation of a copy of the record, including the evidence read,
or offered to be read, upon the motion to dissolve or modify the
injunction, reinstate the same in whole or in part, or may dissolve or
modify the injunction. The plaintiff in the application shall give
reasonable notice, in writing, of the time and place of the applica-
tion for reinstatement of the injunction, or of the motion to dissolve
or modify, and of the judge to whom it is to be made, to the party
affected thereby. If the order of reinstatement be filed in the clerk's
office in the time limited as provided in section two hundred and
ninety-six, subsection one, the injunction, as reinstated, shall be
obeyed, otherwise the order of dissolution or modification shall take
eftect. And if the order dissolving or modifying the injunction be
filed in the clerk's office in the time limited as provided in section
two hundred and ninety-six, subsection two, the order of dissolution
or modification shall take effect, otherwise the injunction shall
remain in force. {Sec. as amended by act 1894^.)
injunctions in advance of rendition of feated. The chancellor can not, before
final judgment. Pendergest v. Heekin, entering the mandate, suspend, by an
94 Ky. 384. Injunction, his power to act in obedience
I an. Mamlate— operation of can not be de- to it. Watson v. Avery, 3 Bush 635.
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168
RECBIVBB.
TITLE Vm
CHAPTER V.
RECEIVER.
§ 298. Court may appoint — appeal from order.
§ 299. Mortgaged property to take charge of.
g 300. Persons not to be appointed.
§ 301. Oath and bond of receiver.
§ 302. Powers of receiver.
§ 298 [9f] Coart may appoint — appeal from order. On the motion of any
party to an action who shows that he has, or probably has, a right to,
a lien upon, or an interest in, any property or fund, the right to
which is involved in the action, and that the property or fund is in
danger of being lost, removed or materially injured, the court, or
the judge thereof during vacation, may appoint a receiver to take
charge of the property or fund during the pendency of the action,
and may order and coerce the delivery of it to him. The order of a
court, or of the judge thereof, appointing or refusing to appoint a
receiver, shall be deemed a final order for the purpose of an appeal to
the Court of Appeals : Provided^ That such order shall not be super-
seded.
1 298. (1) ActkMi afainst receiver can not
be brought witliout leave of court by
which he was appointed. Spalding v.
Com., 88 Ky. 135.
(2) Appolotmeot of— powers. In an ac-
tion under the act of 1856, the statute
does not authorize the appointment of
a receiver, except to take charge of
property in the possession, or under the
control, of the transferee, or the person
to whom the conveyance is made ; and
there is no law authorizing a receiver to
take charge of property in the possession
of the transferrer, until it has been first
adjudged that the conveyance operated
as an assignment. Griffith v. Cox, 79
Ky. 562.
(3) When a receiver has been appointed
and is in possession, his possession is the
possession of the court, and may not be
disturbed without leave of the court ;
nor will the court, without its sanction
be first obtained, permit any one to inter-
cept or prevent payment to its receiver
of anything which he has been ap-
IKjinted to receive, although it may not
be actually in his hands. Hazelrigg v.
Bronaugh, 78 Ky. 62.
(4) Under section 200 a receiver may
be appointed to preserve the property,
but not to sell it. Wilson v. A. & T. Co.,
01 Ky. 200.
(5) See further, Kentucky Statutes,
sec. 392, as to receivers.
(6) LiabiHty for fnads. The receiver of
a fund having loaned it to a firm of
which he was a member, the other mem-
bers of the firm are liable, although the
money was repaid to the receiver by the
firm. Ryan v. Morrill, 83 Ky. 352.
(7) Not allowed to derive profit from foods.
A receiver will not be permitted to spec-
ulate in, or derive any profit or benefit
from, the purchase of property under his
control or in his hands; and any pur-
chase or profit so made will inure to the
benefit of the parties in interest. Tither-
ington V. Hodge, 81 Ky. 286.
(8) Order relnsiof to appoiit receiver is
final and may be appealed from. Lea-
veil V. Poore, 91 Ky. 321.
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TITLB Vin]
RECBIYER.
169
§ 299 [Mt] Mortfflfed property to take charfe of. In an action by a mort-
gagee for the sale of the mortgaged property, a receiver may be
appointed, if it appear that the property is in danger of being lost,
removed or materially injured, or that the condition of the mortgage
has not been performed, and that the property is probably insufficient
to discharge the mortgage debt.
§ 300 [sso] Persoos oot to be appointed. Excepting personal representa-
tives, guardians, curators and committees of persons of unsound
mind, neither a party to an action, nor his attorney, nor any person
interested therein, shall be appointed receiver.
§ 301 [SSI] Oath and bond of receiver. Before entering upon his duties,
the receiver must be sworn to perform them faithfully; and, with
one or more sureties approved by the court or judge, must execute a
bond to such person and in such sum as the court shall direct, to the
effect that he will faithfully discharge the duties of receiver in the
action, and obey the orders of the court therein.
(9) Practice on apptal--On appeal from
an order granting a motion to appoint a
receiver, the evidence heard on such
motion, whether oral or by deposition,
may be embodied in a bill of exceptions.
Goldsmith v. Fechheimer, 16 B. — .
(10) Sheriffs taretiet are not liable for
money collected by him as a receiver ap-
pointed by the court. Heeter v. Jewell,
6 Bush 510.
(11) Taxation of fands in hands of— cir-
cuit court should direct receiver to list
property and pay taxes. 88 Ky. 135.
§ 299. (1) AppoiatnMot !■ discretion of
conrt The appointment of a receiver is
a matter of sound legal discretion, to be
made or refused on the circumstances of
each particular case. Douglass v. Cline,
12 Bosh 608 ; and see 10 R. 482.
(2) A receiver may be appointed when
the title to land is involved, or there is a
proceeding to enforce a lien, and the
party in possession claiming title is in-
solvent and is committing waste, or when
the plaintiff is entitled to the rents under
his contract and the party in possession
is insolvent and the property insufficient
to pay the claim. Collins v. Richart, 14
Bush 021; Hounshell v. Insurance Co., 81
Ky. 304.
(3) Bond. A receiver appointed to col-
lect debts due an estate, being ruled to
report, in order to get time, executed a
new bond for the faithful performance of
his duties; the sureties in this bond were
held liable for the money ascertained to
have been in his hands when the bond
was given. Rowlett v. Eubank, 1 Bush 477.
(4) Although no statute authorizes a
general receiver to be appointed by the
court, if for convenience the receiver by
the consent and approval of the court
shall execute a general bond, it will be
good as a common law obligation and the
sureties bound for the acts of the receiver
under it. Ellis v. Carr, 1 Bush 527; see
further, Ky. Stat., sec. 392.
(5) Constractlon of section. In a suit to
enforce a mortgage Hen the court has no
power to order a sale of the mortgaged
property in advance of a decision upon
the merits, and can only appoint receiver
to preserve, not to sell the property. Wil-
son V. A. & T. Co., 91 Ky. 209.
(6) Mortsftfed property — rents. In an
action to enforce a mortgage lien, when
it appears that the condition of the mort-
gage has been broken, and that the
property is probably insufficient to dis-
charge the mortgage debt, a receiver may
be appointed to take charge of the prop-
erty, and in this way the rents and profits
arising from it may be secured for the
benefit of the mortgagee. Douglass v.
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170 DEPOSIT IN COURT. [TITLE VIII
§ 302 [881] Powers of receiver. The receiver has, under the control of
the court, power to bring and defend actions, to take and keep pos-
session of the property, to receive rents, collect debts and generally
to do such acts respecting the property as the court may authorize.
{May sue in his own namcy sec. 21.)
CHAPTER VI.
DEPOSIT IN COURT.
§ 303. Deposit of money or property may be ordered.
§ 304. Court may enforce order.
§ 305. Sheriff may be directed to keep property — costs.
§ 306. Sheriff may be directed to keep money.
§ 307. Money may be placed in bank.
§ 308. Money may be loaned.
§ 303 [sss] Deposit of money or property may be ordered. If a party admit
by his pleading, or upon examination, that he has in his possession,
or under his control, any money, or other thing capable of delivery,
which, being the subject of the litigation, is held by him as trustee
for another party, or which belongs or is due to another party, the
court may order the same to be deposited in court, or to be delivered
to the party who is thus admitted to be entitled thereto, with or
without security, subject to the further order of the court.
§ 304 [»»4] Court miy enforce order. If, in the exercise of its authority,
a court order the deposit or delivery of money or other thing, and
the order be disobeyed, the court, besides punishing the disobedi-
ence, may make an order requiring the sherilf to take the money or
thing, and deposit or deliver it in conformity with its direction.
§ 305 [S80J Sheriff may be directed to keep property — costs. The court may
Cline, 12 Bush 608; N. & C. Bridge Co. v. to whom he is directed to pay mone^v
Douglass, 12 Bush 673; WooUey v. Holt, the amount due to him. The possession
14 Bush 788; Taliaferro v. Gay, 78 Ky. 496. of funds collected by the receiver is the
§302. (1) Powers of receiver. Areceiv- possession of the court. Johnson v.
er can not bring an action involving Gunter, 6 Bush 534 ; see further, notes
the title to real estate, or submit a con- to sec. 298.
troversy concerning real estate to arbi- § 303. Clerics oot aotliorized to receive
tration and bind without their consent money on replevin bonds, judgments or
the parties in interest by the judgment executions, and the sureties in the bond
which may be rendered.. Caldwell v. of the clerk are not liable for his failure
McWhorter, 84 Ky. 130. to pay over money thus received by him.
(2) A receiver has no right to retain Hardin v. Carrico, 3 Met. 290 ; Chinn v.
funds collected by him, and pay with Mitchell, 2 Met. 92 ; Durant v. Gabby, ^
his individual claims against the party Met. 91.
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TITLE Yin] DEPOSIT IN COURT. 171
direct the sheriff to keep safely any property delivered to him pur--
suant to the provisions of this chapter; and may allow him the
necessary expenses attending the same, to be paid by such party as
the court shall direct, and taxed in the costs of the action.
§ 306 [»•] Sheriff may be directed to keep mooey. It may confide to the
sheriff money deposited or paid into court — which shall be kept by
him under the same requirements and responsibilities of himself and
his sureties as are provided by this Code in respect to money depos-
ited in lieu of bail.
§ 307 [S8T] Money may he placed in bank. A court sitting in a county in
which, or in any county adjoining which, there is a bank, or a branch
of a bank, created by the laws of this State, or of the United States^
transacting regular banking business, may order money paid inta
court to be deposited in such bank or branch, to the credit of the
court in the action or proceeding in which the money was paid.
Money so deposited shall be paid only upon the check of the clerk
of the court, annexed to its certified order for the payment, and in
favor of the person to whom the order directs the payment be made,
§ 308 [M») Money may be loaned. Money deposited or paid into court,,
in an action, shall not be loaned by the court, unless with the consent
of all the parties having an interest therein or making claim thereto ;
or, unless the party moving to have it loaned, execute a bond to the
Commonwealth of Kentucky, with good surety, to be approved by
the court, for the benefit of the parties interested, conditioned that
the borrower of the money will pay it according to the contract of
loan.
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172 ISSUES OF LAW AND FACT. [tITLB IX
TITLE IX.
TRIAL AND JUDGMENT.
Chafteb I. Issue, 309.
II. Trial, 311.
1. Trial in gbnbral, 311.
3. Trial by jury, 316.
3. Trial by court, 831.
4. Exceptions, 333.
5. New trial, 340.
6. General provisions, 345.
7. Time op trial, 347.
III. Judgment, 368.
1. Judgment in general, 368.
2. Upon failure to plead, 879.
3. Judgment bt confession, 381.
4. Manner of giving and entering, 384.
5. Conveyance by commissioner under, 394.
IV. Revivor op judgments, 401.
CHAPTER I.
ISSUE.
§ 309. Definition— two kinds.
§ 310. Issue of fact — when arises.
§ 309 [8S9] Definitioo — ^two kinds. Issues arise on the pleadings when
a fact, or conclusion of law, is maintained by one party and contro
verted by the other. They are —
1. Of law.
2. Of fact.
§ 310 [8*0] Issue of fact — when arises. An issue of fact arises —
1. Upon a traverse in an answer or other pleading of a mate-
rial allegation in a petition or other pleading.
2. Upon an allegation of a pleading which is controverted by
law. {Traverse defined^ sec, 113-7)
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TITLE IX]
TRIAL IN GEKEBAL.
173
CHAPTER IL
TRIAL.
Abticlb 1. Tbial m esHsiiAL, 811.
2. Tbialbtjubt, 316.
8. Tbial bt thb coubt, 881.
4. ExcBPTiONS, 833.
5. Nbw tbial, 840.
6. Gbnbbal pbovisiohs, 846.
7. Time of tbial, 347.
ARTICLE 1.
TBIAL IN GBNEBAL.
§ 811. Trial defined.
§ 312. Issueft-^how tried.
§ 313. Trial of fact by court.
§ 314. Order in which actions shall be tried.
§ 815. Postponement of trial.
§ 311 [t4i] Trial defliied. A trial is a judicial examination of the issues
of law or of fact in an action or proceeding.
§ 312 [MS] issues — how tried. 1. Issues of law must be tried by the
court.
2. Issues of fact in ordinary actions, except for injuries to person
or character, shall be tried by the court, unless a jury trial be de-
manded by a party. (Court may try actions for injuries to person and
character^ sec. SSiy court to state separately law and facts, sec. 3S^.)
§ 313 [»♦»] Trial of facts by conrt All other issues of fact shall be tried
by the court, subject to its power to order any issue to be tried by a
jury. (As to transferring actions from equity to ordinary^ and vice versa,
and submitting issues to jury, see sees. 8 to 16.)
§312. a) Jodfnent of clianccllor. As
to the weight and effect of the Judgment
of the chancellor in a common law
action, see note 1 to sec. 10.
(2) Law and tacts submitted to <;ourt,
admission of incompetent evidence not
reversible error. Andrews v. Hayden,
88 Ky. 455.
(3) Motioa aad srooads for acw trial. In
a common law action when the law and
facts are submitted to the court, a motion
and grounds for a new trial are necessary
in order to a review by the Court of
Appeals of any alleged error committed
during the trial ; in the absence of a
motion and grounds for a new trial noth-
ing is before the court except the inquiry
as to whether the pleadings state any
cause of action or defense, and whether
the evidence authorizes the judgment.
Helm V. Coffey, 80 Ky. 176; Harper v.
Harper, 10 Bush 447; Henderson v.
Dupree, 82 Ky. 678 ; and see sec. 340 and
notes.
(4) Practice. Assessment of damages
by the court. See notes to sec. 126 ; and
see notes to sees. 11, 12, as to right to
trial by jury.
1 313. (1) Siitalssion of Istae la cfean-
eery to a Jory. The courts of chancery
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174
TRIAL IN GENERAL.
[title DC
§ 314 [S44] Order io which actkuis shall be tried. The trial of each action
ehall be according to the order in which it stands apon the docket,
unless for good reason appearing the court shall order otherwise.
§ 315 [MO] Postpoflemeat of triaL A motion to postpone a trial on
account of the absence of evidence can be made only upon affidavit
showing the materiality of the evidence expected to be obtained,
and that due diligence has been used to obtain it ; and, if it be for
an absent witness, the affidavit must show what facts the affiant
believes the witness will prove, and not merely the effect of such
facts in evidence ; and that the affiant believes them to be true. If,
thereupon, the adverse party will consent that, on the trial, the affi-
davit shall be read as the deposition of the absent witness, the trial
shall not be postponed on account of his absence. (When witness
liable for cost of continuance ^ sec. 636.)
have the power to order a matter of fact
strongly controverted to be tried by a
jury, and the issue thus tried may be
formed on exceptions to a master^s report.
Orabb v. Larkin, 0 Bush 154 ; in Horner
V. Harris, 10 Bush 357, the court say in
such cases the issue to be tried should be
presented by pleadings as in other cases ;
a party may present by petition his claim
against a decedent's estate in an action
to settle the estate, and in such case the
adverse party should be required to con-
trovert it by an answer. See further,
notes to sees. 11, 12.
(2) In an equity action an order to the
effect that the issue raised by the plead-
ings was referred to a Jury is snfBcient
when there was only one issue presented.
On the trial of an issue by a Jury, oral
evidence is admissible. Savings Bank v.
Benton, 2 Met. 240 ; McMakin v. Strat-
ton, 82 Ky. 226.
(3) Trial by coart In an equitable ac-
tion the court, when a ijury is not de-
manded, may determine the value of
property wrongfully converted or at-
tached. Greer v. Powell, 1 Bush 489.
See further, notes to sec. 126.
(4) Verdict— bow rtfarded. When in an
equitable action an issue is on motion sub-
mitted to a Jury, the verdict has the same
effect as in ordinary cases, and especially
is this the case when the parties prefer to
have an issue tried by a jury. Moore v.
Sheperd, 2 Duv. 125 ; and see Hendrick v.
Money, 1 Bush 306, and see note to secsL
11, 12.
|31& (1) Affidayit for contiflttMe. The
refusal to grant a continuanoe is not
an abuse of discretion when the state*
ment of what the absent witness will
prove is 'admitted as evidence; a party
has no right to a postponement to enable
him to procure the attendance of a per-
son not in his employ to assist his attor
ney on the trial of the case. M. <& L. R.
B. Co. v. Herrick, 13 Bush 122.
(2) Affidavit for continuance may be
made by a person not a party to action
if he is informed concerning and can
state necessary grounds for continuance*
Hardesty v. Oom., 88 Ky. 537.
(8) A party is not entitled to a contin*
uance on account of the absence of a
witness who lives in another county,
unless he shows that he has paid or ten-
dered the witness fees, or that the witness
has waived the payment. Thurman v.
Virgin, 18 B. M. 785; the Code of 1854,
sec. 594, provided that a witness should
not be obliged to attend a trial except in
the county of his residence or an adjoin-
ing county. See sees. 534, 536 of this
Code as to attendance of witnesses; and
Ky. Stat., sec. 1734, as to fees.
[ (4) The defendant was not entitled to
a continuance on account of an absent
witness by whom he could prove that a
witness who would testify for plaintiff
was not present when the assault com-
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TITLE IX]
TRIAL BY JURY.
175
ARTICLE 2.
TBIAL BT JURY.
§ 316. Formation of jury.
§ 317. Order of proceeding in trial.
§ 318. View of property or place by jury.
§ 319. Duty of jury and officer after submission.
§ 320. Admonition by court to jury.
§ 321. Information as to law or evidence after submission.
§ 322. Discharge of jury — causes for.
§ 323. Retrial of case when jury discharged.
§ 324. Verdict — manner of delivering — poll of jury.
§ 325. Verdict to be written and signed— clerk to read.
§ 326. Verdicts described and defined.
§ 327. Verdict— kinds that jury may find.
§ 328. Judgment if general and special inconsistent.
§ 329. Assessment of recovery by jury.
§ 330. Value of property and damages — assessment of.
§ 316 [9^] Pormatioii of jury. The general mode of summoning, impan-
eling, challenging and swearing the jury is not changed by this
Code. {For provisions concerning ^ see Ky. Stat^ sec. ^264,)
§ 317 [84T] Order of proceeding in trial. When the jury has been sworn,
the trial shall proceed in the following order, unless the court, for
special reasons, otherwise direct :
plained of in the petition occurred,
because he did not set out in his affidavit
what the plaintiff expected to prove by
liis vritness. Slater v. Sherman, 5 Bush
306.
(5) Affidavit— a m e n d m e n t of is not
permitted after court has expressed an
opinion, so the court held in Singleton v.
Carr, 1 Bibb 554; Smalley v. Anderson,
4 Mon. 367, but see CJom. v. Hourlgan, 89
Ky. 305, where it is held that in criminal
cases after a motion for a continuance is
overruled, court ma}' allow amended
affidavit to be filed and motion renewed.
(6) Anendmeat of pleadins. Grounds
of continuance, see sec. 136; and see
"Watts V. McEenney, 1 Mar. 561 ; Ewing
V. Beauchamp, 4 Bibb 496; Eldridge v.
Duncan, 1 B. M. 101. holding that an
amendment entitling party to continu-
ance must be material, and not a mere
verbal one.
(7) Error in overraling motion for con-
tinuance is reversible. McCarty v. Pat-
ton, 3 J. J. M. 263.
(8) See notes to section 189 Criminal
Ckxie where a number of cases are cited
on the question of continuance.
BURDEN OP Pi^OOP.
§ 317. (1) Affumeot — iotrodnction of
evidence. Where the court required a
party to introduce his evidence first by
ruling that he had burden of proof, and
after evidence was all in reversed its
ruling and gave adverse party conclusion
of argument, the error was prejudicial.
Party who has burden must introduce
his evidence first, and is entitled to con-
clude argument. O'CJonnor v. Henderson
Bridge Co., 95 Ky. 633; limiting argument
is matter in discretion of trial court.
L. & N. R. R. V. Earl, 94 Ky. 368 ; but to
prohibit counsel from arguing case to
jury is error. Behune v. Caldwell, 2
Bibb 76.
(2) Alteration of note. The burden of
explaining all alterations, erasures or
mutilations of a paper upon which a
liability is sought to be established is
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176
TRIAL BY JURY.
[tITLB IX
1. The plaintiff must briefly state his claim and the evidence by
which he expects to sustain it.
2. The defendant must then briefly state his defense and the
evidence he expects to offer in support of it.
3. The party on whom rests the burthen of proof, in the whole
action, must first produce his evidence ; the adverse party will then
produce his evidence. {Who has burden of proof j sec. 626.)
upon the holder. Elbert v. McClelland,
8 Bush 577 ; 13 Bush 397.
(3) Bnrdefl of proof is on party who
would be defeated if no evidence was
offered on either side. Royal Ins. Co. v.
Schwinff, 87 Ky. 410; 10 R. 883.
(4) Cootributory neflisence. Contribu-
tory negligence is purely a matter of
defense, and as to it the burden is on the
defendant. Bogenschutz v. Smith, 84
Ky. 330; P. & M. R. R. Co. v. Hoehl, 12
Bush 41.
(5) Denial of concMias arfmneot to
party who has burden of proof is a revers-
ible error. Royal Ins. Co. v. Schwing,
87 Ky. 410; Pireman^s Ins. Co. v.
Schwing, 10 R. 883 ; Crabtree v. Atchin-
son, 93 Ky. 338 ; Lucas v. Hunt, 91 Ky.
279.
(0) False ittprisonflieiit ^ burden on
plaintiff, and he has the right to conclude
argument. Duffy v. Casey, 3 R. 334, and
see Lucas v. Hunt, 91 Ky. 279.
(7) Praod and want of consideration— plea
of, places burden upon defendant. Crab-
tree v. Atchinson, 93 Ky. 338.
(8; Infancy. The general rule Is that
when a party relies upon a disability,
such as infancy, the burden is upon him
to establish it. Murrell v. McAllister,
79 Ky. 311.
(9) KIlHns stock by railroad. In an action
against a railroad company for killing
stock, when the plaintiff has proved the
killing or it is admitted, the burden is
upon the defendant as to the question of
negligence, and the plaintiff, after the
defendant has concluded its evidence
upon this issue, has the right to intro-
duce his evidence bearing upon it. K.
C. R. R. Co. y. Lebus, 14 Bush 518; L. &
N. R. R. Co. v. Brown, 13 Bush 475 ; K.
C. R. R. Co. v. Talbot, 78 Ky. 621.
(10) MaUcions prosecollOfl* In an action
for malicious prosecution, the issue of
probable cause or a general traverse does
not place the burden upon the defendant.
Lucas V. Hunt, 91 Ky. 279, overruling
Brown v. Morris, 3 Bush 81 ; and see
Ullman v. Abrams, 9 Bush 788.
(11) No consideration— special considera-
tion. Plea of no consideration to written
contract ; burden is on defendant. An-
drews V. Hayden, 88 Ky. 455 ; Trustees
V. Fleming, 10 Bush 234; but where a
special consideration is relied on, or the
plaintiff undertakes to show what was
the consideration, he assumes the burden.
Steadman v. Quthrie, 4 Met. 147 ; L. «&
N. R. R. V. Literary Societies, 13 R, 5.
(12) Non est factnni — plea of, places
burden upon plaintiff to show execution
of writing. Andrews v. Hayden, 88
Ky. 455.
(18) Payment If the answer admits
the execution of the note and pleads pay
ment, the burden is on the defendant.
Clarkson v. White, 3 B. M. 376.
(14) PoBSessioo of nott. The mere pos
session of a promissory note not assigned
is not prima facie evidence of ownership;
and when the ownership is contested, the
burden is on the holder to show that his
possession is rightful. Gano v. McCar-
thy, 79 Ky. 409.
(15) Possessioi—ownerskip. Where the
petition alleged that the plaintiff was the
owner of a slave, and that she bad been
unlawfully taken from his possession by
defendant, and the answer admitted the
taking, denied the oMrnership and alleged
that defendant was the owner, the bur-
den of proof was on defendant. Vance v.
Nance, 3 Met. 581.
(16) Promissory note— Henial of credit on»
When a payment indorsed on a note is
relied on to defeat a plea of limitation,
and the payment is denied, the burden of
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177
4. The parties will then be confined to rebutting evidence, unless
the court, for good reasons in furtherance of justice, permit them
to offer evidence in chief.
5. When the evidence is concluded, but before the argument to
the jury, either party may require the court to direct the jury to
find a separate-general verdict with the general verdict [or to find
proving it is on the holder of the note.
Frazer v. Frazer, 13 Bush 397.
(17) Receipt executed by party, if genuine,
places the burden on him to avoid it.
The Addyston Pipe Co. v. Ck^pple, 94
Ky. 292.
(18) Several iuaes. On the trial of a
case presenting several issues, that if
tried singly would shift the burden, the
court has a large discretion in prescribing
order of proof, and as a general rule the
plaintiff will be lequired to conclude his
entire case on all issues; but as to any
issue upon which burden would be on de-
fendant if it was the only one presented,
the plaintiff should be allowed to intro-
duce testimony by way of rebuttal
although in chief. Andrews v. Hayden,
88 Ey. 455 ; see further, sec. 526.
INSTRUCTIONS.
(1) Abstract principles of law. It is error
to give instructions which contain mere
abstract principles of law ; as to say to
the jury **that where there is a conflict
in the testimony of witnesses, the one
side being of an affirmative and the other
of a negative character, the affirmative
character of testimony is preferred and
is entitled to the greater weight by the
jury in making up their verdict." Lou.
Chem. Works v. Com., 8 Bush 170.
(2) Asswnins certain facts. Instructions
which assume the existence of certain
facts that the jury have a right to deter-
mine, should not be given. Murphy v.
May, 9 Bush 33 ; but an uncontradicted
fact may be assumed in an instruction.
L. & N. R. R. V. Earl, 94 Ky. 368 ; and
the court may instruct the jury that
certain material allegations of the plead-
ings which are not denied are true ; but
the allegations thus admitted should be
pointed out in the instruction. Hartley
V. Hartley, 3 Met. 57 ; Becker v. Crow,
7 Bush 198 ; Tipton v. Triplett, 1 Met.
570; AUard v. Smith, 2 Met. 297.
(12)
(3) Compensatory damafes. Proper
instructions as to. Ky. Central R. R. v.
Ackley. 87 Ky. 278 ; Ky. Central R. R. v.
Gasteneau, 83 Ky. 119.
(4) CauTi not boond to inttmct jnry as to
whole law of case, but if it assumes to
instruct on its own motion it should give
all the law applicable. Swope v. Scha-
fer, 9 R. 160.
(5) Credibility of witnesses. It is error to
give an instruction that jury are judges
of the credibility of witnesses and of the
weight to be attached to their evidence ;
but the court will not reverse on this
ground if such an instruction was not
prejudicial. Transatlantic Ins. Co. v.
Bamberger, 11 R. 101; Peoples v. Com., 87
Ky. 487; Barnard v. Com., 10 R. 143;
Harnett v. Com., 84 Ky. 449.
(6) It is error to instruct the jury
**that if they believe any witness has
sworn falsely and knowingly to any ma-
terial fact, they are bound, or have the
right, to disregard all his testimony.'*
The jury are the exclusive judges of the
testimony. Letton v. Young, 2 Met. 558 ;
Hall v. Renfroe. 3 Met. 52.
(7) Instmctiont to be in writinf when re-
quested. The court instructed the jury
orally, and one of the jury inquired if
the instructions were in writing. The
court replied they were not. Counsel for
plaintiff then said he hqped they would
be reduced to writing. Held the lan-
guage used was equivocal, and not suf-
ficient to apprize the court that written
instructions were required. If a party
desires written instructions, he should
request the court to give them in writing.
Ferguson v. Fox, 1 Met. 83.
(8) Uw to be decided by the conrt The
court should decide all questions of law,
and only submit the facts to the jury.
Maltus V. Shields, 2 Met. 653.
(9) NefUfence — fross neflect— ordinary
care — ordinary nefUfence. Proper instruc-
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a special verdict. If a special verdict be so required, the questions
of law may be reserved by the court until after verdict, but] if a
general verdict be required, either party may ask written instruc-
tions to the jury on points of law, which shall be given or refused
by the court before the commencement of the argument to the jury.
6. The parties may then submit or argue the case to the jury.
In the argument, the party having the burthen of proof shall have
the conclusion and the adverse party the opening. H there be
more than one speech on either side, or if several defendants having
separate defenses appear by different counsel, the court shall
arrange the relative order of argument. ( Words in brackets stricken
out by act 1886; see amd. to sec. 327; icho has burthen of proof sec.
526; order of proof regulated by courts sec, 592.)
§ 318 [848] View of property or place by lory. Whenever, in the opinion
of the court, it is proper for the jury to have a view of real property
tions defining. L. & N. R. R. v. McCoy,
81 Ky. 403; Needham v. L. & N. R. R..
85 Ky. 423.
(10) Peremptory ioBtractiofl. When there
is evidence tending to establish a matter
in issue, the court should not grant a
peremptory instruction, although the
judge siiould be of the opinion that if
tlie jury found adversely to the request
for such instruction, he would be com-
pelled to grant a new trial. Buford v. L.
4& N. R. R. Co., 82 Ky. 286; Thompson
V. Thompson, 17 B. M. 22; 11 Bush
265.
(11) To authorize an instruction as in
case of a non-suit, it should appear that,
admitting the testimony to be true, and
every inference that is fairly deducible
from it, the plaintiff has still failed to
support his claim. Shay v. R. & L. T. P.
Co., 1 Bush 108.
(12) While it is usual for the defendant.
In moving for a peremptory instruction,
to do so upon the plaintiff's evidence
alone, yet the court may, after all the
evidence has been heard upon both sides,
direct the jury to find for the defendant,
if all the evidence is in his favor. Wil-
sey V. L. & N. R. R. Co., 83 Ky. 511.
(13) If the court overrules a motion for
peremptory instructions at conclusion of
plaintiff's testimony, and afterward be-
comes satisfied that this was error, it may,
upon conclusion of all the evidence, set
aside former ruling and instruct jury to
find for defendant. Nance v. Newport
News R. R., 13 R. 554.
(14) The rule is, "that a party may
move upon the evidence of his antagon-
ist, assuming that evidence and every
fact which it conduces to prove as true,
and ask the court for a peremptory in-
struction ; but he c^n not make such a
motion on his own evidence alone, or on
his evidence mingled with, or added to,
that of the opposite party, unless his
own evidence is composed of record, or
uncontested unofficial documents or writ-
ings." United Shakers V. Underwood, 11
Bush 265.
(15) ProDtioeot facts. Instructions
should not be given which give promi-
nence to certain portions of the evidence,
when the whole of it should have been
left to be considered and weighed by the
jury. Flood v. Pragoff, 79 Ky. 607;
Stokes v. Shippen, 13 Bush 180.
§318. View of premises. Court may
permit jury to view place where an acci-
dent occurred, even after they have re-
tired to consider their verdict, when
the jury so request. L., N. A. & C. R
R. V. Schick, U Ky. 191 ; and see Ky. C
R. R. V. Smith, 93 Ky. 449; where it is
held that where jury was sent to view
premises at close of testimony It was not
error to refuse to permit them to go at &
particular time during trial.
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TITLE IX] TRIAL BY JUEY. 179
which is the subject of litigation, or of the place in which any material
fact occurred, it may order them to be conducted in a body, under
the charge of an officer, to the place, which shall be shown to them
by some person appointed by the court for that purpose. While the
jury are thus absent no person, other than the person so appointed,
shall speak to them on any subject connected with the trial.
§ 319 i'«»i Doty of jury and officer after submissioii. When the case is
finally submitted to the jury, they may decide in court or retire for
deliberation. If they retire, they must be kept together in some
convenient place, under the charge of an officer, until they agree
upon a verdict or are discharged by the court — subject to the discre-
tion of the court to permit them to separate temporarily at night
and at their meals. The officer having them under his charge shall
not suffer any communication to be made to them, nor make any
himself, except to ask them if they have agreed upon their verdict,
unless by order of the court ; and he shall not, before their verdict is
rendered, communicate to any person the state of their deliberations,
or the verdict agreed upon.
§ 320 [85f ] Admonitioii by court to Jury. If the jury be permitted to sep-
arate, either during the trial or after the case is submitted to them,
they must be admonished by the court that it is their duty not to
converse with, nor suffer themselves to be addressed by, any other
person on any subject of the trial ; and that, during the trial, it is their
duty not to form or express an opinion thereon, until the cause is
finally submitted to them.
§ 321 [Mi] Informatioii as to law or evidence after submiBsioii. After the jury
have retired for deliberation, if there be a disagreement between them
as to any part of the testimony, or if they desire to be informed as to
any point of law arising in the case, they may request the officer to con-
duct them into court, where the information required shall be given
in the presence of, or after notice to, the parties or their counsel.
§ 321. (1) Jory— how informed «s to law be permitted to re-examine a witness
or evideace after retiring. After tlie jury respecting a fact not before testified to,
have been instructed, and have retired where the court is satisfied that probable
for consultation, any information, writ- injustice would otherwise be done, but
ten or oral, sent to them by the judge is in such case cross-examination would be
a violation of the Code. Goode v. Camp- proper. Thompson v. Poston, 1 Duv. 389.
bell, 14 Bush 75. (3) After the jury had retired, a wit-
(2^ A jury may be allowed after retir- ness who had testified was sent for by
ing to return into court to inquire of a them, admitted into the jury room and
witness what he had testified to, or said, re-examined without the knowledge or
in any part of his testimony, and cross- consent of the court or parties ; held
examination would not be allowed. In sufficient grounds for a new trial. Lut-
rare cases a jury might, after retirement, trell v. M. & L. R. R. Co., 18 B. M. 291.
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180 TRIAL BY JURY. [TITLE IX
§ 322 [S5S1 DIscharfe off jory— causes for. The jarj may be discharged by
the court on account of the sickness of a juror, or other accident or
calamity requiring their discharge; or, by consent of both parties;
or, after they have been kept together until it satisfactorily appears
that there is no probability of their agreeing. ♦
§ 321 [su] Retrial of cases in which jary discharfed. Cases in which the
jury are discharged without making a verdict shall be tried again at
such time as the court may direct.
§ 324 [S54J Verdict — manner of rendering — poll of ]ary. When the jury
have agreed upon their verdict, their names shall be called by the
clerk and the verdict be rendered by their foreman. When the ver-
dict is announced, either party may require the jury to be polled —
which is done by the clerk or court asking each juror if it is his
verdict. If any one answers in the negative, the jury must again be
sent out for further deliberation.
§ 325 [S551 Verdict to be written and signed — clerk to read. The verdict
shall be written, signed by the foreman, and read by the clerk to the
jury, and the inquiry made, whether or not it is their verdict. If
any juror disagree, the jury must be sent out for further delibera-
tion; but if no disagreement be expressed, and neither party
require the jury to be polled, the verdict is complete and the jury
discharged from the case. (Provision when three-fourths of jury ren-
der, sec. 2268y Ky. Stats.)
§ 326 [sftt] Verdicts described and defined. The verdict of a jury is gen-
eral or separate-general [or special] :
$325. (1) Verdict— sufffficiency off. Tlie jurors. Allard v. Smith, 2 Met. 297;
provision of the Code that the verdict and if affidavits of jurors can be received
shall be signed by the foreman is merely to show that their verdict was not what
directory, and a motion to set aside a they intended it to be, they should be
verdict because not signed comes too received with great caution and the ver-
late after the jury has been discharged, diet remain unchanged unless the mis-
Berry V. Pusey, 80 Ky. 166 ; and see take is clearly made out. Alexander v.
further, notes to section 255 Criminal Humber, 86 Ky. 565.
Code, as to manner of rendering verdict (4) Verdict finding " for plaintiflf the
and correction of. debt in the petition mentioned" is suffl-
(2) Jury may return to their room and ciently certain. Brannin v. Force, 12
perfect their verdict if they have brought b. M. 509; or '*for plaintiflf." Cooper
in an imperfect or irregular one. Tarl- y. Poston, 1 Duv. 92; nor does surplus-
ton V. Briscoe, 1 Mar. 67 ; or the judge age in a verdict vitiate it. Kouns v.
may, if verdict is a substantial response Grayson, 2 Bibb 237.
to issue, correct informalities in it.
Worley V. Isbel, 1 Bibb 247; Crozier v. QENERAL VERDICT.
Gano, 1 Bibb 257. g 326. (1) Verdict— defects in pletdlas
(3) Affidavits of jurors can not be cured by. Where there is any defect, im^-
received to impeach their verdict for perfection or omission in any pleading,
misbehavior in themselves or their fellow whether in substance or form, which
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1. A general verdict is that by which the jury pronounces gen-
erally, upon all the issues, for the plaintift' or for the defendant.
2. A separate-general verdict is the finding, upon any of the
issues, in favor of the plaintiff or of the defendant.
[3. A special verdict is the finding of facts by a jury, as shown
in their answers to questions submitted to them in writing.]
( Words in brackets repealed by act 1886,)
§ 327 [»»T] Verdicts — kind that Jury may find. Unless otherwise directed,
the jury may find a general, or a general and separate-general, ver-
dict [or a special verdict, with or without a general] or a separate-
general verdict; but the court may, without motion, or upon the
motion of a party shall, direct the jury to find —
would have been fatal on demurrer, yet
if the issue Joined be such as necessarily
required on the trial proof of the facts,
so defectively stated or omitted, and
without which it is not presumed that
either the judge would direct the jury
to give, or the jury would have given,
the verdict, such defect, imperfection or
omission is cured by the verdict. Drake
V. Semonin, 82 Ky. 291 ; L. & P. Canal
Co. V. Murphy, 9 Bush 522.
(2) Where there is a total omission to
state a cause of action, or some fact es-
sential to the cause of action has been
wholly omitted, the verdict will not cure
the defect. Bogenschutz v. Smith, 84
Ky. 330 ; 82 Ky. 291. See further, note
10 to sec. 95.
(3) Verdict is sot a iadsment The ver-
dict is not a judgment, the court must
render judgment upon it ; and the court
can not refuse to render judgment upon
the verdict, upon proper notice and mo-
tion made after the expiration of the
time to move for a new trial. Fuqua v.
Mullen, 13 Bush 467.
(4) Verdict— how constmed. When a
question between A and B as to the own-
ership of a horse is submitted to a jury,
and the verdict is that the property was
owned by B, it will be regarded as mean-
ing that B was the owner at the time of
the levy. Schweim v. Sims, 2 Met. 209 ;
and see Noel v. Hudson, 13 B. M. 205.
(5) Verdict in absence of proof. In an
action for the value of work and labor,
the jury have a right in the absence of
all proof of the value of such labor to
find a verdict for the price of the work
done is charged in the petition. Baum
v. Winston, 3 Met. 127.
(6) In an action for assault and bat-
tery, where the defendant fails to an-
swer, the jury may properly, without
proof, render a verdict for the plaintiff
for more than nominal damages. Rogers
V. Aulick, 2 Duv. 419.
SePARATE-OENERAL VERDICT DEFINED.
** The meaning of the expression * sep
arate-general verdict' is, that the ver
diet is separate as to the particular issue
as distinguished from any other issue in
the case, and general as to the particular
issue. That is, it was intended to apply
in cases where there is more than one
issue. For instance, an action upon an
alleged contract when the issues pre-
sented are — first, was the contract pro-
cured by fraud or duress? And, second,
if it was so procured, and therefore
voidable, was it subsequently ratified by
the defendant after a full knowledge of
the fraud and the removal of the duress?
If, in such case, the jury should find a
general verdict for the defendant, the
court could not determine whether it was
based upon the ground that the evidence
authorized the conclusion that there was
fraud or duress sufficient to invalidate
the contract, or upon the ground that
there was not evidence requisite to
establish a ratification. The evidence
might preponderate in favor of the con-
clusion that there was fraud or duress
sufficient to invalidate the contract, but
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TRIAL BY JURY.
[title IX
1. A separate-general verdict, as to any issue; and with such
finding the jury shall also return a general verdict ; and, if the
separate-general verdict he inconsistent with the general verdict,
judgment shall he rendered pursuant to the former; or,
[2. A special verdict ; and, on such finding, the jury shall return
la special verdict only; and the court shall render judgment
upon it.]
Amendment of May 15^ 1866. So much of chapter two, title
nine, of the Civil Code of Practice as authorizes and pro\ndes for
a separate-general or a special verdict be, and the same is hereby,
repealed : Provided^ That the court in its discretion may direct
the jury to find a separate-general verdict.
at the same time the evidence upon the
issue of ratification might be such that
the preponderance in favor of a ratifica-
tion would be so overwhelming that the
court should grant a new trial. If a
separate-general verdict is asked for, the
court shall grant it, and with it shall re-
quire the jury to return a general ver-
dict. In such cases it is not only proper,
but necessary, that the jury should be
instructed by the court as to the law
applicable to the particular issues to be
found by the jury as fully as if there
was only one issue in the case and a jury
were required to find a general verdict
thereon." Witty v. C. & O. R. R. Co.,
83 Ky. 21.
SPECIAL VERDICTS.
(1) Special fladinss permissible. In Tins-
ley V. Ross, 15 R. 44, special findings were
submitted to the jury, and on their find-
ings the court rendered judgment. In
answer to the objection that the law per-
mitting special findings had been re-
pealed, and it was therefore error to sub-
mil them, the court held the objection
not available as the judgment was cor-
rect.
Special fiiidiiifs— ^practice. When in an
ordinary action both legal and equitable
defenses are relied upon, the court may
submit to the jury for its decision such
matters of fact as are Involved in the
equitable issue, when such issue has not
been transferred to the equity docket,
and the finding of the jury in relation to
the facts involved in the equitable issue
should be special, to enable the court to
render such a judgment thereon as may
be proper and equitable between the par-
ties. Petty V. Malier, 15 B. M. 591.
(2) The finding of a jury on a special
verdict as to the evidence will be treated
like a general verdict, and will not be
disturbed unless flagrantly against the
evidence. Empire Co. v. Mcintosh, 83
Ky. 554.
(3) When there is no evidence to sup-
port a special verdict, the court, instead
of rendering judgment against, it should
grant a new trial. Casey v. L. & N. R.
R. Co., 84 Ky. 79 ; L. & N. R. R. Co. v.
Brice, 84 Ky. 298.
*' The rule is imperative that the court
shall direct the jury to find upon such
issues or facts as are embraced by the
motion or interrogatories, but the court
may reject the form proposed by counsel
and put the question or prescribe the
mode of eliciting the special verdict
according to its sound discretion." Louis-
ville R. R. V. Weams, 80 Ky. 420.
(4) In directing a special verdict the
court should confine the questions pro-
pounded to the controlling facts in the
case and they should be such as to enable
the court on the return of the verdict to
apply the law and enter judgment with-
out anything further from the jury ;
and where either party may be entitled
to recover money, or where damages are
to be assessed, the court should direct
the jury to assess the amount of recovery.
A special verdict is a finding of facts
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§ 328 [85t] Jmlfmeiitt if general and special inconsistent. If a general and a
special verdict be inconsistent, judgment shall be rendered pursuant
to the latter. {This sec. repealed by act 1886.)
§ 329 [!»•] Assessment of recovery by Jnry. If, by a general verdict, either
party be entitled to recover money of the adverse party, the jury, in
their verdict, must assess the amount of recovery.
§ 330 [SCO] Wben jury to assess valne of property and damages. In actions
for the recovery of specific personal property, the jury must assess
its value, and the damages for the taking or detention of it, if their
verdict authorize a judgment for the recovery or return of the
property. {Form of judgment^ page648and sec. 388. Form of execu-
tion for specific property ^ page 638.)
without reference to their relation to any
issue. Witty v. C. & O. R. R. Co., 83
Ky. 21; Berry v. Pusey, 80 Ky. 160; Im-
perial Ins. Co. V. Klernan, 83 Ky. 468.
(5) Special verdict to coatroL Where
special findings are directed, it should be
to every fact necessary to make out a
cause of action or defense ; if they are
complete they must control, and the
court will not look to the general verdict
or the instructions that may have been
given to the jury. The questions of law
may be reserved by the court until after
verdict. L. «fc N. R. R. Co. v. Brice, 84
Ky. 298 ; Adams v. L. & N. R. R. Co., 82
Ky. 603.
§ 228. Qeoeral and special verdict If a
general and a special verdict are incon-
sistent, judgment shall be rendered pur-
suant to the latter, but the judgment
should be rendered on the general verdict
when the special findings are not incon-
sistent with the general verdict. A bill
of evidence is not necessary to enable the
court to determine whether or not a gen-
eral and a special verdict are inconsist-
ent. Quaid V. Cornwall, 13 Bush 601 ; see
Gailbraith v. Arlington Ins. Co., 12
Bush 29.
§ 129. Jniy to assess amoiuit of recovery
— eiceptioiis to rale. Questions of value
and damages are questions of fact, and
as a rule in cases involving such ques-
tions the jury must assess the amount of
recovery^ but in an action on a note
where the only defense was usury and
verdict was, •* we of the jury find for the
plaintiff," a judgment for the amount of
the note and interest was proper. Cooper
V. Poston, 1 Duv. 92 ; and see Brannin v.
Poree, 12 B. M. 506, and see notes 1-5 to
sec. 126.
$330. (1) Verdict and indsnent in ac-
tion for recovery of property. In an action
for the recovery of specific personal
property, the jury should fix in their
verdict the value of the property and the
damages for its detention ; and the judg-
ment should be in the alternative for the
return of the property or its value in case
a return can not be had, and damages
for the taking and withholding of the
property. Rogers v. Bradford, 8 Bush
163 ; Young v. Parsons, 2 Met. 499 ; Bates
v. Buchanan, 2 Bush 117 ; Strubbee v.
C. R. W. Co., 78 Ky. 481 ; and see notes
to sec. 181.
(2) To authorize a jury to assess dam-
ages for property illegally taken and de-
tained, there should be some evidence of
the value, or some description of the
property, to enable the jury to determine
the value from their own knowledge.
Pharis v. Carver, 13 B. M. 237.
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ARTICLE 3.
TRIAL BT THB COUBT.
§ 331. Actions in tort — eflfect of trial by court.
§ 332. Law and facts to be separately stated.
§ 331 [!•!] Actions in tort — effect of trial by court 1. In an action for an
injury to the person or character of the plaintiff, the parties may, with
the consent of the court, waive a jury trial, by written consent, in
person or by attorney, filed with the clerk ; or, by oral consent in
court, entered on the record.
2. If a jury trial be not demanded, or be waived, the court shall
decide the issues, and make such assessments of value, damage or
amount of recovery as it would have been the duty of a jury to make ;
and the finding of the court shall have the same effect as that of the
jury would have had. {Form of capias ad satisfaciendum^ page 639)
§ 332 [S6S] Law and facts to be separately stated. Upon trials of questions
of fact by the court, it shall not be necessary for the court to state its
$331. (1 ) Court, trial by— motion for new
trial. In a common law action, where the
law and facts are submitted to the court,
a motion and grounds for a new trial are
necessary in order to bring before the
Appellate Court any errors committed by
the court during the progress of the trial.
Helm V. Coffey, 80 Ky. 176 ; Henderson v.
Dupree, 83 Ky. 678 ; Harper v. Harper,
10 Bush 447; see further, 95 Ky. 60.
(2) Jndsment— how refarded. When the
law and facts are submitted to the court,
every fact which goes to support the
judgment must be assumed to have been
found in favor of the party for whom
judgment was given, and every fact as to
which the evidence is conflicting must
be assumed to have been found against
the adverse party. Coleman v. Meade,
13 Bush 358 ; and see note 1, sec. 10.
(3) The submission of the law and facts
to the court clothes the court with all the
rights and functions of a j ury in determin-
ing the facts, and in the assessment of
damages ; and the judgment will not be
disturbed upon the ground that it is
against the evidence for any less reason
than would authorize the setting aside of
the verdict of a jury. Baum v. Win-
ston, 3 Met. 127 ; Mulholland v. Sam-
uels, 8 Bush 63.
(4) See notes 1-5, inclusive, to sec. 126
as to assessment of value and damages
by the court.
(5) Waiver of Jury trlaL Waiver of a
trial by jury should appear in the entry
submitting the facts to the court ; or it
may be inferred from an entry showing
that the court heard testimony and pro-
nounced judgment thereon ; but such in-
ference can not be indulged in where
nothing appears but a judgment by de-
fault. Clarke v. Seaton, 18 B. M. 226. It
was held that where a party appeared
and filed an insufficient answer, the fail-
ure to plead further was not a waiver of
his right to a trial by jury. Burgess v.
Jacobs, 14 B. M. 517. But the transfer
of a case by consent to the equity docket
is a waiver of a trial by jury. Smith v.
Moberly, 15 B. M. 70.
(6) Weigbt given to indfment Where the
law and facts are submitted to the court,
its findings of facts are to be treated as the
verdict of a properly instructed jury,
and will not be disturbed unless palpably
against the evidence. Bell v. Wood, 87
Ky. 56 ; and see note 1 to sec. 10.
§332. (1) Stating separately law aad
facts ~ practice. The section of the Code
requiring the court to state separately
the law and facts does not relate to the
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TITLE IX] EXCEPTIONS. 185
finding, except, generally, for the plaintiff or defendant, unless one
of the parties request it, with the view of excepting to the decision
of the court upon the questions of law involved in the trial ; in which
case the court shall state in writing the conclusions of fact found,
separately from the conclusions of law. (Form ofjudgment^page 647.)
ARTICLE 4.
EZCBPTIONS.
§ 333. Exception — ^how taken— objection when necessary.
§ 334. Exception when to be taken — time to prepare bill.
§ 335. Bill of exceptions — how prepared.
§ 336. Entry of exception on record — when sufficient.
§ 337. Bill of exceptions— time to prepare — bystander's bill.
§ 338. Error not substantial disregarded.
§ 339. Certificate of Judge to bill.
§ 1^ [S68J Exception — liow taken — objection wlien necessary. 1. An excep-
tion is an objection taken to a decision of the court upon a matter of
law.
trial of provisional remedies. Francis v.
Burnett, 84 Ky. 24 ; Haynes v. Wiley, 12
R. 399. See further, 95 Ky. 60.
(2) When the court upon request states
separately its conclusions of law and
fact, there must be an exception to the
conclusions of law; a motion for a new
trial, in the absence of such exception,
will not cure omission. American Aid
Society v. Bronger, 91 Ky. 406.
(3) When neither the law nor the facts,
nor both combined, authorize the judg-
ment, no separation is necessary. Com.
V. King, 86 Ky. 436 ; nor is it necessary
to separate conclusions of law and fact
in an equity case. Hartford Ins. Co. v.
Haas, 87 Ky. 531 ; nor when an agreed
state of facts is submitted to the court.
City of Owensboro v. Weir, 95 Ky. 158.
§333. (1) Ameadment An exception
taken to the filing of an amendment that
is allowed to be filed without objection is
not available ; objection should have
been made to the filing. Helbum v.
Moflford, 7 Bush 169.
(2) Demarrer. An error in overruling
a demurrer must be excepted to at the
Ume. Beaven v. Phillips, 83 Ky. 88.
(3) Depositioag. When an exception
goes to the whole of a deposition, and
some of it is competent, it should be
overruled. L. & N. R. R. Co. v. Graves,
78 Ky. 74 ; see further, sec. 586.
(4) When depositions are excepted to,
it must appear that the exception was
acted on, or it will not avail. Corn v.
Sims, 3 Met. 391 ; Lewis v. Wright, 3
Bush 311 ; Walrath v. Viley, 1 Bush 266.
(6) Evidence. A party must object to
the introduction of incompetent evi-
dence, and, if it is allowed over his
objection, must except to it at the time,
or the error is waived. Crabb v. Larkin,
9 Bush 154 ; Helburn v. Mofford, 7 Bush
169; Russell v. Marks, 3 Met. 37; L. &
N. R. R. Co. V. Graves, 78 Ky. 74 ; where
an objection was entered to the admission
of evidence, and at the close of the evi-
dence the bill of exceptions stated " to
all of which the defendant excepted,"
held sufficient exception. L. & N. R. R.
v. Ritter, 85 Ky. 368.
(6) A decision of the court in exclud-
ing testimony must be excepted to at
the time, or the error is waive<^. Terrill
V. Jennings, 1 Met. 450.
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186 EXCEPTIONS. [title IX
2. A party may, without a previous objection, except to a decis-
ion against him, unless it be made at the instance of the adverse
party.
3. But a party can not except to a decision made at the instance
of the adverse party, unless objection shall have been made to the
motion, offer or request of the adverse party. {Exceptions to depo-
sitionSy how takeUy sees. 686, 687.)
§ IH [S64] Exception when to be taken — time to firepare bill. The party ob-
jecting must except when the decision is made ; and time may be
given to procure a bill of exceptions, but not beyond a day in the
succeeding term, to be fixed by the court. {Form of bill, page 646.)
(7) Pinal orders need not be excepted to.
Final judgments, whether upon issues of
law or fact, need not be excepted to.
Where a demurrer to an answer is sus-
tained and judgment rendered against
the defendant, or where a peremptory
instruction is given, no exception is
necessary. Coffman v. Wilson, 2 Met.
542; Oraycraft v. Duncan, 6 R. 651;
Loving V. Warren Co., 14 Bush 316. Nor
is it necessary to except to a void order.
Smith V. Blakeman, 8 Bush 476.
(8) loBtmctions — exceptloos to. Al-
though instructions may be objected to,
if no exception is taken to the action of
the court in giving them, their correct-
ness can not be questioned. L. & N.
R. R. Co. V. Graves, 78 Ky. 74 ; Cox v.
Winston, 8 Met. 577 ; Reed v. Com., 7
Bush 641 ; Garrot v. Ratliff, 83 Ky. 384.
(9) The exception to an instruction
must be taken at the time it is given,
and the circuit court can not adopt any
rule of practice in contravention of the
provisions of the Code requiring excep-
tions and objections to be taken and
made as therein directed. Kennedy v.
Cunningham, 2 Met. 538; Letton v.
Young, 2 Met. 558.
(10) An objection must be made to the
giving of an instruction on the motion of
the adverse party, as well as an exception
taken if it is given, or the error will not
be considered. Loving v. Warren Co.,
14 Bush 316; Long v. Hughes, 1 Duv.
387 ; Forest v. Crenshaw, 81 Ky. 51.
(11) Objectloo aad exception. Unless an
objection is first made, an exception to a
decision made at the instance of the ad-
verse party is unavailing. Loving v*
Warren Co., 14 Bush 316.
(12) Peremptory iastroctloB— neither an
objection or exception is necessary to
enable a party to complain of. Loving
v. Warren Co., 14 Bush 316 ; 2 Met. 542.
(13) Rple of coart that exception need
not be taken at time is not valid. Ken-
nedy V. Cunningham, 2 Met. 538.
(14) Waiver of error. Neither party
can rely for reversal upon an erroneous
decision made at the instance of the ad*
verse party unless he objected to the mo-
tion or oflfer of the adverse party at the
time it was made, and then excepted to
the decision ; but where the court acts
upon its own motion an exception alone
is sufficient. Branson v. Com., 92 Ky.
330.
{(334. (1) Bill can ootlie filed is vacatioi.
A bill of exceptions can not be filed in
vacation in the clerk's office, nor at any
time except during term time. Nor can
this rule be changed by an order of
court ; and it is questionable if by agree-
ment of parties, entered of record, a bill
filed in vacation can be considered.
Allard v. Smith, 2 Met. 297; Freeman v.
Brenham, 17 B. M. 603; and see Van-
dever v. Griffith, 2 Met. 425; Corley v.
Evans, 4 Bush 409.
(2) Deatli off one of tlie parties liefore IriU
filed. The death of the appellee before
the time allowed for filing the bill of ex-
ceptions will not prejudice the appellant
if his bill be tendered within the time
allowed ; although there may have been
no revivor. Hay den v. Ortkeiss, 83 Ky.
396.
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TITLE IX] BXCBPTIONS. 187
jTf the judge of said court, for any eause, does not preside at the
said term of the oourt, or no court is held, then the party ottering
the bill of exceptions shall have until the next term of the court
to perfect and prepare the bill of exceptions.] ( Words in brackets
added by act 1886. Form of bill, pages 645 , 646.)
(3) Jeffenoo Court of Common Pleas.
The Jefferson Ckjurt of CJommon Pleas
has the same power over its judgments
for sixty days that the circuit courts
have during the term. If under any cir-
cumstances the court is authorized to ex-
tend the time to file a bill to a day beyond
a period of sixty days from the judg-
ment, it can not be filed after the day so
fixed if no notice is taken of the matter
on that day. Bailey v. Villier, 6 Bush
27. If time be extended by that court
beyond sixty days from date of judg-
ment, and the bill is filed within the time
allowed without objection, the error, if
any, will be regarded as waived. Down-
ing V. Bacon, 7 Bush 680 ; see further,
Johnson v. Stivers. 95 Ky. 128; holding
that not more than one hundred and
twenty days can be allowed after judg-
ment to file bill.
(4) None pro tiiac order that ** the par-
ties came by their attorneys, and it ap-
pearing at the trial of this cause at the
last term of this court the court allowed
defendants time to prepare a bill of ex-
ceptions," and thereupon **the bill was
filed as part of the record," was invalid,
as no time had been given at a former
term to file the bill. Vandever v. Grif-
fith, 2 Met. 425.
(5) Ptndoacy of motioa for new trial-—
effect of. The time for filing a bill of ex-
ceptions is reckoned from the overruling
of the motion for a new trial, and not
from the rendition of the judgment on
the verdict, and the court has no power
pending the motion for a new trial to
prescribe the time within which the bill
of exceptions shall be filed ; and where
a judgment was rendered at the March
term, 1873, and the motion for a new trial
not finally disposed of until the March
term, 1874, a bill of exceptions filed dur-
ing latter term was in time. Harper v.
Harper, 10 Bush 447.
(6) Record most show time was given. If
time is given in which to prepare and
file a bill of exceptions, the record must
show that the time was given, or it can
not be filed, although by neglect or over-
sight the order giving time was not
made. Vandever v. GriflBth, 2 Met. 425 ;
Linch V. Reynolds, 6 Bush 547.
(7) Special Jndse. When a special
judge, who has tried a case, extends time
for filing bill to a day in next term, and
is not present on that day, the party who
then tenders bill is entitled to have offer
to file continued to succeeding term, and
then have bill signed by special judge.
McFarland v. Burton, 89 Ky. 294.
(8) Stenosrapher's report of testimony. It
was held in McAllister v. Conn. Life Ins.
Co., 78 Ky. 531, that the stenographer's
report of evidence, unless identified in
the bill of exceptions, would not be re-
garded as part of the record, but see
now, as to stenographers in certain coun-
ties, Ky. Stat., sec. 4637.
(9) Tender of bill to Indge is equivalent
to filing, and it may be tendered to him
before day fixed for filing, and be filed
by him subsequent to that day. Meaux
V. Meaux, 81 Ky. 475.
(10) Time to file bill of exceptions. The
defendant was given until the third day
of the succeeding term to prepare and
file a bill of exceptions. On that day no
notice was taken of the matter, and on
the fourth day an order was made
extending the time in which to file bill
to the eighth day. Qn motion the bill
was stricken from the record. The bill
should have been filed on or before the
third day, or further time to a day cer-
tain given on that day. L. & N. R. R.
Co. v. Turner, 81 Ky. 489. See Freeman
V. Brenham, 17 B. M. 603.
(11) Time was given until a day in the
next term to file bill of exceptions, and
on the day specified an order was made
ffiviTig further ihne. Two days afterward
the bill was filed. The bill was not con-
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188
EXCEPTIONS.
[title IX
§ 3^ [S65] Bill of exceptioiis — bow prepared. 1. No particular form of
exception, or bill of exceptions, is required. *A party must not,
except as hereinafter provided, state the evidence, but must state the
material facts which the evidence conduced to prove ; and, if the
exception be to a decision admitting or excluding testimony, or con-
cerning its meaning or effect, so much of the evidence as is necessary
to explain the exception, and no more, shall be stated.
sidered as part of the record. When
time is given until a day in the next
term to file a bill, an order may be made
on the day specified extending the time
to another day certain in the term ; and
for sufficient reasons, further extensions
may be given from one day certain to
another day certain during the term.
Smith V. Blakeman, 8 Bush 476. See
Meadows v. Campbell, 1 Bush 104.
(12) When time is given to a day in
the next term to file bill of exceptions,
it may be filed during that term and
before the day specified. When a bill
is tendered in court and taken for con-
sideration by the judge, it is to be
regarded as filed on the day it is tendered.
Meaux v. Meaux, 81 Ky. 475 ; White v.
Allen, 10 R. 1025 ; and the orders should
state the facts. Nance v. Newport News
R. R., 13 R. 554.
(13) A bill of exceptions, showing
by a memorandum of the clerk, but
not an order of court, that it was filed
in time, will not be considered. Padget
v. Mays, 2 R. 213.
(14) Giving time to file bill of excep-
tions does not operate to stay proceedings
on the judgment. Wright v. Woolfolk,
14 Bush 308.
(15) It was held in Wright v. Wool-
folk, 14 Bush 308, that extending time to
file bill of exceptions did not extend time
to file assignment of errors and schedule
or prevent their being filed within time
required by Code.
(16) Delay without excuse, from week
to week, for six months in preparing bill of
exceptions, is sufficient reason for refus-
ing to consider it over objection of adverse
party. Schneider v. Hesse, 11 R. 433.
(17) Time must be givien to prepare
the bill at time exception is taken. 2
Met. 425; and when time is given it
must be to a certain day. Smith v.
Blakeman, 8 Bush 476 ; 05 Ky. 128.
I 33S. (1) Absence of MO of ezceptkMW
— only sufficiency of pleadings to support
the verdict can be considered, and every
presumption will be indulged that the
pleadings authorize. Martin v. Richard-
son, 14 R. 847.
(2) Bill of excefrtioai — whea aot necessaiy.
Where a verdict for the plaintiff is set
aside and a judgment entered for de-
fendant on the ground that the petition
does not state a cause of action, a bill of
evidence is not necessary to enable the
Court of Appeals to consider the suf-
ficiency of the petition, and reverse the
case if a reversal is proper. Johnson v.
Louisville R. W. Co., 10 Bush 231.
(3) Bill of exceptions— requisites of. A
positive or direct statement in the bill
that it contains all the evidence, or all
the instructions given or refused, is not
essential to make the bill complete.
When an appeal is prosecuted upon an
issue of fact and the law applicable
thereto, and reversal is asked because the
verdict is not sustained by the evidence,
the bill should contain all the evidence in
detail, and each and every instruction
given or refused to which an exception
was taken. If the objection to the judg-
ment is not want of evidence to support
the verdict, but because of the admission
or rejection of testimony, the material
facts must be stated that the evidence
conduced to establish. The presumption
will be in favor of the truth of the bill,
and the affidavits of counsel will not be
considered to destroy the verity of the
record as certified to by the judge. Gar-
rot V. Ratlifl", a3 Ky. 384; Bracken Co.
V. Robertson Co., 6 Bush 69 ; Wing v.
Dugan, 8 Bush 583 ; and see further, note
18, and sec. 339 and notes thereto.
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TITLE IX]
EXCEPTIONS.
189
2. If the judge refuse to sign the bill of exceptions, as presented ;
or if the party wish to appeal upon the ground that the verdict is
not sustained by the evidence, it shall be stated in full, and the
bill of exceptions be presented to the judge. (See sec. 339.)
3. But if a number of instruments of substantially the same
character be used upon a trial it shall be sufficient to furnish a
copy of one of them in the bill of exceptions, accompanied by a
statement showing its resemblance to the others, and how many
such others were used on the trial ; and such copy and statement
shall have the same effect as if all of said instruments had been
copied in the bill of exceptions. (When writings fled as exhibits ar(
part of recordy sec. 128; form of bill, pages 64S, 646.)
(4) The bill of exceptions does not
state the facts which the testimony con-
duced to prove, when it only states that
** the evidence in the case was conflicting
and conduced to show the facts respect-
ively claimed by the parties in the
pleadings." The bill should stale the
material facts which the evidence con-
duced to prove. Beavens v. Phillips, 83
Ky.88.
(5) DepositioM used as evidence upon
trial can not be considered upon appeal
unless embraced in bill, or identified by
order of court. L. & N. R. R. v. Pinley,
86 Ky. 294 ; nor will depositions copied
Into the record, but not embodied in bill
of exceptions or read on trial, be con-
sidered. Harlan v. Howard, 79 Ky. 373.
(6) When depositions offered as evi-
dence are rejected, the record should
show that an exception was taken to the
ruling rejecting them, and the grounds
of objection, as well as the rejected
depositions, should be incorporated into
the bill of exceptions. Walrath v. VUey,
1 Hush 266; sec. 589.
(7) When two depositions are given by
a witness and one only is read, if both
are copied in the record, it should show
which one was read. Crabb v. Larkin,
9 Bush 154.
(8) When depositions have been regu-
larly taken and are lodged with record
and read on trial, they should be copied
as part of record although never indorsed
as filed. Long v. Kerrigan, 15 R. 65.
(9) EvMeoce rejected— bow made part of
record. When objection is made and
sustained to a witness answering a ques-
tion, the party offering the witness should
state to the court what he expected the
witness would state if permitted to
answer the question, and the record
should show it, or else the alleged error
in refusing the evidence can not be con-
sidered. Manion v. Lambert, 10 Bush
295 ; Bowler v. Lane, 3 Met. 312 ; Dicker-
son v. Talbot, 14 B. M. 60 ; L. C. & L.
R. R. Co. V. Sullivan, 81 Ky. 624.
(10) When a party objects to the
introduction of evidence, the record
should show his objections, and so much
of the evidence as is necessary to explain
the grounds of it. Easley v. Easley, 18
B. M. 86 ; and see, as to statements in
bill as to evidence, note 3.
(11) A bill of exceptions which shows
that it contains all the evidence is suffi-
cient, although it does not state in so
many words that it contains all* the evi-
dence. Bracken Co. v. Robertson Co., 6
Bush 69.
(12) In absence of any part of evidence
court will not consider any question re-
lating to the testimony offered or intro-
duced on trial. L. & N. R. R. v. Finley,
86 Ky. 294.
(13) Pacts appearing upon face of papers,
no bill of exceptions is neces.sary. Col-
lins V. Richart, 14 Bush 021 : 78 Ky. 531.
(14) Qronnds for new trial It is not
necessary that the motion and grounds
for a new trial should be copied into the
bill of exceptions. When the motion
and grounds for a new trial are filed by
order of court, and the order filing the
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190
EXCBPTIONS*
[title IX
§ 336 [8««] Entry of exception oo record — wheo safffcient If the decision
objected to be entered on the record, and the grounds of objection
appear in the entry, the exception may be taken by the party caus-
ing to be noted, at the end of the decision, that he excepts.
grounds, and the motion and grounds, are
copied into the transcript, there is no
necessity for including them in the bill
of exceptions. McAllister v. Ins. Co.,
78 Ky. 531.
(15) lastractloiis. Express statement in
bill that it contains all the instructions
is not required. If it shows that certain
instructions were asked by plaintiff and
defendant, and either given or refused,
in the absence of anything showing that
others were given or refused, bill will be
sufficient in this respect. L. & N. R. R.
V. Finley, 86 Ky. 294.
(16) An alleged error in giving or re-
fusing instructions can not be considered
in the absence of the testimony. Beaven
V. Phillips, 83 Ky. 88.
(17) A bill of exceptions is not neces-
sary to enable the Court of Appeals to
determine whether or not the general
and special verdicts are consistent or in-
consistent ; the pleadings, judgment and
instructions are all that is necessary.
Quaid V. Cornwall, 13 Bush 601.
(18) **The usual mode of making up
bills of exceptions is by the direction,
here insert instructions 1, 2, or instruc-
tions A, B, H, or instructions in the hand-
writing of the court or counsel, so as the
clerk can identify them, and when copied
into the* bill of evidence in the usual
form, the bill is complete and the instruc-
tions a part of record ; or when the court
directs the insertion of the instructions
without identifying them and the clerk
inserts the instructions, thereby making
the bill complete, this court will not
grant the writ of subpcena duces tecum
that the original bill may be inspected,
unless there is an affidavit that the in-
structions embodied in the bill were not
those offered, given or refused by the
court on the trial, and so with reference
to any exhibit made part of the bill of
evidence." Meaux v. Meaux, 81 Ky.
475 ; and see Forest v. Crenshaw, 81 Ky.
51 : and see further, note 3.
(10) When instructions found in the
record are not embraced in the bill of
exceptions, they will not be considered
(Meador v. Turpin, 4 Met. 94) unless
made a part of the record by an order of
court. Forest v. Crenshaw, 81 Ky. 51.
(20) Pleadint rejected— how made part of
record. When the record shows that an
amended pleading was not allowed to be
filed, unless it is made a part of the
record by an order of court, or by the bill
of exceptions, it can not be considered,
although copied into the record. Horst-
man v. C. A L. R. R. Co., 18 B. M. 218;
7 Bush 474; Johnson v. MiUer, 12 R. 82 ;
Sutton V. Pollard, 13 R. 85 ; McCain v.
L. & N. R. R., 13 R. 809.
(21) When amended pleadings offered
to be filed are rejected, the order should
show that they are made a part of the
record, and they should be identified
either by the order of court rejecting
them or by the certificate of the clerk
as the papers tendered and rejected.
Nolan v. Feltman, 12 Bush 119.
(22) Presmiirtioa. The Court of Ap-
peals will presume, in the absence of a
bill of exceptions, that the lower court
properly overruled a motion for a new
trial. Quaid v. Cornwall, 13 Bush 601.
(23) SteflOfmplier's report of the evi-
dence, although annexed to the bill of
exceptions, is not a part of it unless
identified in the bill and as part of it.
McAllister v. Ins. Co., 78 Ky. 531 ; but
see now Ky. Stat., sec. 4637.
(24) Writiflss — how made part of record.
Deeds, wills and other writings intro-
duced as evidence should be made part
of bill by entry on order book. Baker v.
Gilbert, 4 R. 621 ; or be copied into the
bill of exceptions, and it should show
that they were read as evidence. Vaughn
v. Mills, 18 B. M. 633 ; Haney T. Tem-
pest, 3 Met. 95 ; Duncan v. Brown, 15 B.
M. 186 ; see sec. 128 and note thereto, as
to when writings filed to be relied on as
evidence become part of the record.
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TITLE IX]
EXCBPTIONS.
191
§ 137 [seTj BiB of exceptions — time to prepare — bystander's bill. 1. If the
deciBion be not entered on the record, or the grounds of objection
do not appear in the entry, the party must prepare his bill of excep-
tions and present it to the judge for his signature.
2. Exceptions taken during the trial need not be noted of record,
nor reduced to writing, unless by order of court, until after the
trial. [During the term at which the judgment becomes final] the
party excepting shall, unless further time be given him, prepare
his bill of exceptions, which shall include all the decisions of the
court excepted to, in consecutive order; and, if he except to a
decision of the court in granting or refusing any instruction, all
the instructions given and refused shall be also included. ( Words
in brackets inserted by act 1878. Form of billy pages 64Sy 646.)
3. If the bill of exceptions be approved by the judge, he shall
sign it, and it shall be filed as part of the record, but not spread at
large on the order book. If not approved, he shall correct it, or
§ 337. (1) Bystander's bilL The truth
of what the judge states or certifies as
th& bill of evidence may be controverted
by the affidavits of bystanders in the
form of a bill of evidence, but when he
certifies as to his own ruling and excep-
tions taken during the trial, neither his
statements, nor the truth of the record
as made up, can be assailed by bystand-
ers. Garrot v. Ratliff, 83 Ky. 384; Pat-
terson V. Ck)m., 86 Ky. 313.
(3) Where the judge who presides at
trial presides when motion for new trial
is disposed of, a bystander's bill can not
be prepared as provided in subsection 5.
Deils V. Brown, 2 R. 214.
(3) Bill of exceptions signed by by-
standers will not be considered where it
is apparent that if bill had been pre-
pared in time judge would have signed
it. In this case preparation of bill was
delayed from time to time for six months.
Schneider v. Hesse, 11 R. 433.
(4) Where the trial judge refuses to
sign any bill of exceptions the appellant
may make up a bill and have it certified
by bystanders. Ck)m. v. Hourigan, 89
Ky. 305.
(5) Jurors trying a case are " bystand-
ers." An exception, the truth of which
is attested by bystanders, need not con-
tain anything except the particular mat-
ter about which there is difference.
Dawson v. L. & N. R. R., 6 R. 659.
(6) Jadge most t\%tL bill of exceptions or
it will not be considered on appeal. Stan-
ford V. Parker, 12 R. 878.
(7) Time to prepare bill of exceptions.
The provision in this subsection that
*• at the close of the trial the party ex-
cepting shall, unless further time be
given him, prepare his bill of excep-
tions," means that the party excepting
shall reduce his exceptions to writing,
or ask for the necessary extension of time
during the day on which the trial ter-
minates or the judgment becomes final.
If a motion for a new trial is made, the
judgment becomes final on day it is over-
ruled. Scott V. Burrows, 13 Bush 450 ;
Yeatman v. Day, 79 Ky. 186; but see
now amendment to subsec. 2.
(8) If further time be given to file a
bill of exceptions, and the absence of the
judge who presided at the trial prevents
it being signed by him within the allotted
time, then it should be certified by by-
standers. Hayden v. Ortkeiss, 83 Ky.
396.
(9) The death of the appellee before
the time allowed in which to file bill of
exceptions does not prejudice the adverse
party ; he should tender his bill within
the time allowed. 83 Ky. 396.
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192 EXCEPTIONS. [title IX
suggest the correction to be made, and sign it. A party objecting
to the judge's correction of an exception which purports to state
the evidence may, within five days after the bill is signed, file the
exception, as written by him, if its truth be attested by the affida-
vits of two bystanders ; but its truth may be controverted and
maintained by other affidavits filed in the clerk's office, not exceed-
ing five on either side.
4. Affidavits controverting an exception not signed by the judge
must be filed in the clerk's office, and notice of the filing given,
within fifteen days after the filing of such exceptions ; and affida-
vits sustaining such exception must be filed within fifteen days
after such notice.
5. If the judge who presided at the trial do not preside when a
motion for a new trial is overruled, the bill of exceptions may be
certified by bystanders, and be controverted and maintained, pur-
suant to the provisions of subsections three and four of this section.
§ 338 [>••] Errors not snbstaotial disregarded. No exception shall be
regarded, unless the decision to which it relates be prejudicial to the
substantial rights of the party excepting. (Same provision in sees.
ISi, 756)
§ 339. Certificate of judge to bill. In cases in which, by subsection two
of section three hundred and thirty-five, the evidence is required to
be stated in full, the judge shall certify in the bill of exceptions that
it contains all the evidence. In all other cases, he shall certify that
the bill of exceptions is true.
(10) Where the judge who tries case when the judge certifies as to his own
extends time to day in next term to pre- rulings, and exceptions taken during the
pare bill of exceptions and is not present progress of the trial, we know of no
on that day, party may on that day ten- practice that authorizes his statements,
der his bill in court and have time con- or the verity of the record as made up,
tinned to succeeding term for judge to to be assailed either by bystanders or the
sign bill. McFarlan v. Burton, 89 Ky. affidavits of parties interested in the liti-
294. gation." Garrott v. Ratliff, 83 Ky. 384,
g 3J9. (1) Sisnins bill by jadse — effect Patterson v. Ck>m., 80 Ky. 313, and notes
of. The signing of the bill by the to sec. 335.
judge is in substance certifying that it (2) As to a statement appended by judge
contains all the evidence ; or that the to bill of exceptions after he had signed
bill of exceptions is true, when all the and approved it the court say that ** if
evidence is not embraced in it ; and the bill correctly set forth the evidence,
affidavits of counsel will not be consid- it was the duty of the judge to sign it;
ered for the purpose of impeaching the if it did not conform to the evidence it
verity of the record, as certified by the was his duty to correct it and then sign
judge. **The truth of what the judge it," and after he has signed the bill his
certifies as the bill of evidence may be statement subsequently written and ap-
controver ted by the affidavits of bystand- pended is unauthorized and will not be
ers in the form of a bill of evidence ; but considered. Com. v. Patterson, 10 R. 167.
«
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ARTICLE 5.
NKW TRIAL.
§ 340. New trial defined — causes for.
§ 341. When not to be granted.
§ 342. Application for — when to be made.
§ 343. Motion and written grounds— affidavits.
§ 344. Grounds discovered after term — practice — divorce cases.
§ 340 is«9] New trial defined — causes for. A new trial is a re-examination
in the same court of an issue of fact after a verdict by a jury or a
decision by the court. The former verdict or decision may be vacated
and a new trial be granted, on the application of the party aggrieved,
for any of the following causes affecting materially his substantial
rights:
§ 340. (]) Accideat— sarprise. Known
defenses must be pleaded, and the court
will not grant a new trial to allow par-
ties to avail themselves of a defense
known to them when judgment was ren-
dered. Dickinson v. Trout, 8 Bush 441.
See further sec. 518 and notes thereto.
(2) Although one of the appellant^s
counsel was prevented by sickness from
attending the trial, there was a lack of
diligence on the part of appellant in not
attending the trial, or providing other
counsel, and it does not appear that he
was prevented from defending the action
by any unavoidable casualty or misfort-
une. Landrum v. Farmer, 7 Bush 46.
As to unavoidable absence of attorney,
see further, Triplett v. Scott, 5 Bush 81;
of party see Yowell v. Gaines, 2 Bush
211.
(3) After judgment by default has
been rendered, if the defendant desires a
new trial on account of accident or sur-
prise, he should tender an answer pre-
senting a good defense. Hayman v. Hal-
iam. 79 Ky. 389.
(4) When a party seeks to have a judg-
ment set aside he should show that he
has not been guilty of any lack of dili-
gence. Alexander v. Lewis, 1 Met. 407.
(5) The fact that a witness testifies
contrary to what he did on a former
trial is not ground for a new trial. Ivers
v. Avery, 6 R. 220.
(6) When a party institutes an ordi-
(18)
nary action it is his duty to exercise or-
dinary diligence to inform himself when
it is set for trial and to be in attendance,
and neither accident nor surprise is cause
for setting aside judgment in the ab-
sence of such diligence. Ross v. L. &•
N. R. R., 92 Ky. 583; and see Chaffln v.
Fulkerson, 95 Ky. 277.
(7) A party who has prepared his case
for trial, but is prevented from attending
by the sudden and serious illness of his
child, is entitled to anew trial. Steel v.
Seale, 4 R. 42.
(8) An attorney prepared an answer
and, being compelled to leave the court,
left the answer with his associate counsel
to file, and he being unwell did not
attend court; judgment being rendered
by default a new trial was proper,
Reinicke v. Morse, 10 R. 767.
(9) Plaintiff and his attorney being
both absent from the court room when
judgment was rendered by default, it
was proper to grant a new trial, as it
appeared that the attorney was unexpect-
edly absent and the plaintiff a short
distance off waiting to be notified by his
attorney when case was called. C. <fe C).
R. R. V. Hickey, 15 R. 112.
(10) To entitle party to new trial on
ground of accident or surprise, it should
appear that the party has been injured
in his rights, as well as that his failure
to appear was caused by accident or mis-
fortune. Robinson v. Amann, 1 R. 320.
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194
NEW TRIAL.
[title IX
1. Irregularity in the proceedings of the court, jury or prevail-
ing party, or any order of the court, or abuse of discretion, by
which the party was prevented from having a fair trial.
(11) Discretion of coart in gnnilag a new
trial will be interfered with only in
exceptional cases, C. & O. R. R. v. Hick-
ey, 15 R. 112; Ivers v. Avery, 6 R. 230 ;
and only when there is a flagrant abuse of
discretion in granting a new trial will the
court reverse second judgment and direct
that first judgment be entered. L. &, N.
R. R. V. Coniff, 16 R. 296 ; Couadeau v.
Am. Accident Co., 95 Ky. 280 ; Caldwell
v. Bright, 8 B. M. 525 ; 3 J. J. M. 320.
(12) Errors most be specified. The
grounds relied on for a new trial must be
specifically set out. The general ground,
** because of errors of law occurring at
the trial and excepted to by the party
making the application," or **that ver-
dict is contrary to law," provided in sub-
sections 6, 8, not sufficient. The specific
error to which an exception was tak-en
during the trial must be mentioned.
McLain v. Dibble. 13 Bush 297; Slater v.
Sherman, 5 Bush 206 ; Com. v. Williams,
14 Bush 297; 7 Bush 235; Ohio Valley
Co. V. Kuhn, 9 R. 467 ; Jones v. Wocher,
90 Ky. 230.
(13) '* All that is necessary in any case
is to use such plain and intelligible lan-
guage in the grounds for new trial as
indicates, points out or shows to the
court, with reasonable and ordinary cer-
tainty, the particular errors which are
complained of, so as to enable the court,
by the exercise of proper attention, to
understand what errors are meant, and
to reconsider the facts or law out of
which they are alleged to have grown.
The law does not mean that the grounds
for new trial shall contain a particular
description of the errors relied on, but
that the particular errors shall be simply
pointed out or indicated in a common-
sense way." L. & N. R. R. Co. v. McCoy,
81 Ky. 403; Meaux v. Meaux, 81 Ky. 475.
(14) While the general statement that
verdict is against law and evidence is not
sufficient, yet when the lower court has
granted a new trial upon such a state-
ment the court will not reverse the second
judgment and direct first to be entered
for the reason that the grounds upon
which new trial was granted were insuf-
ficient. L. & N. R. R. Co. V. Coniff, 16
R. 296.
(15) Excessive damages — remitter of
Indsment It has been repeatedly held
by the court that a new trial would not
be granted b<»causeof excessive damages,
unless the damages should be so great as
to strike the mind at first blush as having
been superinduced by passion or preju-
dice. L. & N. R. R. V. Mitchell, 87 Ky.
327 ; Standard Oil Co. v. Tierney, 92 Ky.
367 ; Letton v. Young, 2 Met. 558. and
see Kountz v. Brown, 16 B. M. 577 ; M.
6 L. R. R. Co. V. Herrick, 13 Bush 122;
Shirley v. Billings, 8 Bush 147 : L. & N.
R. R. Co. V. Fox, 11 Bush 495 ; L. & N.
R. R. Co. V. Long, 94 Ky. 410 ; 2 Met. 119 ;
83 Ky. 129 ; 83 Ky. 675 ; in 94 Ky., page
411, and 92 Ky., pages 369, 370, will be
found cited numerous cases on question
of excessive damages.
(16) When a verdict is flagrantly
against the evidence, the court can not
refuse a new trial, because party remits
part of judgment ; but if error in amount
recovered is caused by an erroneous
instruction, so much of the judgment as
was due to such instruction, if it can be
ascertained, may be remitted and remain-
der allowed to stand. Merrick v. Holt,
7 R. 758.
(17) When a party undertakes to pre^
vent a new trial by remitting a portion
of the judgment obtained by erroneous
instructions, he is bound to remit so
much as will show the court that the
defendant can not be prejudiced by
refusing the new trial asked for, and
that the amount retained is clearly sus-
tained by the proof. Masterson v. Hagan,
17 B. M. 325.
(18) In an action for malicious prose-
cution the plaintiff recovered a verdict
for $4,000, the defendant filed grounds
and moved for a new trial, the judge
announced that he would grant a new
trial unless the plaintiff would accept
$1,000 ; the plaintiff agreed to this, and
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2. Misconduct of the jury, of the prevailing party, or of his
attorney.
3. Accident or surprise which ordinary prudence could not have
guarded against.
the motion for a new trial was overruled.
The court say : •* Courts have often
granted new trials on equitable condi-
tions prescribed to the applicant, but
we know no precedent for overruling a
motion for a new trial on terms required
of the party opposing it. Tn this instance
the court virtually assessed the damages,
and thereby deprived each party of his
right to an assessment by the jury.
This seems to be error to the prejudice
of the defendant, if he was entitled to a
new trial, and to the plaintifTs prejudice
if the defendant was not entitled to a
new trial." Brown v. Morris, 3 Bush 81 ;
L. & N. R. R. V. Earl, U Ky. 368 ; Mer-
rick V. Holt. 7 R. 758.
(19) Qroands shoiiid be filed by order of
coart Motion and grounds for a new
trial should be filed by order of court,
entered on the order book and should
also be indorsed filed. When this is
done the motion and grounds become a
part of the record when copied into the
transcript, and it is not necessary to in-
clude them in the bill of exceptions.
McAllister v. Ins. Co., 78 Ky. 531.
(20) Irregnlarity of jadse, jary or party.
After the jury had retired for consulta-
tion, one of the witnesses, who had been
examined on the trial, was sent for by
them, admitted into the jury room and
re-examined without the knowledge of
the court or parties. Held that although
he was the witness of the party seeking
the reversal, the misconduct of the jury
authorized a new trial. Lutrell v. M. &
L. R. R. Co., 18 B. M. 291 ; and see 3 Mon.
411.
(21) That juror was on jury that had
tried the case at a former term is not
cause for a new trial. The objection to
him should have been made before the
jury was sworn, or before the jury had
retired, if not discovered before that
time. Fitzpatrick v. Harris, 16 B. M.
561.
(22) Affidavits of jurors can not be
received to impeach their verdict for
misbehavior in themselves or their fellow
jurors. Allard v. Smith, 2 Met. 297 ; as
to when jurors will be allowed to explain
their verdict or correct mistake in it,
see Alexander v. H umber, 86 Ky. 565 ;
Johnson v. Davenport, 3 J. J. M. 396.
(23) An affidavit of a juror is not com-
petent evidence to show that the verdict
was the result of an agreement that such
a verdict should be rendered as was
favored by a majority of the jury.
Lucas V. Cannon, 13 Bush 650; 3 Mon.
411 ; and see Cain v. Cain, 1 B. M. 214,
as to when partiality of juror is grounds
for new trial.
(24) It is a well-settled principle, ap-
plicable to the conduct of all juries, that
the testimony of the jurors is not com-
petent to explain the grounds of their
decision, or to Impeach the validity of
their findings. Com. v. Skeggs, 3 Bush 19;
Johnson v. Davenport, 3 J. J. M. 396.
(25) When the court rules that de-
fendant has burden of proof and requires
him to introduce his evidence first, and
afterward gives the plaintiff conclusion
of argument, defendant is entitled to a
new trial. O'Connor v. Henderson Bridge
Co., 95Ky. 693.
(26) Denial of concluding argument to
party who has burden of proof is revers-
ible error. Royal Ins. Co. v. Schwing,
87 Ky. 410 ; Lucas v. Hunt, 91 Ky. 279.
(27) Where the defendant, in passing
near one of the jury during the trial,
said in his hearing, *' Don't hang," it was
an Insult to the juror, a contempt of
court and cause for a new trial. Camp-
bell V. Bannister, 79 Ky. 205.
(28) As to correspondence between the
judge and jury, after they had retired
for consultation concerning a point at is-
sue in the case, see Goode v. Campbell,
14 Bush 75 ; as to improper statement by
judge to jury to induce them to make a
verdict, see Randolph v. Lampkin, 90
Ky. 551.
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196
NEW TRIAL.
[title IX
4. Excessive damages, appearing to have been given under the
influence of passion or prejudice.
5. Error in the assessment of the amount of recovery, whether
too large or too small, in an action upon a contract, or for the
injury or detention of property.
(20) Instrnctioiis. ** Grounds which
merely state that the court erred in giv-
ing or refusing instructions is sufficient
to raise any and all questions upon this
point, but where the party expressly in-
dicates the giving or refusal of certain
instructions as error and names none
others, either expressly or in a general
way, he will be confined to them."
Johns V. L. & N. R. R., 10 R. 757;
Bland v. Gaither, 10 R. 1033.
(30) Where one ground for new trial
was that court erred in giving certain
designated instructions, and another
ground was that court erred in giving an
instruction as to compensatory damages,
this latter instruction can be consid-
ered on appeal, although it was omitted
in first ground. L. & N. R. R. v. Mor-
ris, 14 R. 460.
(31) Motion for— not necessary to nuUn-
tain appeal. Neither a motion for a new
trial nor bill of exceptions is necessary
to enable the unsuccessful party to main-
tain an appeal. The only office of a mo-
tion for a new trial and a bill of excep-
tions is to bring before the court for re-
vision matters which would not other-
wise appear. When an appeal is prose-
cuted from a judgment on a verdict, or
the judgment of the court when the law
and facts are submitted to it, without a
motion for a new trial and a bill of ex-
ceptions, nothing is before the court ex-
cept the pleadings, verdict and judg-
ment. Harper v. Harper, 10 Bush 447 ;
McAllister v. Ins. Co., 78 Ky. 531 ; 80 Ky.
176; 82 Ky. 678; Owensboro R. R. v.
Barker, 15 R. 175; nor is motion for neces-
sary when a peremptory instruction has
been given. Loving v. Warren Co., 14
Bush 316; 2 Met. 542 ; nor when plead-
ings are not sufficient to support verdict.
15 R. 175.
(32) But '* on an issue and trial of a
fact by a jury, a motion for a new trial
Is essential to correct the errors growing
out of the evidence or instructions."
Deth'erage v. Montgomery, 4 Bush 46;
Humphrey v. Walton, 2 Bush 580.
(33) Motion tor— suspends |ndsment A
motion for a new trial suspends the
judgment, and may be continued and
passed on at the subsequent term. But
a motion to set aside an order overruling
a motion for a new trial does not suspend
the judgment. There is no authority
for a motion to rehear a motion for a
new trial. Louisville R. & L. Co. v.
Kerr, 78 Ky. 12 ; and see Harper v. Har-
per, 10 Bush 447.
(84) Newly discovered evidence. '*The
general rules governing applications for
new trials upon the ground of newly dis-
covered evidence are: 1. That *the
names of the witnesses who have been
discovered ' must appear. 2. That the
party has been vigilant in preparing his
case for trial. 3. That the new facts
were discovered after the trial and would
be important. 4. That the evidence dis-
covered will tend to prove facts which
were not directly in issue on the trial or
were hot then known, nor investigated
by the proof. 5. That the new evidence
is not merely cumulative.'* Price v.
Thompson, 84 Ky. 219.
(35) The affidavit of the plaintiff's at-
torney, that he did not know of the ex-
istence of a city ordinance material as
evidence in the case until after the trial,
is not sufficient to authorize a new trial.
Babbitt v. Woolley, 3 Bush 703; and see
McCown V. Maklin, 7 Bush 308 ; Rhodes
V. City of Henderson, 2 R. 228.
(36) The fact that a party does not
know of the evidence by which he can
establish his defense does not excuse him
from presenting the defense. A defense
of which the defendant must have had
knowledge, if it was true, not relied on,
or presented on the trial, can not be made
available on a motion for a new trial.
Mason v. Mason, 5 Bush 187.
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6. That the verdict or decision is not sustained by sufficient evi-
dence, or is contrary to law.
7. Newly discovered evidence, material for the party applying,
which he could not, with reasonable diligence, have discovered and
produced at the trial.
(37) Where a party discovers testimony,
oven after the argument has commenced,
and it can then be given, it is his duty
to ask that it be heard, and if he fail to
offer it, it is no ground for a new trial ;
nor can a party get a new trial on the
ground that he has discovered testimony
that would strengthen his case. Fleet
V. Hollenkemp, 13 B. M. 2m
(38) Cumulative evidence is not suffi-
cient to authorize a new trial. Mason v.
Mason, 5 Bush 187; Allen v. Perry, 6
Bush 85 ; Bell v. Oflfut, 10 Bush 633.
(39) When the ground for a new trial
is newly discovered evidence, affidavits
must be filed to sustain it. Slone v.
Slone, 2 Met. 339 ; sec. 343.
(40) In an action to enforce a vendor's
lien the defendant alleged want of title
and asked a rescission and the rescission
was granted ; soon afterward the plaintiff
discovered a deed that perfected his title,
and filed a petition for a new trial, alleg-
ing that the index to the deed book in
which the deed was found had been lost
or destroyed, and after a diligent search
he did not discover the deed until after
the judgment ; held that he was not
bound to do more than to search for the
deed in the usual way by the aid of the
indexes, and a new trial should have
been granted. Elliott v. Harris, 81 Ky. 470.
(41) To entitle a party to a new trial
on the grounds of newly discovered evi-
dence, it must not only have been dis-
covered too late to have been used upon
the trial, but must have been of such a
nature or so concealed that it could not
have been previously discovered by the
use of reasonable diligence. The dis-
covery of a deed on record in the proper
office will not entitle a party to a new
trial. Denny v. Wickliffe, 1 Met. 216,
(42) The statement in the affidavit of
the witness filed in support of the motion
for a new trial that he had not com-
municated the facts to the party until
after the trial, is not sufficient ; the party
himself should state that the facts were
unknown to him until after the trial.
Bronson v. Green, 2 Duv. 234.
(43) Where a party loses a case because
of insufficient evidence, he is entitled to a
new trial if prevailing party confess that
verdict is against justice and truth and is
willing to so testify* Pigg v. Whitman,
2 R. 320.
(44) To entitle a party to a new trial,
when the point upon which it is sought
was in issue in the former trial, the dis-
covered evidence must be of such a per-
manent and unerring character as to
preponderate greatly, or have a decisive
influence upon the evidence to be over-
turned by it. Allen v. Perry, 6 Bush 85 ;
Mitchell V. Berry, 1 Met. 602 ; Mercer v.
Mercer, 87 Ky. 21 ; Porter v. First Nat.
Bank, 2 R. 212.
(45) "It is a general rule that a new
trial should not be granted upon the sole
ground of a discovery after verdict of
parol testimony concerning a point liti-
gated, or a fact known to a party, because
the converse of this rule would open a
wide fleid for unfairness and subornation,
and would tend to protract ligitationand
render it not only uncertain, but almost
interminable." Leonhart v. Stalzenber-
ger, 7 Bush 209; 87 Ky. 21.
(46) New trial oo payment of costs. The
Ky. Stat., sec. 809, provides that a new
trial may be granted upon condition that
the costs of former trial are paid by the
party applying therefor within forty
days. But the court is vested with a
sound legal discretion in each case, and
may refuse to set aside the order grant-
ing a new trial, although the costs are
not paid within forty days. The time
should not be less than forty days. Myers
V. Lummis, 80 Ky. 456; and see Mattingly
V. L. & N. R. r!, 92 Ky. 463 ; Galbraith
V. Galbraith, 5 R. 859.
(47) The court can not order o/i costs to
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8. Error of law occurring at the trial and excepted to by the
party making the application.
§ 341 [S70] When not to be sranted. A new trial shall not be granted
on account of the smallness of damages in an action for an injury to
the person or reputation, nor in any other action in which the dam-
be paid, but only costs of former trial,
but when court granted new trial upon
payment of all costs, the party should
have offered to pay costs of former trial.
Carbon v. Stout, 7 Bush 609 ; and when a
new trial is granted because of error of
the court in instructing the jury over the
objection of a party, he should not, when
granted a new trial, be required to pay
any costs. Ullman v. Abraham, 9 Bush
738.
(48) Perenptory instruction. Motion for
new trial not necessary. Loving v. War-
ren Co., 14 Bush 316 ; Coffman v. Wilson.
2 Met. 543 ; Owensboro R. R. v. Barker,
15 R. 175.
(49) Practice. On the calling of a case
defendant moved for a continuance on
account of absence of his counsel ; his
motion was overruled and a judgment
rendered against him, with time to pre-
pare bill of exceptions. He filed a peti-
tion for a new trial on ground of ** cas-
ualty and misfortune," in that his attor-
ney was absent, and the court held upon
appeal from judgment, dismissing peti-
tion, that proper remedy was by appeal
from first judgment and not by petition
for new trial. Beckham v. Morrison, 14
R. 241 ; when a party is taken by surprise
during the trial of a case, the correct
practice is to move for a continuance
or postponement, and not to take the
chances of a verdict, or failing in that
to apply for a new trial. Shipp v. Sug-
gett, 9 B. M. 5.
(50) The Court of Appeals may, when
a new trial has been granted and there is
an appeal from the second judgment, di-
rect the entry of first judgment if it has
been erroneously set aside. Couadeau v.
American Accident Co., 95 Ky. 280; and
see note 11.
(51) After getting a new trial, the
party obtaining can not appeal from the
original judgment. McCall v. Hitch-
cock, 9 Bush 66.
(52) Trial by conrt— -ai«ti«n for new trial.
In a common law action, where the law
and facts are submitted to the court, a
motion and grounds for a new trial made
within three days are necessary in order
to a review by the Appellate Court of
any alleged errors committed during the
trial. In the absence of a motion and
grounds for a new trial, nothing is be-
fore the court except the inquiry as to
whether the pleadings state any cause of
action or defense, and whether the evi-
dence authorizes the judgment. Helm
v. Coffey, 80 Ky. 176 ; Henderson v. Du-
pree, 82 Ky. 678 ; Harper v. Harper, 10
Bush 447 ; and this rule applies, although
the conclusions of law and fact are
separately stated. 82 Ky. 678.
(53) Verdict not snatainetf by law or evi-
dence. In an action to recover damages
for the loss of a slave, where the verdict
was for $1,500, the court say: "The
question of damages was peculiarly
within the province of the jury, and
although we might not concur with the
jury as to the correctness of their esti-
mate, we do not feel authorized to dis-
turb the verdict for that reason." Mo-
Clain V. Esham, 17 B. M. 146; L. & N.
R. R. Co. V. Graves, 78 Ky. 74 ; Bell v.
Keach, 80 Ky. 42.
(54) Verdict will not be disturbed be-
cause not sustained by the evidence un-
less it is clearly and palpably against the
weight of it. Thompson v. Thompson. 93
Ky. 435 ; Urso v. Unverzagt, 2 R. 228.
(55) If the plaintiff fails to set out a
good cause of action, and the defect is
not cured by answer (Fible v. Caplinger,
13 B. M. 464) ; or if the plaintiff shows no
right to sue, a verdict for the plaintiff
should be set aside. Petty v. Mailer, 14
B. M. 246; and see sec. 386 and notes
thereto as to when judgment may be
rendered against verdict.
§341. (1) Smallness of danases— when
cause for new trial. When in an action for
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ages equal the actual pecuniary injury sustained ; nor shall more than
two new trials be granted to a party upon the ground that the ver-
dict is not sustained by the evidence.
§ 342 [till AppHcatioa lor — when to be made. The application for a new
trial must be made at the term in which the verdict or decision is
rendered; and, except for the cause mentioned in section three hun-
dred and forty, subsection seven, shall be within three days after the
verdict or decision is rendered, unless unavoidably prevented.
§ 343 riTi: Motion and written fronnds — affidavits. The application must be
by motion upon written grounds filed at the time of makingthe motion.
The grounds mentioned in section three hundred and forty, subsec-
tions two, three and seven, must be sustained by affidavits showing
their truth ; and may be controverted by affidavits.
any injury to the person special damages
are alleged and proved, and the jury
disregard the evidence and the law and
find for the plaintiff only one cent, a new
trial should be awarded. This section
does not apply to the actual pecuniary
damages resulting directly from the
wrong. These damages can be measured ,
and the rule that a new trial shall not be
granted on account of the smallness of
the damages does not apply. Ray v.
Jeffries, 86 Ky. 367 ; Taylor v. Houser,
12 Bush 465 ; Jesse v. Shuck, 11 R. 463.
(2) Plaintiff is not entitled to a new
trial on account of smallness of damages
where they cover actual pecuniary loss
sustained. Callahan v. Harris, 6 R. 657.
(3) Three verdicts for sum {Mirty. Where
there have been three verdicts for the
same party, the court will not disturb
the third verdict, although the judg-
ments in the first two cases were reversed
for errors of law, and the third verdict
is against the weight of evidence. L. &
X. R. R. Co. v. Graves, 78 Ky. 74 ; L. &
N. R. R. V. Adams, 10 R. 713; L. & N.
R. R. V. Ballard, 88 Ky. 159.
§142. (1) Motioate be oMde within three
days — additional froaads. A motion for a
new trial must be made within three
days after the verdict is returned,
whether the verdict be general or special.
Imperial Ins. Co. v. Kiernan, 83 Ky. 468 ;
and although a motion for judgment,
notwithstanding verdict may be pending.
Ruhrwein v. Gebhart, 90 Ky. 147.
(2) The requirement that the motion
shall be made within three days means
three juridical days, and the day on
which the verdict or decision is rendered,
and the day on which the motion is
made, are both computed. Long v.
Hughes, 1 Duv. 387 ; White v. Crutcher,
1 Bush 472; Humphrey v. Walton, 2
Bush 580.
(3) When motion is not made in three
days nothincr but pleadings and finding
of jury can be considered on appeal.
Western Assurance Co. v. Rector, 85 Ky.
294 ; 90 Ky. 147.
(4) When grounds for a new trial have
been filed within three days after the
verdict, the court may permit additional
grounds to be filed after the expiration
of three days and before motion is dis-
posed of. Houston V. Kid well, 83 Ky.
301 ; but additional grounds can not be
filed after motion has been made and
overruled. Ky. C. R. R. v. Smith, 93
Ky. 449.
(5) Sunday intervening between day
verdict is rendered and motion made
will not be counted in estimating the
three days. Frazier v. Clark, 88 Ky. 260.
(6) Trial by coart If the law and facts
are submitted to the court, a motion and
grounds for a new trial must be filed
within three days from the day the de-
cision is rendered. Helm v. Coffey, 80
Ky. 176; Henderson v. Dupree, 82 Ky.
678.
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200 GENERAL PROVISIONS. [TITLE IX
§ 344 [ST8] Oroonds discovered after term — practice— divorce cases. If grounds
for a new trial be discovered after the term at which the verdict or
decision is rendered, the application may be made by a petition filed
with the clerk not later than the second term after the discovery — on
which a summons shall issue, as on other petitions, requiring the
adverse party to appear and answer it on or before the first day of the
next term. The application shall stand for hearing at the term to
which the summons is returned executed, and shall be summarily
decided by the court. The evidence maybe either by depositions or by
witnesses examined in court. But no such application shall be made
more than three years after the final judgment was rendered ; nor do
the provisions of this section apply to divorce cases, so far as the
judgment for divorce is concerned. {Further provisions concerning^
sees. 618 to 6H)
ARTICLE 6.
OBNBRAI. PKOVI8ION8.
§ 345. Amount of damages recoverable.
§ 346. Provisions of title apply to trials by court.
§ 345 [ST4] Amoont of damages recoverable. If damages be recoverable,
the plaintiff may claim and recover any rate of damages to which he
may be entitled for the cause of action established.
I 344. (1) Divorce. Court of Appeals suit in which the new trial is sought it
has no revisory power over judgment is not necessary to allege and prove a
granting even from bed and board. Ev- valid defense to the action before a new
ans v. Evans, 03 Ky. 500 ; Irvin v. Irvin, trial can be granted. It is sufficient to
16 R. — show that an issue had been joined or
(2) Jndsmeot— how vacated after term, that party had been prevented from
After the term, a final order or judg- forming an issue or presenting his de-
ment can not be vacated, except in the fense, and that the grounds for new trial
mode prescribed by sections 344, 519, are embraced by subsections 2, 3 or 7 of
520, and for the causes mentioned in sec- sec. 340. Steel v. Seale, 4 R. 42.
tions 340 and 518. Hocker v. Gentry, 3 (5) Petitioa— when to be filed. The pe-
Met. 403 ; McManama v. Garnett, 3 Met. tition is not required to be filed in open
517. court during the term, but, like other
(3) Limitation. New trial can not be petitions, it must be filed with the clerk,
granted under this section after expira- and the length of time before the second
tion of three years from rendition of term after the discovery necessary to al-
judgment. Anderson v. Meredith, 10 R. low summons issued and returned for
460 ; nor after expiration of second term trial at that term. Scott v. Scott, 82
after discovery of grounds ; Nickell v, Ky. 328.
Fallen, 15 R. 389. ' § 345. Vindictive damaaes. The right
(4) New triai after term— practice. Where of a plaintiff to recover vindictive
an issue was formed by pleadings in the damages for personal injuries, where the
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'TITLE IX] TIME OP TRIAL. 201
§ 34i rsTo] Provislofls of title apply to trials by court The provisions of
this title, respecting trials by jury, apply, so far as they are in their
nature applicable, to trials by the court.
ARTICLE 7.
TIME OP TRIAL.
§ 347. Three dockets to be kept.
§ d48. Oommon docket — entries on.
§ 349. Oommon docket — arrangement of.
§ 350. Jury trial— time of.
§ 351. Eiquity docket— entries on.
§ 352. Motion docket— entries on.
g 353. Dockets to show names of parties and attorneys.
§ 354. Ck>mmon docket — ^what it shall show.
§ 355. Motion docket — what it shall show.
g 356. First hour each day for motions.
g 357. Equity docket may be called.
g 358. Proceedings after motion hour.
g 359. Ordinary cases called after motion hour.
g 360. Equity docket called on third day.
g 361. Issues of law in equity cases tried third day — judgment.
g 362. Motion made by entering it on docket.
g 363. Ordinary actions — when stand for trial.
g 364. EJquity actions— when stand for trial.
§ 365. Party interrogated— when entitled to trial.
g ^. Plaintiff in equitable action may demand trial— when.
g 367. Trial as to part of defendants.
§ 347 [ST6] Three dockets to be kept The clerk shall keep three separate
dockets, which shall be called the common docket, the equity docket
and the motion docket.
§ 348 [STTj Cofflmon docket — entries on. On the common docket shall be
entered all the ordinary actions in the order in which they are
brought. (Action may be transferred to equity, sees. S to 15.)
§ 349 [STsi Common docket — arrangement of. The common docket shall
be made out for each term of the court ; and the actions shall be set
for particular days, and so arranged by the clerk that the .cases set
for each day shall be tried, as nearly as may be, on that day.
commission of the act complained of is settled rule of law. Punitive, vindictive
accompanied with circumstances of and exemplary damages are in legal con-
aggravation, has been repeatedly recog- templation synonymous. Chiles v. Drake,
nized, and must now be regarded as a % Met. 146 ; and see note 16, sec. 340.
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202 TIME OP TRIAL. [TITLB IX
§ 366 [8Tf ] Jury trial — Umt ot The trial of any issue of fiict or assess-
ment of damages by a jury in any case shall be on or after the day
set on the docket for its trial.
§ 351 [MO] Equity docket — entries on. On the equity docket shall be
entered all equitable actions in the order in which they are brought.
(Action may transferred to ordinary, sees. S to 13.)
§ 352 [SSI] Motion docket — entries on. On the motion docket may be
entered any motion relating to proceedings in the court. {Motion
defined, sec. 623.)
§ 353 [sss] Dockets to show names off fwrties and attorneys. The entry on
all the dockets shall give the names of the plaintiff and defendant ;
or, if there be more than one, those of the first named in the plead-
ings, with the words " and others " added thereto, and the names of
the attorneys. (Officer^s return on summons to be entered, sec. 670.)
§ 354 [SSS] Common docket — ^what it shall show. The entry on the com-
mon docket shall also show whether or not the summons has been
fully served in due time for trial, and whether or not the issues have
been formed.
§ 355 [SS4] Motion docket — what it shall show. The entry on the motion
docket shall show the date of the entry and the object of the motion.
§ 356 [ssD] First hour each day for motions. The first hour of each day
of the term shall be devoted to hearing motions — ^in which the court
shall first call the motion docket ; and then, upon the attorneys pres-
ent, for motions.
§ 357 [SSS] Equity docket may be called. If the hour be not consumed in
motions, the court may proceed, during the remainder thereof, to call
the equity docket.
§ 358 [ssT] Proceedini^ affter motion hour. At the expiration of the
motion hour, the court, except on the third day of the term, shall
proceed to the call of the common docket and the trial of the issues
until the call be completed; and then to the call of the equity docket.
§ 359 [SSS] Ordinary actions called affter motion hour. On each day of the
term the court shall, immediately after the hearing of motions, call
§352. Motion. In proceeding by which authorizes the court, before an
motion, plaintiff may, on day specified in action is ready for trial, to hear and try
notice, make motion in court and have it it, and render a judgment in favor of
entered of record or cause it to be placed one of the parties (whose right to recover
on the motion docket, and in either case anything on the final hearing is not
the motion will be regarded as regularly admitted), on the mere probability that
pending in court. Bent v. Maupin, S6 he will be then entitled to the sum
Ey. 271. adjudged in his favor. The court has
§ 3S9. Trial of cases. There is no pro- no right to take a case up and hear It,
vision of the Code or rule of practice except as provided for in the Code, in
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TITLE IX] TIME OF TRIAL. 203
all the cases on the common docket set for that day in which the
summons has been served in due time, as provided in section one
hundred and two, and in which no issue of fact has been formed ;
and, upon failure to defend, may render judgment; and* at the same
time may hear and determine all issues of law in such actions, and
render judgment, or give further time for hearing and deciding them.
§ 3M [sst] E^oHy docket called oo third day. On the third day of each
term the court shall call all cases on the equity docket in which the
summons has been served, as provided in section one hundred and
two, and upon failure to defend may give judgment.
§ 361 [ttf] Issues of law la equity cases tried third day. On the third day
the court may hear and decide all issues of law in the actions, as they
are called; and render judgment, or give further time for hearing or
deciding them.
§342 [iti] Motion made by entering it on docket The entry of a motion on
the motion docket shall be considered as making the motion.
§ 363 [sfs] Ordinary actions — when stand for trial. Ordinary actions shall
stand for trial at the first term after process has been served on the
defendant, as specified in section one hundred and two. An action
upon contract, wherein the summons has been served in due time, as
provided in section one hundred and two, upon part only of the
defendants, shall stand for trial at the first term as to those so sum-
moned, and may be continued as to the others for further proceedings.
In other ordinary actions, the plaintift' can only demand a trial at any
term as to part of the defendants upon his discontinuing his action
on the first day of such term as to the others, {See farther^ sees.
370, 373.)
opposition to the wishes of either party. Indsoieat In an ordinary action not
Mattingly v. Bosley, 2 Met. 443. founded on a contract, the plaintiff can
|M. (1) Chaase of yeane—tine of trial, only demand a trial as to part of the
When a case is removed by change of defendants, when he has dismissed his
venue from one county to another, if the action against those not summoned on
case would stand for trial at the succeed- the first day of the term, and judgment
ing court of the county from which it rendered against any of the defendants,
is removed, and the papers be filed in unless this requirement is complied with,
the clerk's office of the court to which is erroneous. Hedger v. Downs, 2 Met.
it is removed ten days before the ensuing 160; Buckles v. Lambert, 4 Met. 330.
term, it will stand for trial at that term. (4) 'If several persons jointly' commit
Dale V. Hays, 14 B. M. 315. a tort, the plaintiff in general has his
(2) Plea of payneot by oae of several election to sue all or some of the parties,
•Wifsm — ^no judgment should be rendered and if several are jointly sued, and a
against any of them until the issue is joint verdict is rendered against them,
disposed of. Rouse v. Howard, 1 Duv. the court may set aside the verdict as to
31 ; Williams v. Rogers, 14 Bush 776. one or more and let it stand as to the
(3) Tort— trial as to sone of defeadaats — others. Buckles v. Lambert, 4 Met. 330;
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204 TIME OF TRIAL. [tITLB IX
§ 364 [St s] Equity actions — wlieo staod for trial. Equitable actions shall
stand for trial at any term, if the pleadings have been, or, by the
provisions of sections one hundred and two, one hundred and four,
one hundred and five, and one hundred and six, should have been
completed [sixty] days before the commencement of such term. But,
if they have not been so completed, though they should have been,
by those sections, the party in default as to time shall not be entitled
to demand a trial. {Word in brackets inserted by act 1892 ; see fur-
ther, sees. 366, 367.)
§ 365 [Sf4i Party interrofated wheo entitled to trial. If interrogatories be
annexed to a pleading in an equitable action, the party interrogated
shall not be entitled to demand a trial, unless he have answered the
interrogatories either within twenty days after they were filed or
twenty days before the term.
§ 366 [8f 0] Plaintiff in equitable action may demand trial — when. The plaint-
iff shall be entitled to a trial in an equitable action, at the first term
after the summons has been served on all the defendants as provided
in section one hundred and two, if no issue of fact be made by the
pleadings ; or, if the plaintiff consent that the statements of the
answer may be taken as true.
§ 367 [8»«] Equitable action — ^trial as to part of defendants. If the summons
in an equitable action have been served in due time on part only of
the defendants, the plaintiff may dismiss his action as to those not
summoned, and proceed to trial as to the others, if he could have
maintained his action against them without joining those not sum-
moned.
Shelton v. Harlow, 15 B. M. 547 ; and at the term at which a reply to a counter-
see U. 8. of Shakers v. Underwood, 11 claim is filed, the reply being necessary
Bush 265 ; Sellards v. Zomes, 5 Bush 90, to complete the pleadings. Smith v.
and notes to sec. 373. Ferguson, 3 Met. 424.
(5) Joint trespassers — joint or several §366. (1) Trial of equitable actioa at
judgment against is proper. Alexander term answer Is filed, on motion of defend-
V. Humber, 86 Ky. 565; 86 Ky. 578. ant, is not error, when the plaintiff gets
§364. (1) Noo-resideat— equitable action judgment for all he is entitled to under
against. An equitable action against a his petition. Lowe v. Lowe, 13 Bush
non-resident does not stand for trial until 688.
ninety- [now sixty] days after the plead- (2) When there is no objection to the
ings ought to have been completed. hearing nor motion for a continuance,
Harris v. Adams, 2 Duv. 141 . nor for a rehearing, it can not be adjudged
(2) In equitable actions in the Louis- that the hearing was premature or er-
ville Chancery Court, ** when the order of roneous, although the case was submit-
warning is entered the defense must be ted a few days after the filing of an
filed in sixty days thereafter." Irish B. amended answer. Moses v. Rowland, 3
and L. Association v. Clemons, 78 Ky. 79. Bush 505.
(3) Time of trial— pleadings to be com- (3) An equitable action does not stand
pleted. An action does not stand for trial for trial at the term at which an answer
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TITLE IX] JUDaMBNT IN GENERAL. 205
CHAPTER in.
JUDGMENT.
Article 1. Judgment in general, 368.
2. Upon failure to plead, 379.
3. Judgment BY CONFESSION, 381.
4. Manner of giving and entering, 384.
5. Conveyance by commissioners under* 394.
ARTICLE 1.
JUDGMENT in GENERAL.
§ 368. Judgment defined.
§ 369. Judgment for or against one or more of parties.
§ 370. Judgment as to some, continuance as to others.
§ 371. Dismissal of action without prejudice.
§ 372. Trial of set-off or counter-claim.
§ 373. Judgment may be against part of defendants.
8 374. Enforcement of lien not to be postponed.
§ 375. Foreclosure of mortgage forbidden.
g 376. Enforcement of lien and personal judgment.
§ 377. Set-off of judgments for money.
§ 378. Enjoining collection of judgment.
§ 36& [stT] Judgmeot defined. A judgment is a final determination of a
right of a party in an action or proceeding. (Forms of judgments y
page 6^7; what are final orders, see sees. ^66 y 267 , 298.)
making an issue is filed, unless the tion itself, decides some matter litigated
plaintiff consents that the statements by the parties, or operates to divest some
may be taken as true. Gruel v. Smalley, right in such manner as to put it out of
1 Duv. 358. the power of the court making the order,
§3^ (1) Enforcement of iadsment by after the expiration of the term, to place
rule requiring party to bring money to the parties in their original position."
satisfy judgment into court is not allow- Helm v. Short, 7 Bush 623. See M. & L.
able. Cofer v. Woodyard, 5 R. 858 ; and R. R. Co. v. Punnett, 15 B. M. 47 ; Tur-
see Ky. Stat, sees. 1650, 1663, providing ner v. Browder, 18 B. M. 825 ; and a de-
that execution may issue on judgment at cree is a judgment. Hughes v. Shreve,
law or in equity. 3 Met. 547; and see further as to final
(2) Erroneoos jodsment can not be as- orders notes to sec. 734.
sailed in a collateral proceeding. Green (4) Interest may be compoted on principal
v. Ball, 4 Bush 586; Newcomb v. New- sum to date of judgment, and judgment
comb, 13 Bush 544; and see as to void be rendered for amount with interest,
judgment, note 17. Turpin v. Turpin, 4 R. 438; Ky. Stat.,
(3) Pinal order defined. Final judg- sec. 2220.
ments '*are such as at once put an end (5) Judpient—what sliould it state. " A
to the action by declaring that the plaint- judgment should show who has suc-
iff has either entitled himself, or has ceeded, what has been recovered and
not, to recover the remedy he sues for." from whom, or, in brief, what has been
A final order ** either terminates the ac- determined by the court." Parsons v.
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206
JUDGMENT IN GENERAL.
[title IX
§ 3M [s»s] Judgment for or against one or more of parties. Judgment may
be given for or against one or more of several parties. {If on contract
it will not bar proceedings against others, sec. S7,)
Spencer, 83 Ky. 305 ; but judgment in
favor of the ''descendants" of a person
without naming them is not void for un-
certainty. Stevenson v. Flournoy, 89
Ky. 561 ; and see sec. 390 ; and notes 6, 7
to sec. 370.
(6) Jadgment asainst cestui que tmst in
an action to which trustee is not a party
does not bind him, and he may resist its
enforcement against the estate. Roberts
V. Yancy. 94 Ky. 243.
(7) Jadsmeot against admialstrator not
binding upon heirs in action to subject
property descended to them. Willis v.
Roberts, 90 Ky. 132; Jones v. Com.
Bank, 78 Ky. 413.
(8) Jadgmeats bind no persons except
the parties to the action or their privies.
Meadows v. Goff, 90 Ky. 540 ; nor do they
bind parties not before the court. Simms
V. Simms, 88 Ky. 642.
(9) Judgment final which completely
settles the rights of the parties, although
there is an order retaining case on docket
for purpose of executing judgment.
Brown v. Vancleave, 86 Ky. 381 ; and
see further as to final judgment, notes
to sec. 734.
(10) Nunc pro tnnc Judgment Although
neither the minutes nor order book
showed that judgment had been ren-
dered at a previous term, the filing by
defendants of supersedeas bond and as-
signment of errors were sufficient admis-
sions of record to authorize the court to
enter a nunc pro tunc judgment. Wade
V. Bryant, 9 R. 875.
(11) "During the term the court has
power to alter or amend the record ac-
cording to the truth of the case, but
after the term expires the court ceases
to have such power, except in cases of
clerical misprision, and even then it is an
inviolable rule that no amendment can
be made unless there is something in the
record to*amend by. The mere recollec-
tion of the judge as to what took place
at a former term is not sufficient to
authorize an addition to or amendment
of the record in regard to any order or
judgment. Boyd Co. v. Ross, 95 Ky. 167 ;
and see Raymond v. Smith, 1 Met. 65,
and sec. 390 and notes thereto.
(12) PMrol evidence is admissible, to
show what was determined in the former
action, if it does not appear from the
record. Maize v. Bowman, 93 Ky. 205.
(13) Personal |ndgment should not be
rendered when none is asked. Cavanaugh
V. Fried, 3 R. 253 ; Rowland v. Brown,
13 Bush 681 ; and see further as to judg-
ment that may be rendered under prayer
of petition, notes 47-51 to sec. 90.
(14) Resindicata. The burden is upon
party relying upon the bar to show that
the merits of the case were considered.
Pepper v. Donnelly, 87 Ky. 259.
(15) The rule is well settled that to
constitute the former judgment a bar to
another suit founded on the same cause of
action it must appear to have been a
decision upon the merits. But if the
trial went off on a technical defect, or
because the debt was not due, or because
the court had not jurisdiction, or be-
cause of the temporary disability of the
plaintiff to sue, or the like, the judgment
will be no bar to a future action. Birch
v. Funk, 2 Met. 544.
(16) "Ordered that this cause be dis-
missed at defendant's costs, and leave
given to withdraw note sued on by leav-
ing a copy in the papers," is not a final
order, and can not be pleaded in bar of a
subsequent action on the same note.
Hibler v. Shipp, 78 Ky. 64 ; and see notes
to sec. 371.
(17) When demurrer to petition isover-
ruled and case heard upon law and facts
and petition dismissed, it will be presumed
in the absence of rebutting circumstances
that the trial was upon the merits, but
the presumption is not conclusive. 87
Ky. 259 ; see further, notps to sec. 371.
(18) Judgment dismissing petition is a
bar to another action fo rthe same relief,
provided the determination has reached
the merits of the case, and whether the
facts upon which court acts are shown by
evidence or averred in petition and ad-
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TITLE IX]
JUDGMENT IN GENERAL.
207
§ 370 [89t] Jfldgnent as to some, coitifloaace as to others. In an action
against several defendants, the court may, in its discretion, render
judgment against one or more of them, leaving the action to proceed
against the others, if a several judgment be proper, {When several
judgments not proper^ sec. 80, and see sees. 363, 373)
mitted by demurrer. Maize v. Bowman,
03 Ky. 205.
(19) When a judgment which has been
affirmed upon appeal is relied upon in
bar of another action the ground of af-
firmance must be taken to be the same
upon which judgment was rendered, and
resort had to opinion to determine
whether there was a decision upon the
merits. 87 Ky. 259.
(20) The judgment of a court having
jurisdiction of the subject matter and
the parties is conclusive, not only as to
all matters determined by it, but as to
all incidental matters which might have
been properly litigated and decided in
the same suit, until it has been reversed
or vacated in some of the modes known
to the law. Honaker v. Cecil, 84 Ky.
202 ; Crabb v. Larkin, 9 Bush 154 ; Fran-
cis v. Wood, 81 Ky. 16 ; Sears v. Sears,
95 Ky. 173; Harpending v. Wylie, 13
Bush 158 ; Clark v. Rodes. 12 Bush 13 ;
81 Ky. 16 ; 14 Bush 746.
(21) See further, notes to sec. 390.
(22) Statemeat in that snmnoos has heeo
ezccated. It clearly is no part of the
judgment of the court to state whether
the summons has been executed or not,
and the statement in Che judgment that
summons has been executed is not proof .
of that fact. Robinson v. Mobley, 1 Bush
196 ; Long v. Montgomery, 6 Bush 394.
(23) VoM Indsoient may be resisted in
any court in which it is attempted to be
enforced, and in order to obtain relief
from it, neither an appeal nor a direct
proceeding to vacate judgment is neces-
sary. Spencer v. Parsons, 89 Ky. 577;
Stevens v. Deering, 10 R. 393 ; but when
the court has jurisdiction, and the de-
fendant appears, or is warned according
to law, the judgment is not void, al-
though it may be erroneous in all its
parts, nor can it be assailed collaterally.
Derr v. Wilson, 84 Ky. 14 ; Newcomb v.
Newcomb, 13 Bush 544.
§ 37a. (1) Coatiflains action as to part
In an action in tort against several de-
fendants, some of whom have and some
of whom have not been summoned, it is
error to render judgment against any of
them unless the action is discontinued as
to those not summoned on the first day
of the term. Hedger v. Downs, 2 Met.
160; Buckles v. Lambert. 4 Met. 330;
see sec. 363 and notes.
(2) Where several are sued and judg-
ment is rendered against some of them,
it is not necessary to make an order con-
tinuing the case as to the others ; the
action as to them stands continued by
operation of law. Patton v. Shanklin,
14 B. M. 15.
(3) In an action on a return of "no
property " against the execution defend-
ant and others who are made defendants
and who, it is alleged, are each separately
indebted to the execution defendant in
certain specified amounts, judgment may
be rendered against some of them and
the action continued as to the others.
Joyce V. O'Toole, 6 Bush 31.
(4) Jadgiaeat afainst trespassers. *' A
judgment against one co-trespasser or
wrong-doer will not per $e bar a subse-
quent action against a different defend-
ant for the same, or a difl'erent asporta-
tion or conversion of the same property."
U. S. Shakers v. Underwood, 11 Bush
265 ; see further as to judgments in ac-
tions ex delicto, notes 3-5 to sec. 363.
(5) Joint or several judgment may be
rendered in action against trespassers.
Alexander v. Humber, 86 Ky. 565 ; Cen-
tral Pass. Co. V. Kuhn, 86 Ky. 578.
(6) Jadgmeot — how coistned. Whore
several are sued and some are served witli
process, judgment against **the defend-
ants " without naming them ^ill be un-
derstood as a judgment against the de-
fendants only who are summoned. Waller
V. Martin, 17 B. M. 181 ; Clark v. Finnell,
16 B. M. 329.
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208
JUDGMENT IN GENERAL.
[title IX
§ 371 [400] Dismissal of adioo witlioat pr^dice. An action, or any cause
of action, may be dismissed without prejudice to a future action —
1. By the plaintiff, before the final submission of the case to the
jury, or to the court, if the trial be by the court.
2. By the court —
a. If the plaintiff fail to appear at the trial.
6. For the want of necessary parties.
c. On the application of a defendant, if there be others whom the
plaintiff fails to prosecute with diligence.
d. For disobedience by the plaintiff of an order concerning the
proceedings in the action. In all other cases, upon the trial of the
(7) In an action against several, one of
them being a nominal and unnecessary
party between whom and the plaintiffs
there was no litigation, a judgment
against **the defendants," without dis-
crimination, although erroneous, is a
clerical misprision. C, H. & D. R. R.
CJo. V. Spratt, 2 Duv. 4 ; see further, notes
to sees. 27, 373.
(8) Repievyios Indsmeat by part of if
feadaats. Where several persons are sued
and judgment is rendered against some
of them and replevied, it does not bar
proceedings against the others. Burrus
v. Anderson, 3 Met. 500 ; Nat. Bank v.
Bryant, 13 Bush 419.
I 371. (1) Coaater-claim or set-off not
affected by dismissal of action ; but
after plaintiff has made motion to dis-
miss it is too late to file counter-claim.
Sec. 372 ; Northwestern Ins. Co. v. Bar-
bour, 95 Ky. 7 ; and see notes, page 81.
(2) Defect of parties. When there is a
defect of parties the action should be
dismissed without prejudice, unless
within a reasonable time the defect is
cured. Turpi n v. Thompson, 2 Met.
420 ; Carpenter v. Miles. 17 B. M. 598 ;
and see note 3 to sec. 92.
(3) Dismissed agreed— effect of. When
an action is dismissed agreed, it will be
a bar to a recovery on the same cause of
action between the same parties. Hibler
v. Shipp. 78 Ky. 64.
(4) Dismissal without prejudice— effect of.
A dismissal without prejudice leaves the
parties as if no action had been insti-
tuted, and when on issue formed and
proof heard the court •* dismisses the
action without prejudice," it will be pre-
sumed that the case was not disposed of
on its merits. Magill v. Mercantile Co.,
81 Ky. 129.
(5) Dismissal— wlieaaot a liar. Dismissal
of a cross-bill as to one of the causes of
action set up, with an express reserva-
tion as to all other matters, is no bar to
another action for the matters reserved.
Harrow v. Johnson, 3 Met. 578 ; and see
notes 14-19 to sec. 368.
(6) If a trial went off on a technical
defect, or because the debt was not due,,
or because the court had no jurisdiction^
or because of the temporary disability
of the plaintiff to sue, or the like, the
judgment will not be a bar to a future
action. Birch v. Funk, 2 Met. 544;
Pepper v. Donnelly, 87 Ky. 259 ; Yankey
v. Sweeney, 85 Ky. 55; see notes 14-19,
sec. 368.
(7) Dismissal of a petition absolutely,
when it should have been dismissed
without prejudice, will not bar another
action on the same cause when the
plaintiff in the action dismissed had no
right of action ; the legal effect is the
same as if the petition had been dis-
missed without prejudice. Bracken Co.
v. Robertson Co., 6 Bush 69.
(8) Where this order was made,
** ordered that this cause be dismissed at
defendant's cost, and leave is given the
plaintiff to withdraw the note sued on
by leaving a copy in the papers," it
did not bar another action on the note.
Hibler v. Shipp, 78 Ky. 64.
(9) Filioa away case for want of prose-
cution is not a final order or bar to a>
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JUDGMENT IN GENERAL.
209
action, the decision must be upon the merits. {Upon failure of
plaintiff to secure costs, sec. 617 ; see further as to dismissal^ sec. 86.)
§ 372 [401] Trial of set-off or coaoter-claim. A defendant is entitled to a
trial of a set-off or counter-claim, although the plaintiff dismiss his
action or fail to appear. {As to judgment on, sec. 387.)
subsequent action on the same cause.
Nickel V. Fallen, 15 R. 389 ; 7 R. 758.
(10) The practice of filing away cases
is not authorized by the Code, but if a
case has been filed away with leave to rein-
state, the plaintiff is entitled upon notice
and motion to that effect to have case re-
docketed. Whailey v. Myers, 7 R. 758.
(11) Final sabmission to jury is not made
"until all questions of law have been
disposed of by the court, instructions and
papers pertaining to the case actually
delivered to the jury and they are
authorized without further Interposition
or control of the court to proceed to a
judicial examination of the issue sub-
mitted to them." Vertree v. N. N. &M.
V. R. R.. 95 Ky.314.
(12) Party can not dismiss ills action to
the prejudice of others who have the
right to avail themselves of his pleading,
as in an action under act of 1856. Hei-
drich V. Silva, 89 Ky. 422; Sawyers v.
Sanford, 5 Bush 539 ; Baker v. Kinnaird,
94 Ky. 5; Roberts v. Phillips. 11 Bush
11 ; nor can court file action away so to
defeat rights of other creditors, 5 Bush
539; nor can a party, after commence-
ment of trial, withdraw a defense that
another party has right to avail himself
of. Heam v. Lander, 11 Bush 669.
(13) In an action for the recovery of
si)eciflc personal property, where the
plaintiff has executed bond and obtained
possession of the property, he can not,
over the objection of the defendant, dis-
miss his action and retain the property.
Rogers v. Bradford, 8 Bush 163.
(14) Practice. An action was dismissed
without prejudice, and the court, on
motion of plaintiff, set aside order con-
ditioned upon payment of all costs by
him within sixty days, failing to pay
costs order dismissing remained in force
and is not bar to another action. Mat-
tingly v. L. & N. R. R. Ck)., 92 Ky. 463.
(15) An action should not be dismissed,
(14)
with or without prejudice, because the
plaintiff neglects or fails to have a
guardian ad litem appointed for the in-
fant defendants. It is the duty of the
court to see that a guardian ad litem is
appointed, and where the case is sub-
mitted before the appointment of the
guardian the submission should be set
aside and a guardian appointed. C. &
L. R. R. Co. V. Bowler, 9 Bush 468.
(IB) In an action against an adminis-
trator and others on a bond, if the affi-
davit and demand required by law have
not been made, the action should be dis-
missed without prejudice as to the ad-
ministrator, but not as to the others.
Rogers v. Mitchell, 1 Met. 22.
(17) In an action for the recovery of
land and damages for its detention, the
plaintiff dismissed his action for dam-
ages up to the filing of the suit. The
averments of the petition did not claim
damages after that time, and a judg-
ment for $500 damages was erroneous.
Shean v. Cunningham, 6 Bush 123.
(18) Rlgiit to dismiss without prejudice
at any time before submission belongs to
the plaintiff absolutely, and court has no
discretion in the matter. Northwestern
Ins. Co. V. Barbour, 95 Ky. 7; and see
notes 11 and 19.
(19) Time when motion may be made.
Plaintiff has a right to dismiss without
prejudice even after motion for peremp-
tory instruction has been sustained, but
before instruction is given to jury. Ver-
tree V. N. N. & M. V. R. R., 95 Ky. 314;
and see notes 11, 18.
(20) Trespassers. Any one or all of
joint trespassers may be sued, and a dis-
mission as to, or release of, one or more
who are sued does not release the others.
Sellards v. Zomes, 5 Bush 90 ; Buckles v.
Lambert, 4 Met. 330. See further, notes
to sec. 370.
§ 372. Set-off— counter-claim. See notes
to sec. 96.
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JUDGMENT IN GENERAL.
[title IX
§ 373 r«oi] Jad^ent may be against part of defendants. Though several
defendants are summoned, judgment may be rendered against any
of them, if the plaintiff would have been entitled to judgments against
them in an action against them alone. {When several judgments not
allowed^ sec, 80,)
§ 374 [408] Enforcement of lien not to be postponed. In an action to enforce
a mortgage or other lien, a sale of the property may be ordered with-
out giving time to pay money or do other act. (Proceeding if several
liens on same real property j sec, 694-')
§ 375 [«04] Foreclosure of mortfaf e forbidden. Foreclosure of a mortgage
is forbidden.
§ 376 («o«] Enforcement of lien and personal Judgment. In an action to
enforce a mortgage or lien, judgment may be rendered for the s^le of
the property and for the recovery of the debt against the defendant
personally. (Form of judgment, page 649)
1 373. (1) Answer by ooe of sereral
obngors. In an action against several
obligors on a contract, a plea of payment,
or release, which extinguishes the de-
mand sued on, inures to the benefit
of all, and no judgment can be rendered
against any of them until the plea is
disposed of. But a personal plea, such
as infancy, non est factum^ or coverture
by one, does not prevent judgment from
being taken against the others. Rouse
V. Howard, 1 Duv. 31.
(2) Jadf neat a^last one ef several obll-
fors. In an action upon a joint under-
taking, judgment may be rendered
•against one or more of the obligors.
Moore v. Estes, 79 Ky. 282 ; Quisenberry
V. Artis, 1 Duv. 30.
(3) Partners— jv^ifoeat a^iost one. A
creditor may, at his election, sue any or
all of the members of a partnership, and
a judgment against one will not be a
bar to proceedings against the others.
Williams v. Rogers, 14 Bush 770; over-
ruling Nichols V. Burton, 5 Bush 320 ;
and see Hunt v. Simonin, 79 Ky. 270;
Moore v. Estes, 79 Ky. 282.
§ 174. (1) Mertsage, secnrity for debt only.
A mortgage is a mere security for the
debt, and the mortgagor is the real owner
of the property mortgaged, and is en-
titled to the use and profits thereof. The
rents can only be claimed by the mort-
gagee by virtue of a contract, or when a
receiver has been appointed. Woolley v.
Holt, 14 Bush 788. See further, notes to
sees. 299 ; and sees. 692, 694 and notes
thereto as to enforcement of liens and
practice concerning.
(2) Sale by mortgagee. Provision in
mortgage permitting sale of property by
mortgagee is void. Wilson v. Aultman,
91 Ky. 299.
§ 375. Foreclosare defined. "A proceed-
ing in chancery by which the mort-
gagor's right of redemption of the mort-
gaged property is barred forever. This
takes place when the mortgagor has for-
feited his estate by non-payment of the
money due on the mortgage at the time
appointed, but still retains the equity of
redemption ; in such case the mortgagee
may file a bill calling on the mortgagor
in a court of equity to redeem his estate
presently, or in default thereof to be for-
ever barred from any right of redemp-
tion." Bouvier Law Diet.
I 376. (1) Judgment in personam and In
rem. Any rule of practice by which the
assignee of notes secured by lien on land
is prevented from proceeding at the same
time to enforce his personal judgment
and Judgment in rem should not be
adopted in case where the rights of the
assignee may be jeopardized. Chambers
V. K!eene, 1 Met. 289. An assignee, to
entitle himself to recover against the
assignor on the contract of assignment,
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TITLE IX]
JUDGMENT UPON FAILURE TO PLEAD.
211
§ dn [MTj Set-off of iadfmeiits for nooey. Judgments for the recovery
of money may be set-oft* against each other, with due regard to the
legal and equitable rights of all persons interested therein. The set-
off may be ordered upon motion, after reasonable notice to the
adverse party, if both judgments are in the same court ; or in an
equitable action in the court which rendered the judgment sought to
be annulled by the set-off'.
§ ^8 [«08i Eojoiniof collection of Jadf meot During the pendency of an
action, the judgment in which when recovered could be used as a
set-off against a judgment in favor of the defendants or either of
them, the court, to prevent loss by insolvency, non-residence or
otherwise, may enjoin the collection of the judgment in favor of such
defendants, according to the provisions of chapter four of title eight.
ARTICLE 3.
JUDOMBKT UPON FAILUBB TO PLBAD.
§ 379. Ascertainment of facts upon failure to plead.
§ 380. Judgment for uncon trover ted part of claim.
§ ^9 [«o9] Ascertiinmeot of facts apon failure to plead. If the taking of
an account, or the proof of a fact, or the assessment of damages, be
must exhaust his remedies, both legal
and equitable ; and this section of the
Code does not lessen the responsibility of
the assignee. Rives v. Brown, 81 Ky.
636. See Carlisle v. Chambers, 4 Bush
268 ; 1 Met. 289.
(2) Mort^feeof persoiiai property— riflits
of. ** On a mortgage of personal prop-
erty, after condition broken, the mort-
gagee may take possession of the mort-
gaged property, if he can peaceably get it,
as authorized by the common law, which
right has never been repealed by any stat-
ute." Brown v. Phillips, 3 Bush 656;
and see Brookover v. Hurst, 1 Met. 665.
(3) Persoiiai ladgmeat In an action to
enforce a lien on land i)ersonal judgment
may be rendered against the defendant,
although he has not been summoned in
county where action is pending. Collins
v. Park, 93 Ky. 6.
(4) Rents — practice — as to when mort-
gagee entitled to rents, see sec. 299 and
notes ; as to practice, see numerous notes
to sees. 692, 694.
§377. (1) Set-off of jadgmeots — attor-
■ey's Ueo— ^nitable rig bta. The attorney's
lien attaches to the claim in ligitation
at the commencement of the action, and
can not be defeated by setting off one
judgment against another, as provided
in this section. Robertson v. Shutt, 9
Bush 659.
(2) A judgment in the quarterly court
in the form of a replevin bond mtky be
set off against a judgment in the circuit
court in an equitable action in the latter
court. Smith v. Bohon, 12 Bush 448.
(3) The right to set off judgments can
only be exercised in cases where the
legal and equitable rights of all those
Interested in both judgments can be up-
held; and where, pending an action on a
note, the plaintiff assigned his claim, the
assignment being filed when judgment
in his favor was rendered; a judgment
against the plaintiff, assigned to the de-
fendant, could not be set off against the
judgment obtained, and assigned by the
plaintiff. Pfeiffer v. Harris, 11 Bush 400.
§ 379. Assessment of damages—jadgment.
See notes to sec. 126.
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212 JUDGMENT BY CONFESSION. [TITLE IX
necessary to enable the court to pronounce judgment upon a failure
to plead, or after a decision of an issue of law, the court may take
the account, hear the proof and assess the damages ; or may cause
them to be assessed by a commissioner or a jury, on or after the day
on which the action is set for trial.
§ 380 [«io] Jadf meot for ancootroverted part of claiok If only a part of a
claim be controverted, judgment may at any time be rendered for
the part not controverted.
ARTICLE 3.
JUDGMENT BT CONFESSION.
§ 381. Parties to appear in person.
§ 382. Cause of action to be stated.
§ 383. Effect of.
§ 381 [«ii] Parties to appear io persoo. Any person may personally
appear in a court of competent jurisdiction and, with the assent of a
person having a cause of action against him, confess judgment
therefor; whereupon, judgment shall be entered accordingly. {Offer
to confess — effect of, sec. 64O; see Ky. Stat., sec. 4,16)
§ 382 [411] Cause of action to be stated. The cause of action shall be
briefly stated in the judgment, or in a writing to be filed as pleadings
in an action.
§ 383 [41SJ Effect of Jad^eot. Such judgment shall authorize the same
proceedings as judgments rendered in actions, and the confession
shall operate as a release of errors.
§ 380. Jndfmeat for aocootested amoaot 403; Campbell v. C. 8. R. W., 80 Ky. 585.
A party has a right to aslc judgment for But where part of a lien note is contested
the amount of his claim uncontested, it is error to sell enough land to pay un-
without precluding himself from pros- contested part, unless plaintiff waives his
ecuting his action to recover the residue lien as to contested part. See Sears v.
claimed. Maxwell v. Dudley, 13 Bush Henry, 13 Bush 413.
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TITLE IX] MANNER OF ENTERING AND GIVING JUDGMENT.
213
ARTICLE 4.
MANNBB OP GIVING AND BNTBBING JUI>GMSNT.
§ 384. Judgment in conformity to verdict — exception.
§ 385. Ck)urt to direct entry in certain cases.
§ 386. Judgment notwithstanding verdict.
§ 387. Counter-claim or set-off— judgment on.
§ 388. Specific personal property — form of judgment for.
§ 389. Damages given by statute.
§ 390. Entry on record— what to specify.
§ 391. Infant may have new trial — when.
§ 393. Judgment book to be cross indexed — how kept.
§ 393. Satisfaction to be entered— who may enter.
§ 384 [4i«] Jad^eot io cooformity to verdict — exception. After a jury-trial,
the clerk shall enter judgment in conformity to the verdict, unless it
be special as to one or more questions of fact, or unless the court
reserve the case for consideration.
§ 385 [«iB] Coart to direct entry in certain cases. After such special verdict
or such reservation the clerk shall enter such judgment or order as
the court may direct.
§ 386 [«i«] Jndjnnent notwitlistandinf verdict Judgment shall be given for
the party whom the pleadings entitle thereto, though there may have
been a verdict against him.
§384. Verdict— lodsmeiit on. The verdict
of a jury is not a judgment, and does
not terminate the action. The court
must render judgment, and can not re-
fuse to render judgment in accordance
with the verdict, upon proper notice and
motion made after the expiration of
the time when a motion for a new trial
can be made. Fuqua v. Mullen, 13
Bush 467.
§ 386. (1) Jodsmeot agiriiist tlie verdict
In an action on a note, the defendant
pleaded that the note was executed with-
out consideration, and was obtained by
fraud, covin and misrepresentation. The
plaintiflf failed to reply. The jury found
a verdict for the plaintiff for the amount
of the note. Held that the defendant
was entitled to judgment on the plead-
ings, and that it was too late to file a
reply after the verdict. Evans v. Stone,
80 Ky. 78; Brown v. Ready, 14 R. 583;
Mullikin v. Mullikin, 15 R. 609.
(2) Motion for judgment properly
comes from the plaintiff, but should
be made before judgment is entered. It
is too late after a motion for new trial is
overruled. SchieWe v. Hart, 11 R. 607,
and see further as to practice and waiver
of right, L. & N. R. R. v. Copas, 95 Ky.
460.
(3) Motion for new trial must be made
within three days, although motion for
judgment, notwithstanding verdict, is
pending, but the motion is not necessary
in order that Appellate Court may de-
termine whether pleadings are sufficient
to authorize judgment. Ruhrwein v.
Gebhart, 90 Ky. 147.
(4) This section only applies where a
material allegation which has been prop-
erly pleaded stands either confessed or
not sufficiently denied. Mullikin v. Mul-
likin, 15 R. 609.
(5) Petitioo defective. When the peti-
tion fails to state facts constituting a
cause of action, unless its defects are
cured by the answer, a judgment is unau.
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MANNER OF GIVING AND ENTERING JUDGMENT. [tITLE IX
§ 387 [41T] Coooter-claim or set-off — ^jadgmeiit oo. If the defendant establish
a set-off or counter-claim, and the plaintiff fail in his action ; or if
the set-off or counter-claim exceed the sum to which the plaintiff is
entitled, judgment shall be rendered for the defendant accordingly.
{See further as to trial o/*, sec. 372)
§ 388 [«isi Specific personal property — form of jad^eot for. In an action
for the possession of specific personal property, the plaintiff may
have judgment for its delivery, if it can be had ; and, if not, for its
value and for damages for its detention. K the property have been
delivered to the plaintiff, and the defendant claim a return thereof,
judgment for the defendant may be for the returu of the property,
or its value if a return can not be had, and damages for the taking
and withholding of the property. {Jury must assess value and dam-
ages^ sec, 330,)
§ 389 [«i»] Damafes fiveo by statote. If a party is entitled to damages
given by a statute, the court shall render a judgment therefor after
finding the amount thereof, or after causing them to be found by
a jury.
§ 390 [«io] Entry on record — what to specify. The judgment must be
entered on the order-book and specify clearly the relief granted or
other determination of the action.
thorlzed, and an appeal will be reversed.
Maddox v. Fox, 8 Bush 402; Liudsey v.
Rutherford, 17 B. M. 245. As to what
defects in are cured by answer and ver-
dict, see note 10 to sec. 95.
(G) Waiver of ritht t» move for |adsmeat
Where he plaintiff fails to reply to a plea
of contributory neglect defendant is en-
titled to judgment on the pleadings; but
if case is tried as if issue had been made
and attention of court is not called to
failure to reply, the right of defendant to
move for judgment is waived. L. & N.
R. R. V. CJopas, 95 Ky. 460.
§ 387. (1) Conoter-cUin — trial of. If,
upon the trial of the issue presented by
a counter-claim, the jury should find
damages in favor of the defendant to an
amount equal to the demand of plaintiff,
the verdict should be in favor of the de-
fendant ; and if they find damages of a
less amount than the demand of plaintiff,
they should give credit for this amount,
and find for plaintiff the remainder. But
if the defendant be entitled to nothing,
then the plaintiff should have judgment
for his whole claim. Moore v. Caruth-
ers, 17 B. M. 669. See further, notes,
page 81.
C2) Set-off. See notes, page 83.
§388. (1) Specific property — MffncBt.
Where the plaintiff was in possession of
a stray horse that he had never posted,
and had bailed him to the defendant,
the plaintiff in an action to recover the
horse was entitled, not to a judgment for
the value of the horse, but to a judg-
ment for the horse, if to be had, and if
not, for its value. Borron v. Landes, 1
Duv. 299. See sec. 181 and notes thereto.
(2) Judgment should be in the alter-
native for the return of the property, or
its value, in case a return can not be had,
and damages for the taking and with-
holding of the property. Rogers v.
Bradford, 8 Bush 163 ; Reid v. King. 89
Ky. 388. See further, notes to sec. 181.
§ 389. Damages given by gtatate. See
Shirley v. Landram, 3 Bush 552.
§ 390. (1) Ameodflieat of ladrment.
Judgments may in some cases be
amended, but there must be some entry
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TITLE IX] MANNER OF GIVING AND ENTERING JUDGMENT.
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§ 391 r4»] Infait may have oew trial — ^wheo. An infant — other tlian a
married woman — may, within twelve months after attaining the age
of twenty-one years, show cause against a judgment, unless it be for
a tort done by, or for necessaries furnished to, the infant; or unless
it be rendered upon a set-off or counter-claim stated in an answer;
but the vacation of such judgment shall not affect the title of a bona
fide purchaser under it. {Mode of proceedings^ sees. 618 to 6^1 ; appeal
byy sec. 745.)
on the record to amend by. A paper
purporting to be a decree found among
the papers in a suit can not be estab-
lished as a decree by parol proof. Ray-
mond V. Smith, 1 Met. 65 ; and see notes
10 and n, sec. 386.
(2) Confession of . Sees. 381, 640, and see
Ky. Stat., sec. 416.
(3) Correction of. See notes to sec. 517.
(4) Defealt indfment in ordinary action,
sec. 359; in equity action, sec. 360; for un-
contested part of claim, sec. 380 ; against
part of defendants, sees. 370, 373.
(5) Enforcement of after return of ''no
property.*' See sec. 439.
(6) Evidence when to be heard before ren-
dition of. See sees. 126 and 379 and
notes thereto.
(7) Foreign jndfments. Faith and credit
given to. McArthur v. Goddin, 12 Bush
274; McElfatrick v. Taft, 10 Bush 160.
(8) Identlficntion of property in. Judg-
ment must identify real property direct-
ed to be sold as well as specify the other
duties to be performed in its execution,
so that the commissioner can discharge
his duties without reference to any other
pleading or paper in the case. Lawless
V. Barger, 9 Bush 665; and see Paught v.
Henry, 13 Bush 471; Noland v. Noland,
12 Bush 426; Runyon v. Darnell, 10 Bush
67, and see notes to sec. 696.
(9) Interest Jadsment bears. Ky. Stat.,
sec. 2220; and see Henderson Cotton Co.
V. Lowell Machine Shops, 86 Ky. 668, as
to interest on accounts.
(10) Jndsment entered from mlnnte-boolc
Where a judgment was rendered on the
last day of the term and a memorandum
of it made on the minute-book and the
judgment entered in vacation, the orders
containing the judgment when signed by
the judge at the next term become as
much the act of the court as if entered
and signed at the term when rendered,
and parol evidence is not admissible to
show it was not so entered and signed, ex-
cept in a direct proceeding to set it aside.
Bennett v. Tiernay, 78 Ky. 580. But
see Johnson v. Com., 80 Ky. 377.
(11) Jttdf ment— what it slioald show. **A
judgment should show who has succeed-
ed, what has been recovered, and from
whom ; or, in brief, what has been deter-
mined by the court." Parsons v. Spen-
cer, 83 Ky. 305 ; and see further, notes
to sec. 368.
(12) But a judgment which does not
tiame the plaintiffs individually', but
simjJly designates them as heirs, as, ** ad-
judged that the heirs, plaintiffs in this
action,'recover of the defendants," is not
void for uncertainty. 83 Ky. 305 ; see
notes to sec. 368.
(13) Modification or vacation of. See
sees. 1 7, 340 and 518 and notes thereto.
(14) Presumption that Indsment is correct
Slack V. Price, 1 Bibb 275 ; Arnold v.
Paxton, 5 J. J. M. 609 ; Newcomb v.
Newcomb, 13 Bush 544.
(15) Revivor of. See sec. 401.
(16) Service of process in transitory
action before rendition of. Sees. 78-82.
(17) Variance between exhibit and peti-
tion as to amount claimed. Judgment by
default should be for amount claimed in
account, but when the difference is small
it will not be a reversible error to give
judgment for amount asked in petition.
Francis v. Francis, 18 B. M. 57.
§ 391. (1) Infants—vacation of Indgment
against The rights and interests of in-
fants are under the especial protection
of courts of equity. They need not aver
diligence in the preparation of their de-
fense to the action, nor the discovery of
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216
CONVEYANCB BY COMMISSIONBES.
[title IX
§ 392 [4M] Jad^ent book to be cross-indexed — how kept The clerk must
keep a record, called judgment-book, in which all judgments shall be
alphabetically cross-indexed, according to the surnames of each
plaintiff and each defendant ; and said book shall state the date of
the judgment, the order-book and page containing it, and satisfaction
of it when satisfied.
§ 393 [4S8] Satisfaction to be entered — who may enter. Upon the return of
an execution, showing that a judgment has been satisfied, the clerk
shall thus enter satisfaction on the judgment-book: satisfied by
execution. A party or his attorney, receiving satisfaction of a judg-
ment otherwise than by execution, shall make, date and sign this
entry upon the judgment-book : satisfied in full. The court may, on
motion, after notice, compel an entry of satisfaction to be made.
ARTICLE 5.
CONVBYANCB BY COMMISSIONERS.
§ 394. When to be made— effect of death of party.
§ 395. Deed to refer to judgment and proceedings.
§ 396. Character of title passed under judgment.
testimony, nor any of the special
grounds for which new trials may be
granted to adults. It is enough that they
were infants at the time of the rendition
of the judgment, and that it is unjust
according to the facts presented by
them, and that they apply for relief
within the prescribed time. Allen v.
Troutman, 10 Bush 61 ; Newland v.
Gentry. 18 B. M. 686.
(2) Burden is upon infant to show that
his substantial rights have been preju-
diced by the judgment he is seeking to
vacate. Park v. Bolinger, 10 R. 303.
(3) Where several infants have a joint
cause of action, the fact that the action
is not brought within a year after one of
them arrived at age is no bar to the
rights of the others who sued within the
prescribed time. Allen v. Troutman, 10
Bush 61.
(4) Infant may have judgment vacated
before he becomes of age. Moss v. Hall,
79 Ky. 40; Park v. Bolinger. 10 R. 303;
18 B. M. 666 ; 10 Bush 61.
(5) When an infant, after arriving at
the age of twenty-one, prosecutes an ap-
peal to have reversed a judgment ren-
dered against her during infancy as to
any matter which was, or could have
been, heard on the appeal, the judg-
ment of affirmance is a bar to a petition
filed in the Circuit Court to vacate the
judgment appealed from. Speak v. Mat-
tingly, 4 Bush 310.
(6) Infant may appeal from a judg-
ment against him at any time during his
minority, and an appeal taken during
infancy will be a bar to any appeal after
arriving at age. Moss v. Hall, 79 Ky.40.
(7) UmltttiOD. Right of infant under
this section to show cause against judg-
ment is limited to twelve months after ar-
riving at age. Keller v. Wilson, 90 Ky. 350.
(8) Mode of proceedios to vacate jadfmeat.
Where the condition of the defendant
nor the error does not appear in the pro-
ceedings, the judgment may be vacated,
as provided in sec. 518-5. Where the
condition of the infant appears in the
record, but the error does not, the court
can vacate the judgment, as provided in
this section. Richards v. Richards, 10
Bush 617.
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TITLE IX] CONVEYANCE BY COMMISSIONERS. 217
§ 397. Title passed under order of sale.
§ 398. Deed to be examined and approved by court.
§ 399. Names of parties in deed — commissioner to sign.
§ 400. County to be recorded in.
§ 394 [484] Wheo to be made — effect of death of party. Real property may
be conveyed by a commiBsioner appointed by the court —
1. If by the judgment in an action a party be ordered to convey
such property to another.
2. K such property have been sold under a judgment or order
of the court and the sale confirmed.
8. The death of a party, after a sale, does not prevent a con-
veyance. It shall be made, and shall have the same effect, as if he
were living. {See further as to conveyance after death of party, Ky.
Stat,^ sec. 621.)
§ 395 [480] Deed to refer to iod^eot and proceedings. The deed of the
commissioner shall refer to the judgment, orders and proceedings,
authorizing the conveyance, so that the same may be readily found.
§ 396 [486] Character of title passed under ]nd^ent. A conveyance made
in pursuance of a judgment shall pass to the grantee the title of the
parties ordered to convey the land.
§ 397 [48T] Title passed under order of sale. A conveyance made in pur-
suance of a sale ordered by the court shall pass the grantee the title
of all the parties to the action or proceeding.
§ 398 [418] Deed to he examined and approved hy court A conveyance by a
commissioner shall not pass any right, until it has been examined and
approved by the court — which approval shall be indorsed on the con-
veyance, and recorded with it.
§ 399 [489J Names of parties in deed — commissioner to si|pi. It shall be nec-
essary for the conveyance to be signed by the commissioner only,
without affixing the names of the parties whose title is conveyed;
but the names of such parties shall be recited in the conveyance.
§ 400 [480] County to he recorded in. The conveyance shall be recorded
where, by law, it should have been recorded, had it been made by
the parties whose title is conveyed by it. {See Ky. Stat^ sec. 495.)
§ 394. Coafifouitioa of sale. An order fore sale is confirmed there must be a
confirming a report of sale is not equiva- revivor or sale will be void. Wheatley v.
lent to a judgment directing a convey- Hays, 6 R. 517; Barbee v. Fox, 79 Ky.
ance of the property. Gill v. Hewett, 7 588.
Bush 10. If any of the parties to the § d%. Deed miut be approved by court
action die after a sale is confirmed, and The deed of the commissioner does not
before the conveyance of the property, it pass title until it has been approved by
is not necessary to revive the action. Ky. the court. Dickerson v. Talbot, 14 B.
Stat., -sec. 521; but if defendant dies be M. 60; see Miller v. Hall, 1 Bush 229.
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218 REVIVOR OF JUDGMENTS. [tITLB IX
CHAPTER IV.
REVIVOR OF JUDGMENTS.
§ 401. Execution may issue until barred by limitation.
g 402. Execution after death of plaintiff.
§ 403. Who treated as plaintiff by sheriff.
§ 404. Affidavit to procure issual after death of plaintiff.
§ 405. Execution against surviving defendant.
§ 406. Execution improperly issued quashed or enjoined.
§ 407. Death of execution defendant — effect of — revivor.
§ 461 [4S11 Execution may issoe aotil barred by limitatloa. An execution
may be issued upon a judgment at any time until the collection of
it is barred by the statute of limitations, although no execution may
have been previously issued within a year and a day.
§ 402 [4S1] Execntioo after death of plaintiff. The death of a party, after
recovering a judgment, shall not prevent the issuing of an execution
afterward; but —
1. Upon a judgment recovered by one party, execution issued
after his death must be in favor of his representative or successor
who is entitled to the property for which the judgment was
rendered.
2. Upon a judgment recovered by several parties, execution
issued after the death of one must be in favor of the other.
3. Upon a judgment recovered by several parties, execution
issued after the death of all of them must be in favor of the last
survivor's representative or successor who would have been enti-
tled to the property if the judgment had been recovered by such
survivor only.
4. The clerk shall indorse on the execution the names of the
decedent and of such survivor, representative or successor.
5. An execution issued in favor of a survivor, representative or
successor of a decedent shall be subject to the control of the
court whence it issued for the protection of any person interested
therein.
§ 401. (1) Death of phdatiff in execntioo plaintiff and before the indorsement is
does not actually abate either the judp- made is void. Venable v. Smith, 1 Duv.
ment or the execution, but it suspends 195; Morgan v. Winn, 17 B. M. 233.
all proceeding on the execution until (2) Death of plaiotiff io jndsmeat De-
administration is granted, and the clerk fendant need not have judgment revived
authorized to make the proper indorse- in order to prosecute an appeal. Hop-
ments thereon, as provided ; and a re- kins v. Hopkins, 91 Ky. 310.
plevin bond taken after the death of the (3) Llco not released. The lien created
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TITLE IXJ REVIVOR OP JUDGMENTS. 219
§ Mi [4M] Who treated by sheriff as pUintlff. Upon such execution, the
person entitled thereto, according to the indorsement of the clerk,
shall be treated by the sherift* as the plaintiff' therein.
§ 404 [4S41 Affidavit to procure issaal after death of plaiiitiff. The clerk,
before making the indorsements required by subdivision four of
section four hundred and two, shall require the person claiming
right thereto to file an affidavit showing his right. If the affiant
state that he is a personal representative or successor of a decedent,
the clerk shall also require him to file a copy, properly certified, of
his appointment, as such, by a competent tribunal in the United
States; and, unless the appointment was made in Kentucky, the
clerk shall also require of him a covenant, with good surety, that he
will dispose, according to law, of any property which he may receive
upon the execution. If the affiSnt state that he is a devisee of a
decedent, the clerk shall require him to file a copy of the will, certi-
fied by a clerk of a county court in this State in which the will or a
copy is recorded.
§ 405 [**•] Execittioo against snniviiis defendant The death of a defendant
shall not prevent the issuing of an execution against a surviving
defendant.
§ 406 («8«] Execntion inproperiy issued quashed or enjoined. The court may,
after reasonable notice, quash an execution, on the ground that the
representative or successor of a deceased plaintiff* is not properly
stated in the indorsement on the execution ; and during vacation of the
court the defendant may obtain an injunction, upon its being made to
appear that the persons named are not entitled to the judgment on
which the execution was issued.
§ 407 r«sT] Death of execntion defendants-effect of — revivor. 1. The death of
a defendant after a sale of his property under execution shall not
prevent a conveyance of the property. It shall be conveyed in the
same manner, and with the same effect, as if he were living.
2. The levy of an execution is not discharged by the death of
the defendant ; but is suspended according to the provisions of the
next following subsection.
by the levy of the execution is not re- been destroyed does not prevent the is-
leased by the death of the plaintiff, if sual of an execution against the surviv-
within a reasonable time after his death ors when the record is supplied. Fleece
steps are taken to enable the clerk to v. Good rum, 1 Duv. 306.
make the proper indorsement. Morgan § 407« (1) Defltli of tlie owaer of land
V. Winn, 17 B. M. 333. levied oo— effect of. The death of the
I 40S. Death off defendant — effect of. owner of land levied on after the levy
When one of the execution defendants and before sale passed the whole title to
has died, the fact that the judgment has his heirs, and, without a revivor against
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220
REVIVOB OF JUDGMENTS.
[tITLB IX
3. A judgment, or the levy of an execution, may be revived
against the personal representative or successor of a defendant
after the lapse of six months from the time of the qualification of
his first representative; and, against a real representative, after
the lapse of twelve months from the time of the death of the de-
fendant. If, however, owing to the perishable nature of the
property levied on, or the cost of keeping it, a sale of it would be
beneficial, the court, or the judge in vacation, may so order; and
the proceeds shall be held subject to the order of the court on the
rule for a revivor.
4. The revivor may be made upon a rule in the action, ten days'
notice of which shall be served in the same manner as a summons.
The motion for revivor shall be docketed and tried as other mo-
tions ; the court may hear it during any day of the term ; and may
cause execution to issue without delay. {How action revived^ sees,
600 to 612; who is '' successor y'' sec. TSS-^O.)
them, a sale of it under the execu^on
will be void. Huston v. Duncan, 1 Bnsh
205 ; Holeman v. Holeman, 2 Bush 514 ;
Burge V. Brown, 5 Bush 535.
(2) The death of the execution defend-
ant after the levy and before the |ale
does not release the lien created by the
levy, and the lien may be enforced in
equity, as other demands are against the
estate of the decedent. Burge v. Brown.
5 Bush 535 ; 2 Bush 514.
(3) Insaae persoa— reviror of jndfmeat
asaiost A Judgment against a person
who subsequently becomes insane may
be revived against him and his commit-
tee. An execution can not be levied on
the property of a person after be is found
to be of unsound mind. McNees v.
Thompson, 5 Bush 686.
(4) Jndfmeiit nost be verified. A Judg-
ment must be verified, as other claims
against the estate of decedents, before it
can be revived. Curry v. Bryant, 7
Bush 301.
(5) l^plevln lionds— revivor of. Replevin
bonds may be revived in the manner
provided in this section. Chinn v. Har-
rodsburg, S. 1. 8 Bush 290.
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TITLE x] ACTIONS AGAINST ABSENT AND UNKNOWN DEFENDANTS. 221
TITLE X.
PROCEEDINGS IN CERTAIN ACTIONS.
Chaptek I. Actions against absbnt and unknown defendants, 408.
IL Alimony and divorce^ 420.
III. Settlement of trust and decedent's estates* 428.
IV. Enforcing the satisfaction of judgments, 439.
V. Summary proceedings, 444.
VI. Civil proceedings on behalf of the Commonwealth, 450.
VII. Arbitrations and awards, 451.
VIII. Forcible entry and detainer, 452.
IX. Probate op wills, 470.
X. Settlement of accounts of fiduciaries by county court, 471.
XI. Caveats, 473.
XII. Writs of mandamus and prohibition, 474.
XIII. Repealing and vacating charters, and preventing the
usurpation op an office or franchise, 480.
XIV. Sale of real property of persons under disability, 489.
XV. Division of land and allotment of dower, 499.
CHAPTER I.
§
408.
§
409.
§
410.
§
411.
§
412.
§
413.
§
414.
§
415.
§
416.
§
417.
§
418.
§
419.
§
408
moned
ACTIONS AGAINST ABSENT AND UNKNOWN DEPENDANTS.
Time allowed to defend.
Petition against when taken as true.
Bond to be executed before judgment.
Court to control property if bond not given.
Plaintiff may be examined touching his claim.
Set-off or counter-claim disclosed allowed.
Time allowed for new trial except as to divorce.
Copy of judgment served on defendant— effect of.
Manner of serving copy of judgment.
Title of property, how affected by new trial.
Lien created only by attachment or judgment.
Personal judgment forbidden.
[488] Time allowed to defend. A defendant constructively Bum-
shall be allowed at any time before judgment to appear and
(2) Corpontkio. A corporation can not
have two domiciles at the same time, and
a corporation created by the laws of
Ohio was properly sued as a non-resident,
although it may have been incorporated
by the same name by the Legislature of
this State. N- & C. B. Co. v. Woolley,
78 Ky. 523.
(3) Defeose— when may be made. Non-
residents not served with process may ap-
§ m. (1) CompUaace with law aeces-
aary. In all proceedings upon construct-
ive service the provisions of the Code
regulating the same must be literally
followed. Nothing short of a substan-
tial compliance with every prerequisite
will give the court jurisdiction of the
property sought to be subjected to the
pa3rment of the plaintiff's claim. Brown-
field V. Dyer, 7 Bush 505.
/
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222
ACTIONS AGAINST ABSENT AND UNKNOWN DEFENDANTS. [TITLE X
defend the action ; and, upon a substantial defense being disclosed,
time may be given on reasonable terms to prepare for trial. {Hoio
unknown defendant described^ sec. 691 ; venue of action against, sec. 75 ;
provisions concerning constructive service, sees. 67 to 6S.)
§ 409 [«89j Petltloa af ainst when taken as tme. In an action against a
defendant constructively summoned, if the plaintiif file with the
petition his own affidavit stating that any of the allegations thereof
recited in the affidavit are true, and known to be so by the defend-
ant, and that they can not be proved or shown otherwise than by
his answer, so far as the affiant knows or believes, such allegations,
unless denied by the answer, shall be taken as true. {Otherwise must
be proved, sec. 126; how action against revived, sec. 504*)
§ 410 [440] Bond to be executed before Jod^eot. Before judgment is
rendered against a defendant constructively summoned and who has
not appeared, a bond shall be executed, with good surety approved
pear at any time before final Judgment
and make defense or assert claim to af-
firmative relief. Crowley v. Vaughan,
11 Bush 517.
(4) Noo-resideat — attachaieat against.
Sec. 194 and notes.
(5) Waroiaf order— correspoodiog attor*
■ey. Sees. 57, 58 and notes.
I 409. (1) Proof off writias saed on not
necessary. It is not necessary to prove
the execution of a note sued on, although
it may not have been assigned to the
plaintiff. Buclcner v. Bush, 1 Duv. 394;
Gill v. Johnson, 1 Met. 649. Nor the
execution of deeds alleged to have been
made by the defendant. Barrett v. Co-
bum, 3 Met. 511, and see Ball v. Poor, 81
Ky. 26.
(2) In an action against a non-resident
to enforce a lien on land for the purchase
money, the plaintiff alleged that the
first payment had been made, and filed a
deed, which had never been delivered,
reciting the payment. In an amended
petition it was alleged that no part of
the first payment had been paid. Held
that the allegations of the amended pe-
tition could not be taken for confessed.
Jackson v. Speed, 2 Duv. 426.
(3) Proof of non-residency. It was held
under the Code of 1854 that it was neces-
sary to prove that the defendant was a
non-resident. Johnson v. McElroy, 2
Bush 132 ; Buokner v. Bush, 1 Duv. 394.
But see sec. 58-6, which was not in that
Code.
(4) Statements which this aection pro-
vides may be made in an affidavit can
be made in the petition if it is verified.
Tipton V. Wright, 7 Bush 448.
I 410. (1) Appearance— what is. Where a
non-resident defendant filed an answer,
sworn to by him, controverting the alle-
gations of the petition, it entered his ap-
pearance and a personal judgment was
proper, although he expressly stated in
the answer that it was filed without en-
tering his appearance. An answer can
not be filed without entering the appear-
ance of the defendant. Tipton v. Wright,
7 Bush 448.
(2) The filing of an affidavit contro-
verting the grounds upon which an at-
tachment issued is an appearance to the
action. Duncan v. Wickliffe, 4 Met.
118 ; and the execut/on of a bond to dis-
charge the attachment enters appear-
ance, sec. 690; as does filing exceptions
to commissioner's report. Trimble v.
Hunt, 15 R. 707.
(3) The prosecution of an appeal is an
appearance to the action, and upon the
return of the case to the Circuit Court
no bond to the non-resident is necessary.
Gill V. Johnson, 1 Met. 640; Allen v.
Brown, 4 Met. 342.
(4) An appeal taken In the name of and
for a non-resident without his consent
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TITLE X] ACTIONS AGAINST ABSENT AND UNKNOWN DEFENDANTS.
223
by the court, to the effect that, if the defendant shall procure a vaca-
tion or modification of the judgment, the person in whose favor it was
rendered shall restore to the defendant any property or money obtained
under such judgment, restoration of which shall be adjudged. If the
judgment be in favor of persons having distinct interests, such bond
may be executed for each, according to his interest. [This and suc-
ceeding sections shall not apply in actions in which the Common-
wealth is a party plaintiff, and is the beneficial owner of the demand
sought to be collected.] ( Words in brackets added by act 188S. Form
ofbondypage 6^6; personal property must be first scld^ sec, 230 ; executing
bond in attachment case enters appearance^ sec. 690.)
§ 411 [448] Court to cootrol property if bond not fiveo. If the bond men-
tioned in section four hundred and ten be not given, the court may
enter a judgment ascertaining the rights of the parties ; but shall
retain control over and preserve any money or property, or the pro-
ceeds thereof, which may have been attached in the action, until the
expiration of the period allowed to the defendant to appear and
make defense — when, if no defense be made, such money or property
or its proceeds shall be delivered according to the judgment. {See
reference to act 1888, sec. 4^10, et seq.)
does not enter his appearance. Parks v.
Cookers Bush 168.
(5) One who has been constructively
summoned, and appears for the first time
by appealing from the judgment against
him, will only be held to have appeared
in the court below on the day the man-
date is entered, and no judgment can be
rendered against him at that term.
Beazley v. Maret, 1 Bush 466.
(6) An attorney for the plaintiif
should not be allowed in any case to en-
ter the appearance of a non-resident de-
fendant even under a power of attorney.
Ball V. Poor, 81 Ky. 26.
(7) Bond to be executed. A judgment
against a non-resident who has not ap-
peared before the bond required by this
section is executed is erroneous. Allen
V. Brown, 4 Met. 342 ; Harris v. Adams,
2 Duv. 141 ; Anderson v. Sutton, 2 Duv.
480. The bond must be taken and ap-
proved by the court, and an order, direct-
ing the payment of the money attached
upon the execution of the bond, before
the clerk in vacation is unauthorized.
Gill V. Johnson, 1 Met. 649 ; and the bond
must be executed whether real or per-
sonal property is sought to be subjected.
Morrison v. Beckham, 16 R. 294.
(8) Bond — risbts off parciuiser. When
a sale, made under proceedings against
a non-resident, is set aside, the persons
who have received the money under it
should be required to refund, and in order-
ing a resale of the property the purchaser
at the first sale should be given priority
over all other parties, as the bond executed
to the non-resident does not secure to the
purchaser a return of his money if the sale
is set aside. Salter v. Dunn, 1 Bush 311.
(9) Bofld not required— wbei. Where a
judgment obtained by a non-resident is
enjoined, it is not necessary to execute
the bond required by this section. Fel-
lows V. Day, 5 Bush 666.
(10) Veidor aid vendee. The purchaser
of land, who has been put in possession
by a decree, and who is compelled to pro-
ceed against a non-resident to have his
title perfected, may require of his in-
solvent vendor a bond of indemnity to
protect him against any claim the non-
resident may assert within five years, be-
fore he is compelled to pay the purchase
money. Denny v. WicklifTe, 1 Met. 216.
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224
ACTIONS AGAINST ABSENT AND UNKNOWN DEFENDANTS. [TITLE X
§ 412 [MS] Plaintiff may be examined touching his claim. Before rendering
judgment against a defendant constructively summoned and who has
not appeared, the court may cause the plaintift' to appear personally
in court, or before a commissioner, and answer, under oath, interrog-
atories concerning the statements of the petition, or any defense
thereto, including set-offs or counter-claims, and may order the exam-
ination to be reduced to writing and filed with the papers of the
action.
§ 413 [M«] Set-off or connter-claim disclosed allowed. If, upon such exam-
ination, any set-off or counter-claim be disclosed, it may be adjusted
and allowed in the judgment.
§ 414 [M6] Time allowed for new trial except as to divorce, A defendant
against whom a judgment may have been rendered upon constructive
service of a summons, and who did not appear, may, at any time
within five years after the rendition of the judgment, move to have
the action retried; and, security for the costs being given, shall
§ 414. (1) Appeal by— effect of. A de-
fendant, constructively summoned, may
prosecute an appeal and have the judg-
ment reversed, but if he elects to appeal
he is bound by the judgment of the
lower court as much as if he had been
served with process, and is precluded
from having a new trial as provided in
this section. Salter v. Dunn, 1 Bush 311.
A motion must be made to set aside
judgment before an appeal can be prose-
cuted, sec. 763.
(2) The right to have a retrial within
five years does not divest a non-resident
of the right to appeal, and obtain a re-
versal for errors apparent in the record.
If the judgment is apparently regular
and proper, but was unjustly obtained,
the proper remedy is by motion in the
Circuit CJourt. Payne v. Witherspoon,
14 B. M. 270; 1 Bush 466. But see sec.
763, and notes thereto.
(3) "Defendants, constructively sum-
moned, have alternate remedies to retry
the cause : First, by proper proceedings
in the court below, second, by an ap-
peal to this court, but not by both rem-
edies, and in the two courts, at the same
time." Speak v. Mattingly, 4 Bush 310.
(4) New trial— how obtained. A defend-
ant is not entitled to a new trial until he
moves to have the action retried, gives
bond for costs and presents a defense ;
and it is only after his defense is sus-
tained, in whole or in part, that the
court has power to set aside the judg-
ment. Williams v. Taylor, 11 Bush 375.
(5) Although the defendants did not
make a formal motion to have the action
retried, they gave security for costs, and
filed their pleadings of record, an^ these
steps are sufficient to enter their appear-
ance and motion. Bar bee v. Pox, 79 Ky.
588.
(6) IQfhts off when Jadcmeot nodlffled.
When d sale of a non-resident defend-
ant's property has been made under a
judgment, he may, upon succeeding in
even modifying the decree, elect to va-
cate the sale ; and he has the same right
when he takes an appeal and the judg-
ment against him is reversed. Jackson
V. Speed, 2 Duv. 426 ; Lusk v. Salter, 1
Bush 311.
(7) Sale— exceptions to. Where a non-
resident appeared and moved for a re-
trial more than five years after the sale
of the property in an action to foreclose
a mortgage, but within Ave years after
the sale was confirmed, the sale may be
set aside; and when exceptions are filed,
the non-resident has the right to avail
himself of every objection that could
have been made if he had been actually
served with process. 79 Ky. 588; 11
Bush 375.
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TITLE X] ACTIONS AGAINST ABSENT AND UNKNOWN DEFENDANTS. 225
be admitted to make defense; and thereupon the action shall be
retried, as if there had been no judgment; and, upon the new trial,
the court inay confirm the judgment or modify or set it aside; and
may order the plaintiff to restore any money of such defendant paid
to him under it, or any property of the defendant obtained by the
plaintiff under it and yet remaining in his possession, and pay to the
defendant the value of any property which may have been taken
under an attachment in the action, or under the judgment, and not
restored. But this section does not apply to judgments for divorce,
so far as the divorce is concerned. [When the Commonwealth shall
have received money under a judgment, which may thereafter be
modified or set aside under the provisions of said section upon a
retrial, the court, in making the order for the restoration of such
money, shall direct the Auditor of Public Accounts to draw his war-
rant upon the Treasurer for the proper amount in favor of the party
in whose favor the order of restoration may be made, and it shall
thereupon become the duty of the Auditor to draw his warrant in
obedience to such order.] {Words in brackets added by act 1888 ; see
sec. 76S.)
§ 415 [44«j Copy of jud^eot served od defeodaot — effect of. The plaintiff
may, after the judgment, cause a certified copy thereof to be served
on a defendant constructively summoned, excepting infants — other
than married women — and persons of unsound mind and prisoners ;
whereupon, the period in which such defendant is allowed to appear
and have a new trial shall be reduced to one year after such service.
§ 416 :«4Tj Maooer of serviof copy ol jadgmeDt. Service of the copy of a
judgment in this State shall be made and proved in the same manner
as the service of a summons ; and, if out of this State, in the manner
prescribed in section fifty-six as to the service of a copy of the petition
and summons and proof thereof.
§ 417 [Mi] Title of property — how affected by oew trial. The title of pur-
chasers in good faith to any property sold under an attachment or
judgment shall not be affected by the new trial permitted by section
four hundred and fourteen, except the title of property obtained by
the plaintiff and not bought of him in good faith by others.
§ 417. (1) Purchaser of property. An at- the defendant's right to restoration,
torney for the plaintiff, in an action Lusk v. Salter, 1 Bush 311.
against a non-resident, who purchases (2) A stranger may in good faith buy
the property of the non-resident at the the property from the plaintiff before
sale under the judgment, is not a pur- the defendant has entered his appearance
chaser in good faith ; and his voluntary and moved for a retrial, and he will be
conveyance of it to his children does not protected. Kellar v. Stanley, 86 Ky. 210.
make them &07ta/de purchasers, or defeat (3) By "good faith " is meant a pur-
(»5)
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ALIMONY AND DIVORCE.
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§ 418 [Mt] Lien created only by attachment or jiid|:nient l^o lien on the
property of a defendant constructively summoned shall be created
otherwise than by an attachment as is provided in chapter three of
title eight or by judgment; nor shall any person be restrained from
paying or delivering any money or property in his hands belonging
or due to such defendant, by notice indorsed on the summons, or
otherwise than by attachment or judgment.
§ 419 [MO] Personal jod^ent forbidden. No personal judgment shall be
rendered against a defendant constructively summoned, or summoned
out of this State as provided in section fifty-six, and who has not
appeared in the action.
CHAPTER n.
ALIMONY AND DIVORCE.
[see FTJBTHER provisions in KY. STAT., SECTION 2117.]
§ 420. Action to be equitable.
§ 421. Veriflcation of pleadings— interrogatories.
§ 422. Statements of petition to be proved — residence of parties, proof of.
§ 423. Allegations and proof necessary.
§ 424. Maintenance during action.
chase not merely for a consideration but
also without notice to the purchaser of
an adverse claim to the property by
others. 86 Ky. 240.
§ 4IS. (1) Attachment necessary to create
*Uen— when. In an action to subject real
estate owned by a defendant construct-
ively summoned, the levy of an attach-
ment is not necessary U) give the court
jurisdiction to sell the property, if the
plaintiff has a contract lien, or a lien by
virtue of a statute, on the property. In
an action upon a return of no property,
an attachment is not necessary to give
jurisdiction, or create a lien, if the
property sought to be subjected is spe-
cifically described in the petition. Tra-
bue V. Conners, 84 Ky. 283.
(2) Attachment —when necessary to five
Jurisdiction. An attachment is necessary
to give the court jurisdiction in an ac-
tion against a defendant constructively
summoned, unless a lien is asserted. If
the plaintiff has no contract or statutory
lien on the property, unless an attach-
ment be obtained, the judgment of sale
will be void. A lien is not created by the
judgment. Grigsby v. Barr, 14 Bush
330; Green v. Wilson, 8 R. 601; see
Peters v. Conway, 4 Bush 565 and note 1.
(3) Equitable interest in real property
owned by a non-resident is subject to at-
tachment. Bank of Lou. v. Barrick, 1
Duv. 51.
§ 419. Personal Jodcment forbidden. A
personal judgment can not be rendered
against a defendant constructively sum-
moned, and who has not appeared. Har-
ris V. Adams, 2 Duv. 141 ; Griswold v.
Popham, 1 Duv. 170; Berry v. Berry,
6 Bush 594; 2 Duv. 426; 14 B. M.
270.
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227
§ 425. Restoration of property — proceedings to enforce.
§ 436. Annulment of judgment granting divorce.
§ 427. Divorce from bed and board — how annulled.
§ 420 [MTi Action to be in equity. An action for alimony or divorce
shall be in equity. ( Venice of action ^ sec. 76.)
§ 421 [45ai Verificatioo of pleadings — interrofatories, . The pleadings are
not required to be verified. But either party may file interrogatories
to the other, in regard to questions of property involved in the
action, which shall be answered on oath, as interrogatories in other
actions, and have the same eftect. (Provisions concerning interrogator
rieSy sees. HO to 152.)
§ 422 (Mil Statements of petition must be proven — residence of parties, proof of.
The statements of a petition for a divorce shall not be taken as true
because of the defendant's failure to answer, or admission of their
truth ; and the facts as to residence of the parties must be proved
by [one or more credible witnesses]. ( Words in brackets added by act
1892.)
§ 423 [«••] Allegations and proof necessary. The plaintifi*, to obtain a
divorce, must allege and prove, in addition to a legal cause of
divorce —
1. A residence in this State for one year next before the com-
mencement of the action.
§ 42t. (1) AUmony. A husband filed
petition for divorce, and his wife asked
also for a divorce on grounds set up in a
counter-claim. The lower court granted
husband divorce, dismissing counter-
claim ; on appeal the court held that
wife was entitled to alimony, although
divorce was obtained by husband. Davis
v. Davis, 86 Ky. 32; and see, further,
notes to sec. 2117, Ky. Stat., and notes to
sec. 424, Code.
(2) A separate action for alimony may
be maintained. The provisions of the
Code in regard to residence do not apply
to actions for alimony. Hulett v. Hulett,
80 Ky. 364.
(3) AppeaL Court of Appeals has no
revisory power over judgments granting
divorce, even from bed and board. Evans
V. Evans, 93 Ky. 510; Irvin v. Irvin, 16R.-.
(4) Jary trial aet aecestary. The trial
of the issues of fact by a jury in a di-
vorce case is not necessary. 13 Bush
644; Ky. Stat. 2117.
§ 42Z. (1) Credible witaesses are persons
not disqualified by mental imbecility, in-
terest or crime from giving testimony in
a court of justice. Fuller v. Puller, 83
Ky. 345.
(2 ) Evldeace — oae wltaess. In an action
for a divorce on the ground of abandon-
ment, or any other charge except lewd- ^
ness or adultery, the testimony of one
witness may be regarded as sufficient to
sustain it. Stibbins v. Stibbins, 1 Met.
476. See Ky. Stat., sec. 2119, and notes
thereto, as to proof required to sustain
charge of adultery or lewdness.
§ 423. (1) Abaadoameat In a suit by
the wife for divorce the court can not on
the cross-petition of the husband grant
him a divorce on the ground of abandon-
ment, unless the abandonment has con-
tinued for a year before the filing of the
cross-petition. Lee v. Lee, 1 Duv. 196 ;
and it must be alleged and proved that
the abandonment was without fault of
party applying for divorce. Epling v.
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ALIMONY AND DIVORCB,
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2. That the cause of divorce occurred or existed in this State,
or, if out of the State, either that it was a legal cause of divorce
in the State where it occurred or existed, or that the plaintiff's
residence was then in this State.
3. That the cause of divorce occurred or existed within five
years next before the commencement of the action.
§ 424 i4«ij Maiotenance doriof actioo. During the pendency of an action
for divorce or alimony, the court may allow the wife maintenance,
and enforce the payment thereof by orders and executions and pro-
ceedings as in cases of contempt.
Epling, 1 Bush 74 ; Owsley v. Owsley, 1
R. 124; Self V. Self, 1 R. 356.
(2 ) The wi fe is not entitled to a divorce
on the ground of abandonment committed
in another State, unless it is proved that
abandonment was a cause of divorce
there. Hick v. Hick, 5 Bush 670 ; Becket
V. Becket, 17 B. M. 370.
(3) Witnesses testifying to an abandon-
ment should not be allowed to give their
opinions, but should be required to give
the facts and circumstances. Self v.
Self, 1 R. 356.
(4) Refusal of husband to live or co-
habit with his wife amounts to abandon-
ment, although they sleep beneath the
same roof. Evans v. Evans, 93 Ky. 510,
(5) Qrooods of divorce. See Ky. Stat.,
sec. 2117.
(6) lasaoity is not ground for divorce,
and husband is not entitled to divorce
from his wife, although she has been con-
fined in an asylum more than five years.
Pile V. Pile, 94 Ky. 308.
(7) JorisdictiOB. The action must be
brought in the county where the wife
usually resides, if she have an actual
residence in this State, if not, in the
county of the husband's residence (Ky.
Stat., sec. 2120) ; but the right to object
to the jurisdiction may be waived. John-
son v. Johnson, 12 Bush 485.
(8) Residence. The allegation in the pe-
tition that the plaintiff ** now resides and
for some while has resided in Garrard
county " is equivalent to the expression
** usually resides " contained in sec. 76
of the Code. Lochnane v. Lochnane, 78
Ky. 467 ; and see Strode v. Strode, 3 Bush
227 ; and see Ky. Stat., sec. 2120.
(9) Plaintiff must allege and prove an
actual and not merely a legal residence
in this State for one year before com
mencement of action; legal and actual
residence defined. Tipton v. Tipton,
87 Ky. 243.
(10) Residence of husband is deemed
residence of wife. Dunlop v. Dunlop,
3R. 20.
(11) Wife absent in obedience to hosband.
A husband can not sue his wife aa a
non-resident when she is absent from the
State in obedience to his will, or is con
fined by him in an asylum or other
place with no power to return or respond
to a summons or warning order. New
comb V. Newcomb, 13 Bush 544 ; nor is
lunacy ground of divorce. Pile v. Pile.
94 Ky. 308.
(12) Wife may sue non-resident husband,
A wife may bring an action in the county
of her residence against her non resident
husband for divorce. Rhyms v Rhyms,
7 Bush 316. See further as to jurisdic-
tion, notes to sec. 76.
§ 424. (1) Alimony. A man, conceal
ing the fact that he had a living wife,
married a second wife in this State and
abandoned her; the last wife, being
blameless, is entitled to alimony. Strode
v. Strode, 3 Bush 227.
(2) The wife may maintain a separate
action for alimony. Hulett v. Hulett, 80
Ky. 364; Freeman v. Freeman, 11 R.
822.
(3) The court can not, in allowing
maintenance or alimony, divest the hus-
band of his title to his land. The use of
a sufficiency of his land and the abso-
lute title to the personalty allowed is all
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ALIMONY AND DIVORCE.
229
§ 425 [«es] RestoratkMi of property — proceedinfs to enforce. Every judg-
ment for a divorce from the bond of matrimony shall contain an
order restoring any property not disposed of at the commencement
of the action, which either party may have obtained, directly or
indirectly, from or through the other, during marriage, in considera-
tion or by reason thereof; and any property so obtained, without
valuable consideration, shall be deemed to have been obtained by
reason of marriage. The proceedings to enforce this order may be
by petition of either party, specifying the property which the other
has failed to restore ; and the court may hear and determine the
that will be held valid. Quisenberry v.
Quisenberry, 1 Duv. 197.
(4) The fact that husband has no es-
tate is no reason why wife should not be
granted alimony, the husband should be
required to contribute a part of his
earnings. Canine v. Canine, 13 R. 124.
(5) Wife is not entitled to alimony un-
less she is separated from bed and board
of her husband. Freeman v. Freeman,
11 R. 822.
(6) Where husband obtains divorce on
ground that he and his wife have lived
apart Ave years, she is entitled to ali-
mony and attorney fees and costs. New-
some V. Newsome, 95 Ky. 383 ; and the
same rule applies in all cases where he
obtains a divorce without her fault.
Lacey v. Laoey, 95 Ky. 110.
(7) Appeal— fflainteiuiBce. An appeal
may be taken from a judgment making
an allowance to support the wife pend-
ing a suit for divorce. The question as
to the residence of the parties will not
be inquired into upon an application for
maintenance pending the action. No
notice of the application for an allow-
ance is necessary when the petition spe-
cifically asks such an* allowance. Oral
evidence may be heard on the applica-
tion. Lochnane v. Lochnane, 78 Ky.
467. See further, as to costs, Ky.
Stat., sec. 900 ; and as to alimony and
maintenance, Ky. Stat., sees. 2121-2124.
(8) Amount of alimony that should be
allowed, see Ky. Stat., sees. 2122, 2124,
and Newsome v. Newsome, 95 Ky. 383 ;
Lacey v. Lacey, 95 Ky. 110 ; Beal v. Beal,
80 Ky. 675 ; Quisenberry v. Quisenberry,
1 Duv. 197 ; Cravens v. Cravens, 4 Bush
435; as to attorney fees see Cravens v.
Cravens, 4 Bush 435 ; Whitney v. Whit-
ney, 7 Bush 520 ; Thomas v. Thomas, 7
Bush 665 ; Burgess v. Burgess, 1 Duv.
287 ; Ballard v. Caperton, 2 Met. 412.
(9) Wife may make creditors of her
husband a party to her action for ali-
mony in order that she may recover
amount allowed her from them. Cain
v. McHarvy, 2 Bush 263.
(10) Wife who has received property
under a contract with her husband in-
volving their separation must account
for it in a suit by her for alimony. Ev-
ans V. Evans, 93 Ky. 510.
§ 425. (1) Change In law. The Code of
1854, sec. 462, provided that "each
party be restored to all property not dis-
posed of at the commencement of the
action, which either party obtained from
or through the other during the marriage
and in consideration or by reason there-
of." The Gen. Stat., chap. 52, art. 3,
sec. 6 (now Ky. Stat., sec 2121), contains
substantially the same provision. See,
construing this statute, Williams v.
Gooch, 3 Met. 487; Philips v. Philips, 9
Bush 183, and observe the change made
by this Code.
(2) Divorce bars dower. A divorce bars
all right of the wife to dower in land
conveyed by her husband during mar-
riage, and in that of which he may die
possessed. McKean v. Brown, 83 Ky.
208 ; Hawkins v. Ragsdale, 80 Ky. 353.
(3) Restoration of property— gifts. Gifts
from the husband to the wife will not be
restored to him in her suit against him
in which she obtains a divorce from bed
and board. Orr v. Orr, 8 Bush 156 ; and
see further, as to restoration of property,
Golden v. Golden, 82 Ky. 51.
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230 SETTLEMENT OP TRUST AND DECEDENT's ESTATES. [tITLB X
same in a summary manner, after ten days' notice to the party so
failing. {Judgment can not be set aside after temiy sec, 344 / ^^^ <?^^
appeal be taken from judgment granting^ Ky. Stat., sec. 950.)
§ 426 [«e8] Aiinaliiieiit of jodfrnent grantios divorce. A judgment of divorce
from the bond of matrimony may be annulled by the court which
rendered it, upon a petition verified by the parties in person so
requesting.
§ 427 [404] Divorce from l>ed and board — how anDolled. A judgment of
divorce from bed and board may be annulled by the court which
rendered it, at the instance of either party showing just cause there-
for in an equitable action.
CHAPTER III.
SETTLEMENT OF TRUST ESTATES AND ESTATES OF DECEASED
PERSONS.
§ 428. Who may institute action— necessary parties.
§ 429. Averments of petition— sale of real estate.
§ 430. Reference to commissioner — notice to creditors.
§ 431. Order of reference in vacation^lerk may make.
§ 432. Creditor presenting claim becomes party.
§ 433. Creditor failing to present claim — effect.
§ 434. Legatees and distributees liable to creditor.
§ 435. Refunding bond required of distributees and legatees.
§ 436. Creditors may be enjoined from suing.
§ 437. Affidavit and demand necessary — exception.
§ 438. Provisions of this chapter applicable to trust estates.
§ 428 [4«6] Wbo may iostitnte actioo — oecessary parties. 1. A represent-
(4) A divorce restored to the wife land and was not intended to settle any contro-
owned by her and which her husband versy concerning the property. Ques-
had conveyed during their marriage. tions about the property are to be set-
Hays V. Sanderson, 7 Bush 489. tied by subsequent proceedings. Williams
(5) To compromise a suit for divorce v. Qooch, 3 Met. 487. See further, Ben-
the husband conveyed to trustees for the nett v. Bennett, 95 Ky. 545, in which it is
use of his wife and children a tract of doubted if this section applies to property
land, and by the judgment of the court about which an issue is made as to how
a divorce from bed and board was ren- it was acquired.
dered. Afterward the husband obtained (7) Settlement ia coatemplation of separa-
an absolute divorce. His petition subse- tlea. A conveyance made by the hus-
quently filed to have the trust deed set band to trustees for the use of the wife,
aside was properly dismissed, the proper- in contemplation of an immediate sepa-
ty not having been received in considera- ration between them, is valid. Gains v.
tion of or by reason of marriage. Flood Poor, 83 Met. 503 ; Loud v. Loud, 4 Bush
y. Flood, 5 Bush 167. 453 ; and see Evans v. Evans, 93 Ky. 510.
(6) The order of restoration contem- § ^* (1) Action to settle estate may be
plated by this section is a formal one, brought within less than six months from
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231
ative, legatee, distributee or creditor of a deceased person may bring
an action in equity for the settlement of his estate.
2. The representatives of the decedent and ell persons having a
lien upon, or an interest in, the property left by the decedent, or
any part thereof, and the creditors of the decedent, so far as
known to the plaintiff, must be parties to the action as plaintiffs or
defendants. ( Venue of action^ sees. 66 j 66. Meaning of " represent-
ative;' sec. 7SS—18, 19.)
§ 42f [400] Avermeiits of petition — sale off real eiidit. In such an action,
the petition must state the amount of the debts, and the nature andv
value of the property, real and personal, of the decedent, so far as
known to the plaintiff; and, if it shall appear that the personal estate
is insufficient for the payment of all debts, the court may order the
real property descended or devised to the heirs or devisees who may
be parties to the action, or so much thereof as shall be necessary, to
be sold for the payment of the residue of such debts.
§ 430 [40T] Reference to commissioner — notice to creditors. In such actions,
the court shall make an order for the creditors of the decedent to
appear before a commissioner, to be appointed by the court, and
appoiDtment of personal representative.
Maddox v. Williams, 5 R. 606 ; Ky. Stat.,
sec. 3847.
(2) Pirtiet. In action to settle an
estate no persons except those mentioned
in this section are necessary or proper
parties. Citizens Nat. Bank v. Boswell,
93 Ky. 92. While all creditors are not
necessary parties, they are entitled to be
heard, and in some cases the general
creditors are necessary parties, as where
some of the creditors are claiming liens
upon property that the testator has
charged with the payment of his general
debts. Payne v. Johnson, 95 Ky. 175.
(3) Practice. The statute which provides
for the settlement and distribution of in-
solvent estates, by an action to be brought
for that purpose by the administrator,
contemplates the existence of personal
estate and its due and proper adminis-
tration, and has no application where the
estate of the decedent does not pass into
the hands of an administrator, and where
no duties or liabilities can devolve upon
him. Thumb v. Gresham, 2 Met. 306.
(4) Riskt of creditors to contest claims.
In an action for the settlement of a de-
cedent's estate, one of the principal
claims flied was that of a ward, based on
a settlement made in the County Court.
The other creditors of the decedent had
the right to impeach and surcharge the
settlement made in the County Court,
and thereby reduce the claim of the ward
against the estate. Alsop v. Barbee, 14
B. M. 522.
§ 429. (1) Jadgment to sell more land
than necessary. In an action to settle the
estate of a decedent, a judgment order-
ing a sale of the whole tract, when it is
only necessary to sell a portion of it to
pay the debts, is void if there are infant
defendants. Only a sufficiency of the
land to pay the debts should be sold.
Gill v. Given, 4 Met. 197. See Thornton
V. McGrath, 1 Duv. 349; and see. 493-3.
(2) Sale off real estate may be ordered
before an order is made referring case to
a commissioner for proof of claims and
before there is any report of claims if
court is satisfied that the personal estate
is not sufficient to pay the debts. Har-
lammert v. Moody, 15 R. 839.
% m. (1) Claims— when to be filed.
After an action to settle an estate is
commenced, it is in the sound discretion
of the chancellor to prescribe the time
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prove their claims before a certain day to be named in the .order,
notice of which shall be given by advertisement in a newspaper ; or,
if none be published- in the county, then by such other modes as the
court may judge best calculated to give such creditors actual notice
of the order; and, in addition to the advertisement in a newspaper,
the court may direct publication in other modes.
§ 431. Order of refereii^iii vacation — clerk may make. The clerk of the
court shall, during vacation, have the powers conferred on the court
by section four hundred and thirty, except that the creditors shall be
required to appear before the master commissioner in chancery for
the county; and, if no newspaper be published in the county, the
clerk shall cause the notice to be posted at the court-house door and
at two or more other public places in the county.
§ 432 [4«a] Creditor presentiof claim becomes party. A creditor appearing
before the commissioner and presenting his claim becomes thereby a
party to the action, and is concluded by the final judgment of the
court allowing or rejecting his claim.
§ 433 [«••] Creditor failing to present claim — effect Creditors failing to
appear and prove their claims, agreeably to such order, shall have no
within which creditors may present their
claims. Gray v. Lewis, 79 Ky. 453.
(2) Duty of creditor to file claim. When
a creditor is made defendant to a suit to
settle an estate, and served with process,
he should be compelled to either set up
or abandon his claim ; and, if he fails to
present it, its recovery against the ad-
ministrator, legatees and distributees is
barred. Hood v. Hood, 80 Ky. 39.
(3) Order of reffereoce. As the Code im-
peratively requires an order of reference
to be made in all cases for the settlement
of estates of deceased persons, such
orders are ministerial, and not judicial,
acts. Smith v. Cochran, 7 Bush 548.
(4) Limitation. Filing claim with the
administrator of the principal, in a suit
to settle his estate, did not prevent the
statute of limitation from running as to
the surety, although the claim was filed
by request of the surety. Harris v.
Moberly, 5 Bush 556.
(5) Practice regarding presenting off claims.
The usual practice in actions for the set-
tlement of the estates of deceased persons
is for creditors to present their claims,
verified and proved as required by
statute. Upon exceptions to the master's
report, the sufficiency of the verification
and proof can always be inquired into;
and, in such cases, it seems allowable to
investigate and pass upon the merits of
the claim. But a creditor has a r^ht
to file his petition setting up his claim,
and, when it is controverted, he has the
right to demand that the grounds of de-
fense be stated, according to the rules of
pleading, in the form of a verified an-
swer, or by exception containing the
denials or allegations necessary to present
a defense. Horner v. Harris, 10 Bush
357. See Francis v. Smith, 1 Duv.
121.
§ 432. (1) Creditor presenting claim be-
fore commissioner becomes a party to
the action and is concluded by final judg-
ment. Heidrich v. Silva, 89 Ky. 422.
(2) Practice in presenting claims. See
note 5, sec. 430.
§ 433. Failure to present claim. An in-
fant creditor being made a party to a
suit for the settlement of an estate, and
having failed to present his claim, has
no claim against the administrator after
he has paid out the entire estate. The
judgment of distribution is binding on
the infant as long as it is in force. Stull
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claim against the executor or administrator who has actually paid
out the estate in expenses of administration, and to creditors, lega-
tees or distributees.
§ 434 [4T«] Lef atees and distributees iialile to creditor. Legatees and distrib-
utees shall be liable to a direct action by a creditor to the extent of
estate received by each of them, notwithstanding the failure of the
creditor to appear and the discharge of the personal representative
as prescribed in the preceding section ; and that liability shall con-
tinue during the same period that the liability of the personal repre-
sentative would have continued but for said discharge.
§ 435 [4T1] Refunding bond required of distributees and legatees. [The court
may, in its discretion, without motion, and shall, on motion of any
party in interest, require the distributee or legatee, before receiving
his distributable share of legacy, if received within five years after
the grant of administration, to execute bond, with good surety to
the Commonwealth, conditioned to pay his proportion, not exceeding
the amount received by him, of any debt which may appear against
the estate of the decedent within said period.] {Sec. as amended by
act 1880. Form of bond^ page 6^6y and see bond in Ky. StaLy sec. 3843.)
§ 436 [«TS] Creditors may be enjoined from' suing. Upon the institution
of the action mentioned in this chapter, an order may be made
V. Davidson, 12 Bush 167 ; and see note 2
to sec. 430.
§ 434. (1) Actioa by iafaat ward against
creditors. An infant ward failed to pre-
sent her claim in the settlement and dis-
tribution of the estate of her guardian,
under the act of 1856. After arriving at
age, she could sue the creditors who had
received the estate, and require them to
contribute pro rata to the payment of
her claim. Roberts v. Phillips, 11 Bush
11.
( 2 ) Creditor to present ciaim^bar. When
devisees, as well as creditors, are made
parties, and one of the creditors holds a
claim which, if allowed, -would alter the
division of the estate, such creditor
should be required to present his claim,
or have it barred against legatees and
distributees, as well as the administra-
tor. Hood V. Hood. 80 Ky. 39.
(3) Legatee or dlstribnteet who has re-
ceived assets to the extent of the cred-
itor's claim, may be sued for the whole
amount of claim and required to look to
his co-distributees for contribution. Ru-
bell V. Bushnell, 91 Ky. 251 ; and see Ky.
Stat., sec. 2084, for further provisions
concerning liability of heirs.
(4) It is error in action against heirs to
render a Joint judgment against them.
The amount each is liable for should be
ascertained and judgment rendered
therefor. Ransdell v. Threlkeld, 4 Bush
347.
§ 435. (1) Reffandiof bond. It was held
under the Code of 1854, sec. 471, to be
error to render judgment even by de-
fault in favor of heirs or distributees
against an administrator, without re-
quiring a refunding bond. Mountjoy v.
Pearce, 4 Met. 98; but observe amend-
ment and see Fleming v. Jones, 12 Bush
503 ; and Ky. Stat., sec. 3843.
(2) Refunding bond can not be re-
quired of devisees by an executor after
suits against him have been barred by
lapse of time. Grigsby v. Wilkinson, 9
Bush 91.
§ 436. (1) lajanction does not stop liml-
tatioa. Where suit is instituted to settle
a decedent's estate, and the creditors
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SETTLEMENT OF TRUST AND DBCEDBNT'S ESTATES. [TITLE X
enjoining the prosecution of actions against the representatives of a
decedent, by creditors, for their demands. But such enjoining shall
not be made, unless the action for the settlement of the estate be
commenced within three years after the qualification of the personal
representative.
§ 437 [«TS] Affidavit and demand necessary— exception. The provisions of
sections thirty -five to thirty-nine, inclusive, article two, chapter thirty-
nine. General Statutes [now sections 3870 to 3874, both inclusive, of
article one, chapter ninety-eight, of the Kentucky Statutes] concern-
ing decedent's estates, are adopted as part of this Code, except that the
are enjoined as provided in this section,
the injunction does not stop the statute
of limitation from running against the
creditors, as it,does not stay proceedings
on claims, but only prescribes that they
shall be prosecuted in that action. Biggs
V. L. & B. R. R. Ck)., 79 Ky. 470 ; Barnes
V. Green, 3 R. 253.
(2) Injunction granted under this sec-
tion did not prevent a ward from bring-
ing an action against estate of county
judge to recover damages for failure to
take a sufficient bond from guardian.
Com. v. Netherland. 87 Ky. 195.
§ 437. (1) Affidavit -snffldency off. It is
necessary that the affidavit of the claim-
ant should state that there is no "offset
or discount" against the claim. "Off-
set " alone is not sufficient. If the debt is
an account it must be proved by the affi-
davit of a competent witness, stating
that he knows it to be just and correct.
Trabue v. Harris, 1 Met. 597; and see
Ky. Stat., sec. 3870.
(2) The affidavit must state that there
is no offset or discount; that there is no
just offset or discount will not do. Every
fact touching the validity of the claim
which, in a suit thereon, it would be nec-
essary to aver in the petition, should be
proved by the evidence, tendered to the
personal representative. Leach v. Ken-
dall, 13 Bush 424 ; Prewitt v. Wortham,
79 Ky. 287 ; see Greer v. Powell, 1 Bush
489 ; if the debt be evidenced by note
or other writing, the presentation of the
note, accompanied with the affidavit of
the claimant, is all that is necessary ; but
if the claim is an account, it must be
proved by the claimant and another per-
son, unless it can not be proved by any per-
son except the personal representative ;
and if he refuses to give an affidavit, the
affidavit of the claimant alone will be
sufficient. Trabue v. Harris, 1 Met. 597.
See Ky. Stat., sec. 3870, and note require-
ment as to verification of accounts.
(3) Witness in verifying claim must
speak of his own personal knowledge, and
when he states facts unqualifiedly it will
be presumed that he does so. Sherley
V. Sherley, 13 R. 565.
(4) Agent may make affidavit— waiver. The
affidavit may be made by an agent if the
creditor is absent from the State ; and
the demand may be waived by the ad-
ministrator before or after suit. See this
case for a statement of facts evidencing a
waiver. Howard v. Leavell, 10 Bush 481.
(5) Claimant sbonld file copies of records
with his claim, when they are necessary
to support it. Sherley v. Sherley, 13
R. 565.
(6) Commonwealtli. The statute requir-
ing the verification of claims does not
apply to the Commonwealth, and claims
due to the State need not be verified or
payment demanded. Arnold v. Com.,
80 Ky. 135.
(7) Credit by claims not verified may be
allowed an administrator in an action
against him for the settlement of the
estate, provided it appears that the
claims are just. Terrell v. Rowland, 86
Ky. 67.
(8) Demand when not necessary. Plaint-
iff's petition charged that defendant's
testator had, as agent, sold lands for the
benefit of plaintiff, for which he never
accounted, and that he had no knowl-
edge of the fiducial transactions of the
agent ; that the defendant, as executor.
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TITLB X] SBTTLBMKNT OF TRUST AND DECBDENT's ESTATES.
235
demand therein mentioned need not be made, if the personal repre-
sentative of the decedent be a non-resident of this State or shall
have been absent therefrom four months. {These sections of statute
require creditor to make affidavit and demand payment. Form of affida-
vit, pages 6^8, 629.)
held the only evidences thereof, and re-
fused to make a settlement or permit
them to be seen, and prayed for a dis-
covery and settlement. Held that the
affldavit and demand, before filing the
petition, were not required by the stat-
ute, but after discovery, and before a co-
ercive settlement, the affidavit should
be made. Fox v. Apperson, 6 Bush
653.
(9) Demand is not necessary when suit
is commenced before the death of the
debtor, but no judgment can be ren-
dered until the affidavit required by the
statute is made. Buford v. Guthrie, 14
Bush 677; Worthly v. Hammond, 13
Bush 511. And ** if the personal repre-
sentative has not assets in his hands with
which to pay debts against the estate,
there is no necessity for creditors to pre-
sent their demands to him for payment.'*
Grey v. Lewis, 79 Ky. 453.
(10) A surety who pays the debt of
his principal after the death of the lat-
ter is not required to make demand of
his administrator before suit brought to
recover what he paid as surety. Luck-
ing V. Gegg. 12 Bush 298.
(11) A debt created by the personal
representative is not required to be veri-
fied by the affidavit of the claimant.
Berry v. Graddy, 1 Met. 553.
(12) Demand is only necessary when
the suit is against the personal repre-
sentative, but before judgment is ren-
dered on a claim against the estate of a
decedent in an action where there is
no personal representative, the affidavit
should be made. Perry v. Seitz, 2 Duv.
122. See Johnson v. Belt, 4 Bush 405 ;
Cockrill V. Mize, 11 R. 637.
(13) In a petition against an adminis-
trator it is not necessary to allege that
demand was made of him before suit
brought If demand, accompanied by
the proper affidavit, was not made, the
administrator can proceed by rule to
have the action dismissed without preju-
dice. Rogers v. Mitchell. 1 Met. 22.
(14) Demand is not necessary when an
action to settle estate is pending and a
reference has been made to the master to
audit and report claims. Orr v. Orr, 10
R. 755 ; Gay v. City of Lou., 93 Ky. 349.
(15) Deouuid most be made before salt
is brought, and the failure to make it
can not be cured by a subsequent com-
pliance, set up in an amended petition.
Rogers v. Mitchell, 1 Met. 22. See Ky.
Stat., sec. 3870.
(16) Interest oo claims. Although a
claim has not been verified and payment
demanded within one year after the ap-
pointment of the personal representative,
interest may be allowed if the personal
representative has waived demand, and
no person will be affected by allowing in-
terest except himsef. Croninger v.
Mart hen, 83 Ky. 662 ; but as a rule it is a
condition precedent to the recovery of
interest on a claim that demand be made
within the year, and this rule is not
waived by partial payments made on a
claim not so presented. Jett v. Cockrill,
85 Ky. 348.
(17) Jadcment— verifflcatioa of. In a pro-
ceeding to revive a judgment, the judg-
ment should be verified by affidavit, and
demand made. Curry v. Bryant, 7 Bush
301. And when the defendant dies pend-
ing the action the claim should be veri-
fied. Mathews v. Jones, 2 Met. 254.
(18) Objection to be made by rule. If affi-
davit and demand have not been made,
the proper time to make the objection by
rule is before answer is filed. Thomas v.
Thomas, 15 B. M. 178. But in Nuttall
V. Brannin, 5 Bush 11, it is held that a
rule can be obtained against the plaint-
iff after answer is filed to show cause
why petition should not be dismissed for
want of verification and demand ; but
it is too late to make objection after
judgment. Cockrill v. Mize, 11 R. 037.
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ENFORCING THE SATISFACTION OF JUDGMENTS,
[title X
§ 438. Provisions off tliis chapter applicable to trust estates. The foregoing
provisions of this chapter shall, so far as applicable, regulate pro-
ceedings for the sale of property held in trust, by virtue of the pro-
visions of article two, chapter forty-four. General Statutes [now article
two, of chapter fifty-four, of the Kentucky Statutes] or assigned by a
debtor for the payment of debts generally; but subsection two of
section four hundred and twenty-eight shall not be so construed as
to require all creditors holding liens upon the property by virtue of
the statute, or under the deed of assignment, to be made parties.
CHAPTER IV.
ENFORCING THE SATISFACTION OF JUDGMENTS.
§ 439. Proceedings to enforce — when allowed — parties.
§ 440. Answers to be verified— court may require full disclosure.
§ 441. Attachment without affidavit or bond.
§ 442. Lien on property of defendant — how created.
§ 443. Surrender of property compelled by court.
§ 439 [4T4] Proceediflfs to eoforce wheo allowed — parties. After an execu-
tion of Jieri facias, directed to the county in which the judgment was
(10) Set-off— coaBter*claioi. A claim
against a decedent's estate, presented
in a set-off or counter-claim, must be
verified and proved in the manner re-
quired by law in the case of claims sued
upon by original action, but demand is
not necessary. An affidavit in the body
of the pleading is not sufficient. It
should be verified by separate affidavit,
filed with the pleading. Warfield v.
Gardner, 79 Ky. 583.
(20) Taxes, claim for, must be verified
and payment demanded. Gay v. City of
Lou.,93Ky. 349.
(21) Waiver of objection. It is too late
after judgment to object to claim for
want of verification. Gray v. Marshall,
12 R. 103 ; Cockrill v. Mize, 11 R. 637.
§438. (1) Parties to action. In an action
to settle a trust estate, all persons having
an interest in the property, or any part
thereof, conveyed by the deed, and the
creditors of the assignor, so far as known,
except creditors holding liens upon the
property, should be made parties to the
action, either as plaintiffs or defendants.
Dobyns v. Dobyns, 79 Ky. 95.
(2) Suit by one creditor inures to the bene-
fit of alL A suit by one creditor under
the act of 1856, if commenced in time
and prosecuted to a successful termina-
tion, inures to the benefit of all the cred-
itors, whether they sue or not. Roberts
V. Phillips, 11 Bush 11 ; 89 Ky. 422 ; and
a creditor who has filed his action in
time can not dismiss it, nor can it be
filed away by the court so as to defeat
the claims of other creditors who had
filed their claims and made themselves
parties to the action. Sawyers v. Lang-
ford, 5 Bush 539 ; nor can a creditor by
refusing to appeal from judgment dis-
missing his claim deprive other creditors
of the right to prosecute an appeal.
Heidrich v. Silva, 89 Ky. 422 ; and see
Linthicum v. Fenley, 11 Bush 131.
(3) Verification off claims is now required
by Ky. Stat., sees. 90, 1917.
§ 4a9. (1) Action in circuit court on Jndr
ment off inferior court The circuit court
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TITLE X] ENFORCING THE SATISFACTION OF JUDGMENTS.
237
rendered, or to the county of the defendant's residence, is returned
by the proper officer, either as to the whole or part thereof, in sub-
stance, no property found to satisfy the same, the plaintiff in the
execution may institute an equitable action for the discovery of any
money, chose in action, equitable or legal interest, and all other
property to which the defendant is entitled, and for subjecting the
same to the satisfaction of the judgment; and in such actions, per-
has jurisdiction of an action to subject
an equitable interest in real property to
the satisfaction of a judgment rendered
in the quarterly court, upon which an
execution had been returned, no property
found, both from the quarterly and cir-
cuit court. Jones v. Jeflfress, 11 Bush
636 ; but return from both courts is nec-
essary. Clements v. Waters, 90 Ky. 96 ;
Behan v. Warfield, 90 Ky. 151. And see
Burnes v. Cade, 10 Bush 251.
(2) Action may be brought in circuit
court to subject personalty, upon a re-
turn of no property in a justice's court.
Austin V. Payne, 7 Bush 480; but not
land that can be levied on under an execu-
tion. 90 Ky. 96 ; Mansfield v. Wilkinson,
10 R. 276; Weatherford v. Myers, 2 Duv.91.
(3) Bastardy case— to enforce jndcment in.
In a bastardy proceeding, judgment was
rendered in the county court against the
father. On a return of no property
on this judgment, the circuit court had
jurisdiction to set aside a fraudulent
conveyance ma^e by the father, and sub-
ject the property. Brightwell v. Com.,
79 Ky. 537.
(4) Coaclnslveaess of Jadfmeat Until
reversed or vacated as provided by law,
or attacked for fraud, judgment upon
which action on return of no property is
based is conclusive, and defendant can
not show he was not before court in con-
tradiction of the record. Stevenson v.
Plournoy, 89 Ky. 561 ; but see as to rights
of trustee and heirs to contest judgment
against cestui que trust or personal repre-
sentative. Roberts v. Yancey, 94 Ky. 243;
Willis v. Roberts, 90 Ky. 122 ; 78 Ky.
413 ; 89 Ky. 561.
(5) Creditor may maintaia action upon
return of no property, and in such action
acquire a lien upon and subject property
that was and is subject to execution. He
has a right to rely upon officer's return
although it be false. Clements v. Waters,
90 Ky. 96.
(6) Execntioa nast be directed to and ex-
ecuted by an officer authorized to execute
it, or the return will not authorize pro-
ceedings under this chapter. Johnson
V. Elkin, 90 Ky. 163 ; see notes to sec.
667 as to what officers must execute ex-
ecutions.
(7) Qaralshees. As to proceedings
against, see notes to sees. 223, 225.
(8) Interest on costs of former action
should not be allowed. Cockrill v. Mize,
11 R. 637.
(9) Jadcmeat— actloa on. The only ac-
tion that can be maintained on a judg-
ment of a court of this State is the equi-
table action to enforce its satisfaction,
provided in this section. Davidson v.
Simmons, 11 Bush 330.
(10) Jttdf meat superseded. After a judg-
ment has been superseded and the bond
executed, no action can be brought to en-
force its collection. Johnson v. Will-
iams, 82 Ky. 45.
(11) Officer's retnru on execution. A re-
turn by a deputy sheriflf of *' no property
found," without adding** in my baili-
wick," is sufficient. Evans v. Wait, 5 J.
J. M. 110.
(12) A return of '* no property found,"
made two days after the issual of the
execution, was held sufficient. Dana v.
Banks, 6 J. J. M. 219.
(13) Petition — necessary allegatlotts in.
The petition must allege that the execu-
tion was directed to the county of defend-
ant's residence, or to the county where
the judgment was rendered, and that it
was returned no property found by the
proper officer. An allegation that plaint-
iff **had an execution issued, and re-
turned no property found, by the sheriff,*'
is insufficient. Maddox v. Pox, 8 Bush
402 ; Tanner v. Howard, 1 R. 343.
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ENFORCING THE SATISFACTION OF JUDGMENTS.
[title X
sons indebted to the defendant, or holding money or property in
which he has an interest, or holding evidences or securities for the
same, may be also made defendants. (Venue of action^ sec, 70.)
§ 440 [«T5] Answers to be verified — court may reqaire full disclosare. The
answer of each defendant shall be verified by his oath, and not by
that of an agent or attorney, and the court shall, if necessary, enforce
full and explicit discoveries in such answers by process of contempt.
§ 441 [4Te] Attachment witliout affidavit or bond. In such action the plaint-
iff* may have an attachment against the property of the defendant in
the execution, similar to the general attachments provided for in
chapter three, of title eight, without either the affidavit or bond
therein required.
§ 442 [4TT1 Lien on property of defendant — liow created. A lien shall be
created on the property of the defendant by the levy of the attach-
ment ; or by service of the summons, with the object of the action
indorsed thereon, on the person holding or controlling his property.
{Except against defendant constructively summoned^ sec. 4,18; form of
indorsement, page 634')
(14) ** The failure to aver in terms that
judgment was still unsatisfied, if a ma-
terial defect, was cured by an amend-
ment alleging that fact, and did not
vitiate the levy or lien created by the
attachment." Lewis v. Quinker, 2 Met.
284.
(15) In an action upon a return of ** no
property found " on an execution against
an administrator to subject property
voluntarily conveyed by the decedent
after the creation of plaintiff's demand,
it is necessary to allege in the petition
against the fraudulent vendees the facts
constituting the original cause of action.
In such case, the defendants may contro-
vert the justness of the demand, not-
withstanding the judgment against the
administrator. Alexander v. jQuigley, 2
Duv. 399, and see note 4.
(16) Property frandaleatly conveyed.
Either an attachment or a return of no
property must be obtained before a court
of equity will entertain a petition to set
aside a voluntary or fraudulent convey-
ance in order to satisfy a legal demand.
Martz V. Pfeifer, 80 Ky. 600. As to the
right to subject property purchased by a
debtor and conveyed to his wife and
children, see Hanby v. Logan, 1 Duv. 242.
(17) Second personal Indfrnent in action
on return of no property is erroneous.
Smith V. Belmont, 11 Bush 390; Farmer
v. Porch, 5 R. 933.
(18) Waiver of error. It is too late after
an issue and trial on the merits in lower
court to raise question that there was no
return of ** no property. " Behan v. War-
field, 90 Ky. 151.
§ 441. Neither affldavlt nor bond neces.
sary to obtain an attachment in an ac-
tion upon a return of no property. Lewis
V. Quinlcer, 2 Met. 284.
§ 442. (1) Attacliment— when not neces-
sary to create Uen. An attachment is not
necessary to create a lien if the property
sought to be subjected be specifically de-
scribed in the petition. 'A lien is created
on such property when the petition is
filed. Trabue v. Conners, 84 Ky. 283;
Parsons v. Meyburg, 1 Duv. 206 ; Ward
v. Robinson, 1 Bush 294; Murphy v.
Ochran, 80 Ky. 339.
(2) Money belonging to a railroad cor-
poration can not be attached by the
service of a summons, with the object
of the action indorsed thereon, upon the
president of the company. Service upon
him was but service on the company.
There is no section of the CJode which
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TITLE X]
SUMMART PROCBBDINaS.
239
§ 443 [4TS] Snntiider of property compelled by court. The court shall enforce
the surrender of the money or securities therefor, or of any other
property of the defendant in the execution, which may be discovered
in the action ; and for this purpose may commit to jail any defendant
or garnishee failing or refusing to make such surrender, until it shall be
done or until the court be satisfied that it is out of his power to do so.
CHAPTER V.
SUMMARY PROCEEDINGS.
§ 444. Judgment obtained on motion — ^when.
§ 445. Notice of motion.
§ 446. Notice— requisites of.
§ 447. Motion deemed abandoned — ^when.
§ 448. Motion may be made any day of term.
§ 440. Written pleadings not required— judgment.
§ 444 [4Tt] Jodsment obtalflcd on motioo — when. A judgment may be
obtained, on motion, by a surety against his principal or co-surety
for money paid; by a client against his attorney for money collected
or property received; by a party or officer against a surety for costs;
provides that an attachment lien can be
created upon intangible property by the
service of any character of process upon
the judgment defendant alone. N. <Sb 0.
Bridge Co. v. Douglass, 12 Bush 673;
see now Ky. Stat., sec. 814, as to enforce-
ment of judgments against railroad com-
pany.
(3) When the action is for the dis-
covery of and subjection of any prop
erty owned by the defendant, no lien is
created on his property unless an attach-
ment is obtained, or summons with in-
dorsement executed on person holding
his property. Ward v. Robinson, 1 Bush
294 ; Lewis v. Quinker, 2 Met. 284.
(4) Property exenpt—lery— -liea. As to
property exempt from attachment, see
note 2, sec. 199 ; as to suiBciency of levy,
see notes to sec. 203; as to lien created by
attachment, see notes to sec. 212.
(5) RiilnMd campmuy — enforcement of
judgment against. Ky. Stat., sec. 814.
(6) SefYke of samawiw— Ilea. By the
service of a summons, with the object of
the action indorsed on it, upon the person
holding or controlling the defendant's
property, the plaintiff acquires a lien on
all the defendant's property in his pos-
session. Hufman v. Thomas, 2 Duv. 105;
but see sec. 418, providing that a lien
can not be created on property of defend-
ant constructively summoned by indorse-
ment on summons.
(7) Indorsement upon summons or
levy of attachment is not necessary when
the land sought to be subjected is de-
scribed in the petition. Bryant v.
Bryant, 14 R. 358.
I 444 (1) Snmnary proceedings. The
collection of appeal bond can not be en-
forced under the provisions of this chap-
ter. Stephens v. Miller, 80 Ky. 47.
(2) A surety in the bond executed by
the defendant to retain possession of
property, as provided in sec. 188, can not
be proceeded against by motion. Gay v.
Morgan, 4 Bush 606.
(3) A trustee appointed by the court
to invest funds, and his sureties in his
bond as such trustee, in case of his fail-
ure to invest the funds as required by
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SUMMARY PBOCEEDINGS.
[title X
and by a party against an officer for money collected or property
received, and for the damages which such party is entitled to recover;
and in all other cases specially authorized by statute ; and the service
of the notice shall be regarded as the commencement of the pro-
ceeding.
§ 445 [480] Notice off motioo. Notice of such motion shall be served on
the party against whom the judgment is sought, at least ten days
before the motion is made. (By whom, and how, served, sees. 6^4 to 630,
§ 446 [4S1] Notice — reqnlsites off. The notice shall state the nature and
grounds of the motion, and the day on which it will be made.
§ 447 [481] Motion deemed abaodoned — wheo. Unless the motion be made
or entered on the motion docket on the day specified in the notice,
it shall be considered as abandoned.
§ 448 [488] Motioo may be made any day off term. Such motion mentioned
in this chapter may be made on any day of the term of the court.
§ 449 [484] Written pleadiii|:8 not required — ^jud^ent. The motion may be
heard and determined upon or without written pleadings, and judg-
ment shall be given according to law and the rules of equity.
the court, may be proceeded against by
rule, and required to pay such funds
back into court. Such proceedings by
rule may be instituted by the court on
its own motion. Dickinson v. Trout, 8
Bush 441.
(4) A purchaser of land sold under the
judgment of a court may recover rent
accruing after the confirmation of his
purchase by motion against the tenant,
upon notice duly executed. Cooper v.
Baker, 2 Bush 244.
(5) The provisions of this chapter have
not repealed the right of a surety who
has paid a judgment to have it trans-
ferred to him as provided in the Gen.
Stat., chap. 104, sec. 9 [Ky. Stat., sec.
4666]. Alexander v. Lewis, 1 Met. 407.
(6) The collection of costs which a
party binds himself to pay by a recogni-
zance entered upon the record may be
enforced by summary proceedings. Kin-
ney v. O'Bannon, 6 Bush 692.
§446. (1) Notice — safficleacy of. In
determining the sufficiency of a notice
on motion for judgment on a bond ex-
ecuted under section 645 of the Code,
it should be considered in connection
with the bond. Smith v. Wells, 4 Bush 92;
and see further, as to sufficiency of notice,
Bunnell v. Thompson, 12 Bush 110;
Mooar v. Qov. City Nat. Bk., 80 Ky. 305.
(2) When a party appears to a notice
defective in form, and without objection
makes defense to the merits, he waives
the right to object to It because not suf-
ficient. Brown v. Gibson, 78 Ky. 602.
% 447. (1) Motion to be entered on day
specified. The motion must be made or
entered on the day specified in the notice,
and if this is not done a judgment
rendered pursuant to the notice will be
a nullity. Notice was given a sheriff
and his sureties that on fourth day of
the June term a motion would be made
for judgment. On the third day of the
term the notice was filed and ordered to
lie over ; no further step was taken at
that term. A judgment rendered the
next term by default was a nullity.
Foster v. Wade, 4 Met. 253 ; see Mer-
shorn v. Com., 2 Met. 371.
(2) Motion may either be made in open
court on day specified in notice, or on
that day may be entered on the motion
docket. Bent v. Maupin, 86 Ky. 271.
I 449. Pleadlnfg. Under the old Code
in a proceeding by motion on a claim-
ant's bond, written pleadings were not
allowed. Watson v. Gabby, 18 B. M.
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TITLE X] ARBITRATIONS AND AWARDS. 241
CHAPTER VI.
CIVIL PROCEEDINGS ON BEHALF OF THE COMMONWEALTH.
§ 450. Sections of Statutes adopted.
§ 450 [4S9 to MS] Sections off Statutes adopted. The provisions of chapter
ninety-two, article eleven, General Statutes [now chapter one hun-
dred and eight, article eight, of the Kentucky Statutes], are adopted
as part of this Code. {This article of Statutes provides how money
due the State by sheriff or other officers may be collected,)
CHAPTER Vn.
ARBITRATIONS AND AWARDS.
[SBB STATUTORY PROVISIONS, KY. STAT., SEC. 69.]
g 451. 1. Controversies that may be submitted and how.
2. Oath of arbitrators and umpire.
3. Witnesses — how attendance of coerced.
4. Fiduciaries may submit controversy.
5. Arbitrator refusing to act — proceedings.
6. Meetings — powers — award.
7. Award entered as judgment — when.
8. Power of court over award.
9. Arbitration of little controversies — practice — appeal.
§ 451 [«••] Controversies that may be submitted and how. 1. Any contro-
versy which is or might be the subject of an action may, at the
request of those interested therein, be submitted to the decision of
658. But under this Code such a motion ing as specified in submission, and where
may be heard and determined upon or such an attempt is made the second
without written pleadings. Couchman award will be disregarded and the origi-
V. Maupin, 78 Ky. 33. nal enforced. Martin v. White, 1 R. 347;
(2) If parties see proper to proceed by Eddy v. North up, 15 R. 434 ; 1 Met. 434,
pleadings the rules applicable to plead- (2) Appeal does not lie from an award
ings in action obtain. Sargent v. Farrar, under a statutory submission, although
2 R. 212. by entry of record it is made the judg-
(3) Practice. A party can not be de- ment of the court, unless some exception
prived of the right to a jury trial by pro- is taken affecting the validity of the
ceeding by motion if he is entitled to award. Payne v. Payne, 8 R. 591.
have question tried by a jury. See Con., (3) Common biw snbmlsalon — parties
sec. 7 ; Ky. Stat. , page 89, and notes may stipulate as they please as to notice
thereto. or other conditions. Martin v. White, 1
§ 451. (1) Amendment of award can not R. 347.
be made after award is reduced to writ- (4) Duty of arbitrators and parties. The
(16)
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ARBITRATIONS AND AWARDS.
[title X
one or more arbitrators, or to two and their umpire, by the order of
any court having jurisdiction of the subject. The paHies making
such submission shall, if there be no action pending, by written
agreement filed and noted on the record, or by an entry on the
record, state what question is submitted. The order of court shall
state the time in which the award is to be made and returned, but
the court may enlarge the time.
2. Oath of arbitrators aod lunpire. Arbitrators and the umpire, if
there be one, before they proceed to act shall take an oath to
decide the controversy to them submitted according to law and
evidence and the equity of the case, to the best of their judgment,
without favor or affection; and a certificate of such oath shall be
returned to the court with the award.
3. Witnesses — liow atteadaoce of coerced. Any one of the arbitrators
shall have power to issue subpoenas for witnesses to attend their
sittings and give evidence touching the questions referred to
them, to which all sheriffs and other like officers shall give obe-
dience. Witnesses failing to attend before arbitrators at the time
and place designated, or who shall refuse to give evidence when
they do attend, shall be reported to the court by the arbitrators,
and be proceeded against and punished as if the case had been
pending in court.
arbitrators aire to act upon the evidence
before them, and it is the duty of each
party to bring before them all of his
evidence. Adams v. Ringo, 79 Ky.
311.
(5) When reference is made to several
they should hear together the evidence,
and consult jointly about it and their
award, and all should sign the award in
the presence of each other. Henderson
V. Buckley, 14 B. M. 292.
(6) Where an action for the settlement
of a partnership is referred to arbitrators,
whatever claim either asserts against the
other as growing out of the partnership,
although not mentioned in the pleadings,
is a matter in controversy and embraced
in the submission. Adams v. Ringo, 79
Ky. 21 1 ; and see Newton v. West, 3
Met. 24.
(7) Bxceedio; authority. If the arbitra-
tors exceed their authority and act upon
matters not submitted, that part of their
award will be stricken out and the resi-
due upheld. 79 Ky. 211 ; and see Carson
V. Carson, 1 Met. 434 ; Eddy v. Northup,
15 R. 434.
(S) Form — mistakes. Mere mistake of
law made by arbitrators is not sufficient
to set aside an award. This mode of set-
tling controversies is to be encouraged,
and mere formal objections will be dis-
regarded when they do not affect the
substantial rights of the parties. Ad-
ams v. Ringo, 79 Ky. 211 ; Snyder v.
Rouse, 1 Met. 625 ; Rudd v. Jones, 4
Dana 229; Overly v. Overly, 1 Met. 117;
Whittaker v. Wallace, 1 R. 271 ; Cook v.
McRoberts, 5 R. 764.
(9) Praod— to set aside award far. In
an action to set aside an award upon the
ground of fraud, there must be aver-
ments of the specific fraud relied on.
Phillips V. Phillips, 81 Ky. 147.
(10) Jwlfneiit oa award. It is error to
render judgment upon an award not de-
livered to the parties ten days before the
commencement of the term at which
judgment is rendered. But this is a
clerical misprision, and motion must be
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ABBITRATIONS AND AWARDS.
243
4. Fidociaries iiay wtAaAi cootrorersy. The personal representative
of a decedent, the guardian, committee or curator of a person
under disability, or any trustee, may agree to such submission.
Upon such submission, made in good faith, the award shall be
binding, and be entered as the judgment of the court. No such
fiduciary shall be responsible for any loss resulting from an award
adverse to the .interest he represents, unless caused by his fault
or neglect.
5. Arbitnitor refnsiiif to id — proceedings. If any arbitrator fail or
refuse to act, the court may appoint another, or set aside the order
of reference.
6. Meetiiifs — powers — award. The arbitrators and umpire, if there
be one, shall meet at such convenient times and places as may be
necessary, of which the parties shall have reasonable notice, and
hear such evidence as either party may adduce. They shall have
power to administer oaths. They shall make their award in
writing, stating therein when it is made, and sign it; and shall
deliver a copy of it to each of the contending parties, and return
the original to the court with indorsements showing the time of
delivering a copy to each party.
made to correct it in the Circuit Court.
Carson v. Carson, 1 Met. 434.
(11) Majority of persoas to whom a
question is submitted may act. Hewitt
V. Craig, 86 Ky. 23.
(12) Notice— waiver of. Upon an arbi-
tration made under common law rules,
either party may waive notice of the
meeting of the arbitrators or decline to
be present. When the award is made
the arbitrators have no power over it,
and a promise by them to reopen the ar-
bitration and hear additional testimony
will not affect the award. Whitlock v.
Ledford, 82 Ky. 390.
(13) When the parties are present and
heard by the arbitrators it is no objec-
tion to the award that it does not state
that the parties had notice of the time
and place the arbitrators met and acted.
Newton v. West, 3 Met. 24.
(14) Ottft off arUtratort« The officer's
certificate accompanying the award
stated thai the arbitrators appeared
"and made oath according to law that
they would faith fal)y discharge the du-
ties devolved upon them as arbitrators
and umpire." Held sufficient. Snyder
V. Rouse, 1 Met. 625.
(15) In the absence of proof to the con-
trary it will be presumed that the arbi-
trators were sworn, and that they
complied with all the requirements of
the law. Carson v. Carson, 1 Met.
434.
(16) Parol sobnissioa. The rule of the
common law that any matter in con-
troversy might be submitted by parol
agreement to arbitration unless it di-
vested the parties of some right that
could only pass by a written agreement,
has not been changed by the Code or
Statutes. Thomasson v. Risk, 11 Bush
619 ; Royse v. McCall, 5 Bush 695.
(17) Statatory arMtratioD aod award. See
Ky. Stat., sec. 69.
(18) Sabnissiofl by order of court To
authorize the reference of a controversy
to arbitration by rule of court, when
there is no action pending, it is necessary
that there be an agreement in writing
filed and noted of record, or an entry on
the record stating the matter submitted.
A Judgment upon an award without these
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244 FORCIBLE ENTRY AND DETAINER. [TITLE X
7. Award entered as iadgmeni — when. The award shall be entered
as the judgment of the court at the first term, ten days before
which copies of the award are delivered to the parties, unless, on
exceptions filed, it be set aside by the court.
8. Power of court over award. No award shall be set aside for the
want of form. But courts shall have power over awards on equi-
table principles as heretofore.
9. Arbitration off little controversies — practice — appeal. Controversies
within the jurisdiction of a justice of the peace may be submitted
for arbitration in the same manner, and the proceedings shall be
the same as are above authorized and required. Either party
may appeal to the circuit court from the judgment of the justice
on the award, as in other cases. (Controversy may without suit be
submitted to court, sec. 6S7.)
CHAPTER VIII.
FORCIBLE ENTRY AND DETAINER.
§ 453. Forcible entry and detainer defined.
§ 453. Immaterial when tenancy created.
§ 454. Warrant — form of and who may issue — jury not necessary.
§ 455. Warrant, how executed.
§ 456. Return of warrant — panel of jurors — oath to jury.
§ 457. Duty and powers of justice at trial.
§ 458. Subpoenas for witnesses— attendance coerced.
prerequisites is unauthorized. Carson sion of questions will not invalidate the
V. Carson, 1 Met. 434. award. 79 Ky. 211 ; Whittaker v. Wal-
(19) Time la which award to be nade. lace, 1 R. 271.
When a time is fixed within which the (22) On a submission to two arbitrators,
award is to be returned, it must be made who in case of disagreement are to
within the time ; and the arbitrators choose an umpire, the umpire is only au-
should decide all questions submitted ; thorized to act when they disagree ; and
for a failure to comply with either of if they all act together the award will be
these requirements, the award will be set set aside. Royse v. McCall, 5 Bush 695.
aside. Burnam v. Burnam, 6 Bush 389. (23) Who may submit to arbltratloii. A
(30) Umpire— selectloa and duties. Um- county court may submit to arbitration
pire may be selected at any time after matters in controversy between it and
arbitrators are chosen. Whittaker v. an individual. Remington v. Harrison
Wallace, 1 R. 271 ; and see as to duties County, 12 Bush 148.
of umpire and part he should take in de- (24) A personal representative may
liberations, Couchman v. Maupin, 78 Ky. submit matters to arbitration with the
33; 1 R. 271. same effect and the same freedom from
(21) The umpire should only act when liability out of court, as with the con-
the arbitrators differ, but the fact that sent of court. Overly v. Overly, 1 Met.
he occasionally takes part in the discus- 117.
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FORCIBLB ENTRY AND DETAINER.
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§ 459. Verdict — ^proceedings If jury disagree.
§ 460. Judgment on inquest — form of.
§ 461. Proceedings if inquest not traversed — ^warrant of restitution.
§ 462. Justice to preserve papers — fee for transcript.
§ 463. Traverse — time to file — bond to be executed.
g 464. Damages recoverable on traverse bond.
§ 465. Proceeding on traverse in circuit court.
§ 466. Proceedings in circuit court after judgment.
§ 467. Waste may be restrained pending trial.
§ 468. Proceedings no bar to action for trespass, waste or rent.
§ 469. Limitation two years.
§ 452 [B««] First : Forcible entry and detainer defined. The words ^^ posses-
sion," " entry," " detainer," in this chapter, refer to lands and ten
Second : A forcible entry is —
1. An entry without the consent of the person having the actual
possession.
2. As to a landlord, an entry upon the possession of his tenant
at will or by suflferance, whether with or without the tenant's
consent.
I 451 (1) Acqaittal so bar to aaotber
writ An acquittal on a charge of forci-
ble detainer will not bar a writ for a
forcible detainer committed at a subse-
quent time. Shepherd v. Thompson, 2
Bush 176 ; nor is writ dismissed because
defective bar to another writ. Hamel
V. Lawrence, 1 Mar. 330.
(2) Deeds. Deeds may be introduced
to show the extent of possession, but not
the right of possession. Beauchamp v.
Morris, 4 Bibb 312 ; Carpenter v. Shep-
herd, 4 Bibb 501 ; Taylor v. White, 1
Mon. 37.
(3) Detaiaer dcfiaed— wko nay prosecnte
writ of. Before a writ of forcible detainer
can be maintained against a tenant, it is
necessary that he should have refused to
restore the possession after the expiration
of his term ; and a mere continuance in
possession, without such refusal, or the
commission of some act constructively
constituting a refusal, is not sufficient to
convict a tenant of a forcible detainer.
Shepherd v. Thompson, 2 Bush 176;
Thompson v. Marsh, 4 Bush 423.
(4) A tenant's conduct may amount to
a refusal, although no formal demand for
possession has been made, and this fact
should be left to the jury. Beynroth v.
Mandeville, 5 Bush 584 ; and disclaimer
of tenancy subjects tenant to warrant for
forcible detainer even before expiration
of tenancy.
(5) Parties in possession of land sold
under decree leased land from purchaser,
and failing to surrender possession when
lease expired, warrant of detainer was
proper remedy. Walker v. Bush, 6 R.
514.
(6) A party in possession, under an
agreement to occupy and take care of
land for a term of years, with the under-
standing that he might secure the title
by the purchase of it when he should
become able, was not a tenant in the
sense that he could be evicted by a writ
of forcible detainer. Reeder v. Bell, 7
Bush 255.
(7) Where W sold land to G and ex-
ecuted to him a title bond, and G after-
ward sold the land to B and assigned
to him the bond, with the agreement
that G should retain possession of the
land until the March following, B could
not maintain a writ of forcible detainer
against G. CJoldsberry v. Bishop, 2
Duv. 143.
(8) To maintain the writ of forcible
detainer, the relation of landlord and
tenant must exist ; and the reservation
of rent in some form, and allegiance to
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FORCIBLE ENTRY AND DETAINER.
[title X
Third : A forcible detainer
1. The refusal of a tenant to give possession to his landlord after
the expiration of his term ; or of a tenant at will or by sufterance
to give possession to the landlord after the determination of his will.
2. The refusal of a tenant of a person who has made a forcible
entry to give possession, on demand, to the person upon whose
possession the forcible entry was made.
3. The refusal of a person who has made a forcible entry upon
the possession of one who acquired it by a forcible entry to give
possession, on demand, to him upon whose possession the first
forcible entry was made.
4. The refusal of a person who has made a forcible entry upon
the possession of a tenant for a term to deliver possession to the
landlord, upon demand, after the term expires; and, if the term
expires whilst a writ of forcible entry sued out by the tenant is
pending, the landlord may, at his cost and for his benefit, prosecute
it in the name of the tenant.
the title, are the distinguishing charac-
teristics of a contract by which the rela-
tion of landlord and tenant exists. 2
Duv. 143. See 1 Duv. 151 ; 8 Bush 238 ;
and see further Ky. Stat., sees. 2298,
2295. 2296, 2320, 2327.
(9) Tenant can not dispute title of his
landlord nor avail himself of title de-
rived from another. Clinton v. Clinton,
2 Bibb 433.
(10) While B was occupying land as
the tenant for years of A, C acquired
the legal title to the land by the judg-
ment of the circuit court, and was
awarded a writ of possession. AVithout
a formal eviction by the writ. B sur-
rendered possession to C and took a lease
from him ; and, having refused to sur-
render possession when his time expired,
C could maintain a writ of forcible de-
tainer against him. McMurty v. Adams,
3 Bush 70.
(11) PorciUe eatry. A subtenant de-
livered the key of the house he had been
occupying to the tenant, who had a lease
of the property for five years, and aban-
doned the premises, but immediately
thereafter he borrowed the key from the
tenant and delivered it to the landlord,
who took possession of the premises.
The tenant could maintain a writ of
forcible entry against the landlord.
Haupt v. Pittaluga, 6 Bush 493.
(12) The statute relating to forcible
entry and detainer does not affect the
common law riglit of entry, when exer-
cised in a peaceable manner, except so far
as the statute itself furnishes a remedy to
regain possession. A person having the
right to enter, who makes an entry in
pursuance of that right, can only be re-
moved by a writ of forcible entry.
Tucker v. Phillips. 2 Met. 416.
(13) Residence upon part of a tract
claiming the whole, though part is not
inclosed, may give such possession of the
whole tract as will authorize the person
to maintain a writ of forcible entry for
an intrusion upon any part of it. Henry
v. Clarke, 4 Bibb 426 ; Smith v. Morrow,
Slitt. 210.
(14) A person may have possession in
fact of land without residing upon it, and
though it be not cultivated^ improved or
inclosed. Brum field v. Reynolds, 4 Bibb
388 ; Wan v. Nelson, 3 Litt. 395 ; Chiles
v. Stephens, 3 Mar. 344 ; Young v. Ringo»
1 Litt. 226.
(15) An entry upon uninclosed land,
with the intent to clear and fit it for cul-
tivation without actually inclosing it, is
a forcible entry. Humphrey v. Jones. 3
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FORCIBLE ENTRY AND DETAINER.
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§ 453 [B«i] ImflMterial when teiancy created. It is not material whether
the tenant ahall have received possession from his landlord, or have
become his tenant after obtaining possession.
§ 454 [«•<] Warraot — ffom off aod who may issue — jury not oecessary. Upon
complaint by a person aggrieved by a forcible entry or detainer to a
justice of the peace or county judge of the county in which the land
or tenement, or a principal part thereof, lies, he shall issue his war-
rant to the sheriflT, or any constable, in substance as follows : " The
Commonwealth of Kentucky to the Sheriff [or any constahle] of
county : "WTiereas, A B hath made complaint to me, J 8, a justice
of the peace [or county judge] for said county, that C D and E F
did, on the day of , forcibly enter into [or forcibly detain
from the said A B] one house and field on the waters of , in
the county aforesaid [or other general description of the lands or
tenements], which were in the peaceable possession of A B [or
which the said C D and E F, tenants of the said A B, now hold
against him] : You are, therefore, commanded to summon a good
and lawful jury of your county to meet on the premises, or at a place
convenient thereto, on the day of , to inquire into the
Mon. 261. Entry within the lines and
fencing of another without his consent
constitutes a forcible entry. Henry v.
Clarke, 4 Bibb 426.
(16) Entry with intent to cut timber,
or occasional chopping or cutting and
removing timber, is not such an entry as
will authorize a writ of forcible entry.
It is only a trespass. Grughler v. Wheel-
er, 12 B. M. 183 ; Humphrey v. Jones, 3
Mon. 261.
(17) Tenant in possession is proper
person to maintain writ of forcible entry
and not the landlord. Pogue v. McKee,
3 Mar. 128 ; Steele v. Logan, 3 Mar. 394.
(18) l88M iavohred is whether party
complaining was or was not in the actual
possession of the premises forcibly en-
tered, no question of title or right of
possession can arise, nor does it make
any difference whether the defendant
had or had not the right to enter. Dils
V. Justice, 10 R. 547.
(19) The only legitimate inquiry on
the trial of a writ for forcible entry and
detainer is whether the defendant en-
tered upon land which at the time of
the entry was in the actual possession of
the plaintiff. The defendant can not
Justify an entry in such case by showing
title or right of entry. Hunt v. Wilson,
14 B. M. 44.
(20) Where one trespasser succeeds
another in the possession of land the per-
son in possession when first trespasser
entered may maintain writ of forcible
entry against each trespasser. Alexan-
der V. Fowler, 6 R. 444.
(21) To maintain writ of forcible entry
plaintiff must have been at time of entry
in the actual possession of the premises.
Neither right of possession nor con-
structive possession is sufficient. Dils v.
Justice, 10 R. 547.
§454. (1) Police Jndfe having concur-
rent jurisdiction with justices of the
peace can issue the writ. Cessna v.
Stedman, 1 Duv. 188. See sec. 732-13 ;
as to jurisdiction of police judges, see
Ky. Stat.
(2) Requisites of warrant. It is neces-
sary that the warrant for forcible de-
tainer should charge that the complain-
ant was in the peaceable possession of
the premises, and the relation of landlord
and tenant should be alleged, or in some
form appear on the face of the warrant.
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248 FORCIBLE ENTRY AND DETAINER. [TITLE X
forcible entry [or forcible detainer] aforesaid ; and give to the said
C D and E F at least three days' notice of the time and place of
the meeting of the jury, and have then there this writ. Witness,
etc."
[In the trial of writs of forcible entry, forcible detainer, or forc-
ible entry and detainer, if neither party, in person or by agent or
attorney, demand a jury, the trial thereof shall be by the judge or
justice presiding; and in such event the judge or justice shall try
all questions arising, whether of law or of fact. No such writ
shall hereafter direct the summoning of a jury, and the sheriff or
other officer to whose hands such writ may come to do execution
thereof shall not summon a jury in such proceeding, unless he be
by either party notified in writing that a jury is demanded. At
the calling of the cause for trial either party may demand a jury.
The right to traverse the finding of the judge or justice shall be
the same as if a verdict had been rendered by a jury.] ( Words in
brackets added by act of 1888)
§ 455 i5«8j Warniot, how executed. The officer shall give to each
defendant notice, according to the directions of the warrant, and no
inquiry shall be made against any defendant who has not been
notified as aforesaid. If, however, the notice have been given to a
defendant, but not three days before the day of the meeting of the
jury, the inquest shall, on his motion, be adjourned until the expira-
tion of the three days. (Service of notice if defendant can not be found,
see Ky. Stat., sec. ^29^.)
§ 456 [504] Return of warraot — ^|iiry — oath to |nry. At the time for holding
the inquisition, the officer shall return the warrant to any justice who
may attend, or to the county judge, if in attendance, with an indorse-
ment stating when and upon whom it was executed and the place
designated by the officer for holding the inquisition, together with a
panel of the jury; whereupon, the justice or judge, whether the
defendant is present or not, shall administer an oath to the jurors in
substance as follows: "You, and each of you, shall well and truly
inquire into and return whether or not the defendant [or defendants]
Powers V. Sutherland, 1 Duv. 151 ; Tay- fendant guilty of one and not the other,
lor V. Monohan, 8 Bush 238 ; 2 Duv. Cammack v. Macey, 3 Mar. 297 ; Rowe v.
143. Powell, 4 J. J. M. 153.
(3) Warrant may charge a forcible en- (4) Form of warrant given in statute
try or detainer in the alternative. Car- is chiefly directory, and a substantial
penterv. Shepherd, 4 Bibb 501 ; McBrayer compliance with it is sufficient. Smith
V. Wash, 6 J. J. M. 465 ; they are distinct v. White, 5 Dana 381, and a general de-
cffenses, but the jury may find the de- scription of the premises is sufficient.
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TITLE X] FORCIBLE ENTRY AND DETAINER. 249
is [or are] guilty of the forcible entry [or detainer] complained of in
the warrant in this cause : so help you, God." {Jury not summoned
unless demanded^ see sec, 4^4")
§ 457 [»•«] Doty and powers of Justice at trial. Such justice or judge shall
superintend the taking of the inquisition, swear witnesses, decide
legal questions which may arise, preserve the peace, enforce the rules
of decorum, and punish, according to law, contempts of his authority.
§ 458 [»••] Sobpoeiuis for witaesses — ^attefldance coerced. The judge or any
justice of the peace may issue subpoenas for witnesses at the request
of either party, and their attendance and testifying may be coerced
by the justice or judge who presides at the inquest. (Form ofsubpoenaj
page 643.)
§ 45^ [5«T] Verdict — proceedlogs If Jury disagree. The jurors, after hearing
the evidence, shall, by their inquest, say whether the defendants, or
either of them, be guilty or not guilty of the forcible entry or detainer
complained of; and shall return their inquest, signed by one of their
body, to the justice of the peace or judge who presides. If jthe
jury do not agree, it may be discharged, and another be ordered to
be summoned to meet, either immediately, or at some future day to
be then and there fixed and indorsed on the warrant; and this proceed-
ing shall be continued until a jury agree.
§ 460 [508J Jodgmeot oo loqnest — form of. Upon the return of the inquest
the judge or justice shall enter a judgment according to the inquisi-
tion, either for the plaintiff, in substance, that he have restitu-
tion of the premises aforesaid, and recover of the defendants his
costs in this behalf expended ; or for the defendants, in substance,
that they recover of the plaintiff their costs in this behalf expended ;
or for the plaintiff against some of the defendants, and for the other
defendants against the plaintiff, if some be found guilty and others
not guilty.
§ 461 [5ot] Proceedio|:8 If no traverse — warrant of restitution. If the party
against whom the inquisition is found fail to file a traverse of the
inquisition with the judge or justice who presided, on or before the
third day after the finding of the inquest, the judge or justice shall, on
request, issue his execution for the costs ; and, if the inquisition be in
favor of the plaintiff, he shall also issue his warrant of restitution in
substance as follows : " County. To the Sheriff [or any con-
§ 459. (1) Verdict— form of. A verdict in in a writ for forcible entry is not good,
the country finding the defendant ** not nor is a verdict for forcible entry under a
guilty ** is sufficiently explicit. Belcher warrant for forcible detainer. Gayle v.
V. Barrett. 4 Met. 306. Overton, 1 J. J. M. 549 ; Sinclair v. San-
(2) Verdict finding a forcible detainer ders, 3 J. J. M. 303.
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250 FORCIBLE ENTRY AND DETAINER. [TTTLB X
stable] of county : Whereas, C D and E F have, by an inqui-
sition taken before me, J P, a justice of the peace for said county,
been found guilty of a forcible entry in [or detainer of] one house
and field, lying on the waters of , in the county aforesaid [or
other general description of the possessions], to the injury of A B :
You are, therefore, in the name of the Commonwealth of Kentucky,
commanded that, with the power of the county if necessary, you put
the said A B in the possession of said premises ; and make return
within days to me, how you have executed this warrant*
Given under my hand this day . , J. P."
§ 442 [«!•] Jostlce to preserve all papers — lee fer traoscript The judge or
justice of the peace shall carefully preserve all papers, records and
proceedings, relating to the cause, unless ho transmit them to the
clerk as hereinafter directed ; and shall deliver, to any person requir-
ing it, a transcript thereof, such person paying him therefor two
cents for every twenty words in such transcript.
§ 463 [»u] Traverse — time te file — bond to be executed. K either party
conceive himself aggrieved by the finding of the jury, he may file a
traverse thereof with the judge or justice, within three days next
after the finding aforesaid, in substance as follows: "X -B against C
D, on a writ of forcible entry [^or detainer']. The plaintiff [or the
defendant] says that the inquisition returned in this cause is not true;
wherefore, he prays that proceedings thereon may be stayed until the
same can be tried according to law. A B;" and shall also, within
the same time, before said judge or justice, give bond with sufficient
surety, to be approved by the judge or justice, to his adversary, in
substance as follows: "J. B t\ C D^on a writ of forcible entry [^or
detainer]. Whereas, upon a writ of forcible entry [or detainer] in
favor of A B against C D, tried before , a justice of the peace
of county, a verdict was rendered for the said A B, on the
day of , which the said C D has traversed; the said C D and
E F, his surety, covenant to pay to the said A B the costs of said
§ 463. (1) Traverse. If the traverse (3) The traverse must be filed with the
bond is defective, the court should allow justice within three days, and the traverse
the traverser a reasonable time in which bond executed within the same time, but
to execute a new and sufficient bond, as If the traverse is filed in time, without
provided in sec. 682. Alderson v. Trent, a sufficient bond, the bond may be exe-
79 Ky. 259. euted in the circuit court. Burchett v.
(2) Justice can not be compelled by Blackburn, 4 Bush 553.
mandamus to accept a traverse bond that (4) The traverser need not sign the
he has declined to approve because in his traverse. Jones v. Skiles, 1 Mar. 54 : and
judgment insufficient. McDonald v. a traverse bond executed by a surety alone
Jenkins, 93 Ky. 249. is sufficient. Smith v. Turley, 3 Bibb 188.
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TITLB X]
FORCIBLB BNTRY AND DBTAINER.
251
proceeding and all damages caused to him by said traverse, if not
prosecuted with effect." whereupon, the judge or justice shall stay
all further proceedings on the inquisition, and return the whole of
the papers and proceedings, or a fair transcript thereof, to the office
of the circuit court of said county, within ten days thereafter.
§ 4M [BIS] Daouices recoverable on traverse bond. Upon this bond, if the
traverser fail to prosecute his traverse with effect, he and his surety
shall be liable for the damages for withholding the possession which
the traversee may be entitled to recover against the traverser, during
the pendency of the traverse, either in the circuit court or Court of
Appeals, as well aa the reasonable expenses of the traversee in
defending the traverse.
§ 465 [018} Proceedings on traverse in circuit court The clerk shall docket
the traverse as other actions; it shall stand for trial as docketed; the
traversee shall join issue on the traverse; and it shall be tried by a
jury, and judgment given on the verdict, as in other cases: Provided^
however, that nothing herein contained shall be construed to prevent
the court from giving judgment against either party for default, nor
from deciding any question of law as in other cases.
§ 466 [514] Proceedings in circuit court after judgment After a cause is
returned to the circuit court, execution for cost, or for restitution,^
shall issue from the office of that court, according to the judgment in
the cause.
(5) i^etani of papen to circuit court The
provision as to the return of the papers
to the circuit court within ten days is
merely directory, and the failure to com-
ply with it no cause for dismissal. Way-
man V. Taylor, 1 Dana 527.
I US. (1) Parties on tnverae. On the
traverse no new parties can be made by
amendment, the same identical case
tried in the country must be tried in the
circuit court. Powers v. Sutherland, 1
Duv. 151.
(2) Trtal of traverse. **This class of
proceedings should always be reviewed
with great liberality. Errors which are
merely formal or technical should be
disregarded." Powers v. Sutherland, 1
Duv. 151 ; Taylor v. Monohan, 8 Bush 238.
(3) On the trial of the traverse, the
circuit court may quash a defective war-
rant. 1 Duv. 151 ; 8 Bush 238.
(4) If the traverser fail to appear on
the calling of the traverse the court may
render judgment against him by default.
Dibble v. Porter, 1 Duv. 190.
(5) The failure of the justice to render
judgment on the verdict of the jury i»
no ground for dismissing the traverse
in the circuit court. Such judgment is
not necessary to enable a party to maintain
a traverse. Belcher v. Barrett, 4 Met. 308.
(6) Upon the trial of the traverse, the
burthen of proof is on the party who ob-
tained the warrant (Beauchamp v. Mor-
ris, 4 Bibb 312); and he shall have resti-
tution according to the proof, though it
be for less than he demands, and lesa
than the jury in the country gave him.
Atchley v. Latham, 3 Mar. 164.
(7) A traverse is a virtual waiver of
objections to irregularities in the pro-
ceedings before the justice not affecting
the merits of the case. Swartzwelder v.
Bank, 1 J. J. M. 39 ; Wheatley v. Price,
3 J. J. M. 167; Jones v. Skiles, 1 Mar.
39 ; 2 Bibb 434; 1 Dana 468.
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252 PROBATE OP WILLS. [tITLB X
§ 447 [815] Waste may be restrained pendini: trial. The court before whom
such cause may be depending, or any judge thereof in vacation, may
restrain waste or destruction of the premises, and may enforce its
order by fine and imprisonment or either.
§ 468 [5i«] Proceedings no bar to action for rent, tresfiass, waste. The proceed-
ings under a writ of forcible entry or detainer shall not bar an action
for trespass or waste or rent or mesne profits.
§ 469 [BIT] Limitation two years. No inquisition of forcible entry or
forcible detainer shall be taken at any time after two years from the
forcible entry or detainer complained of.
CHAPTER IX.
PROBATE OF WILLS.
§ 470. Kentucky Statutes— concerning adopted.
§ 470 [Sit] Kentttcicy Statutes — concernini: adopted. The provisions of sections
twenty-six to forty-two inclusive of chapter one hundred and thirteen.
General Statutes [now sections four thousand eight hundred and
forty-nine to four thousand eight hundred and sixty-six, both inclu-
sive, of chapter one hundred and thirty-five of the Kentucky Statutes],
regulating the probate of wills, are adopted as a part of this Code.
( Venue of action to establish^ or sei aside^ sec, 6^)
CHAPTER X.
SETTLEMENT OP THE ACCOUNTS OF FIDUCIARIES BY THE COUNTY
COURT.
§ 471. Kentucky Statutes — concerning adopted.
§ 472. Settlements of fiduciaries— recording of.
§ 471 fftto] Keotncky Statutes — coocemioi: adopted. The provisions of article
/^ dt/viuu> chapter twenty-eight, General Statutes [now sections one
(8) A judgment of restitution may be in equity may be brought by a guardian
given against those who were engaged against a former guardian to require him
in making the unlawful entry, although to settle his accounts, although the
they did not detain the premises after- county court has referred the matter of
ward, as well as against those who con- a settlement of his accounts to a com-
tinned in the occupation of them. Young missioner. Com. v. Henshaw, 2 Bush
V. Ringo, 1 Litt. 225. 286. And see McAfee v. Balden, 6
§ 470. Settlement with goardiaa. A suit Bush 537.
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TITLE X] CAVEATS. 253
thousand and sixty-two to one thousand and sixty-seven inclusive, of
the Kentucky Statutes, regulating the settlement of the accounts of
personal representatives and guardians, are adopted as part of this
Code.]
§ 472 iBst] Settlements off ffidnciaries — recordioi: of. The accounts of com-
mittees and trustees may be settled in the same manner, and the
settlements shall have the same effect, as prescribed by section four
hundred and seventy-one. The county court of the county in which
the committee is appointed, or in which the deed or will creating the
trusts is recorded, shall have the jurisdiction of making the settle-
ments.
[That hereafter, when the court may so direct, settlements of
the accounts of personal representatives, trustees, guardians or
other fiduciary, made before a commissioner of any chancery, com-
mon pleas, or circuit court of this State, and reported by such com-
missioner, and all reports of estates or funds received or disbursed,
under order of the court, by its receiver, after the same shall have
been confirmed by the court, shall be recorded by the clerk of
such court in a book to be pro\dded for that purpose.
The vouchers accompanying such settlements or reports shall
not be recorded.
The clerk of such court shall be entitled to the same fees allowed
by law to clerks of the county courts for similar services.
The commissioner or receiver of the court making such settle-
ment or report shall allow, and state on the face thereof, the
amount of fees that will be due to the clerk for recording.] ( Words
in brackets^ act 1884)
CHAPTER XI.
CAVEATS.
§ 473. 1. Who may enter — statement and verification of.
2. Copy to be filed with circuit clerk.
3. Caveat treated as petition — proceedings upon.
4. Summons on — practice.
§ 472. JarisdicHoa. Where an express where the evidence of the trust or the
trust is created by will or deed and the writing is recorded. Cunningham v,
trustee desires simply to settle his ac- Fraize, 85 Ky. 35.
counts, he must go to the county court
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254 CAVEATS. [title X
5. Judgment— provisions as to.
6. Grant not to issue until caveat disposed of.
7. Plaintiff — when not entitled to caveat.
8. Costs — court may require security for.
§ 47J [Btsi Who may eater — statemeot and verificttioii of. 1. If any person
obtain a survey of land to which another claims a better right, such
other may enter a caveat with the register to prevent the issuing of a
grant until the right be determined. The caveat shall state the plaint-
iff's claim and the reasons why the grant should not issue. It shall
be verified by his affidavit, or by that of his agent, and declare that
it is entered in good faith, with the intention of procuring the land
for the plaintiff, and not for the benefit of the person against whom
it is entered.
2. Copy to be filed with circuit clerk. A copy of the caveat, certified
by the register, shall, within sixty days from the time it is entered,
be lodged with the clerk of the circuit court of the county where
the land or the greater part thereof lies. Failure so to lodge such
copy shall be deemed an abandonment of the caveat ; and it may
be disregarded by the register, upon the clerk's certificate of such
failure being filed in his office.
3. Caveat treated as petition — proceeding upoa. If such copy be lodged
within said period, it shall be treated as a petition, and the pro-
ceedings upon it shall be the same, including an appeal to the Court
of Appeals, as those in an ordinary action.
4. Smnmoos oo-— practice. If the summons be not returned in due
time, or be returned not executed, the caveat shall be dismissed, if
it be shown that the non-execution or non-return was procured by
the plaintiff' or resulted from his neglect.
5. Judfmeot — provisions as to. A copy of the judgment, if in favor
of the defendant, must be delivered into the land office within
three months from the time it is rendered ; or a new caveat may,
for that cause, be entered against the grant. If the judgment be
for the plaintiff, and a copy thereof be not delivered into the land
office within six months from the time it was rendered, any other
person may, for that cause, enter another caveat against the grant.
6. Qraat oot to issue uotil caveat disposed of. IS'o grant shall issue to
the land in contest, to the plaintiff in the caveat, or to another for
his use, until the caveat be dismissed or decided; and any such grant,
' to the extent of such land, shall be void.
§ 473. Coflstnictloa of this sertiM. Preston v. Preston, 85 Ky. 16 ; Alexander v.
Noland, 88 Ky. 142.
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TITLE X]
WRITS OF MANDAMUS AND PROHIBITION.
255
7. Plaintiff — ^wliefl lot eotitM te caveat If the plaintifi* do not pros-
ecate his caveat as herein required, or if the same be dismissed or
decided against him, neither he nor any other for his use shall have
another caveat against the same grant.
8. Costs— conrt may rc^piire secarity far. The court may, in its discre-
tion, require the plaintifi' to give security for costs ; and upon his
failure to do so may dismiss the proceeding.
CHAPTER XII.
WRITS OF MANDAMUS AND PROHIBITION.
§ 474. How obtained and prosecuted.
§ 475. Court to hear and decide — final order.
§ 476. Temporary preventive orders may be made.
g 477. Mandamus defined.
§ 47S. Commonwealth may appeal without security.
g 479. Prohibition defined.
§ 474 [5SS] Writs of — how obtained and prosecuted. Writs of mandamus,
except those used by a court for enforcing its judgments or orders,
and writs of prohibition shall be obtained by motion, and prosecuted in
mandamus, but if it refuses to entertain
a question which the law has enjoined
upon its consideration, mandamus will
lie. A mandamus may be issued against
a county court to require it to consider
the propriety of building a bridge on a
county road, under sec. 29, art. 1, chap.
04, Gen. Stat. ; but when it has consid-
ered it, and refused to build, it can not
be compelled to do so. Com. v. Boone
Co., 82 Ky. 632; see Nelson Co. ▼. Wash-
ington Co., 14 6. M. 92; Dickens v. Cave
Hill, 93 Ky. 385.
(5) Mandamus will not lie to control
the exercise of a judicial discretion.
City V. Kean, 18 B. M. 9; Goheen v.
Myers, 18 B. M. 423 ; Gayle v. Owen
Co., 83 Ky. 61; City v. Berry, 80
Ky. 354 ; Ohio Co. v. Newton, 79 Ky.
267 ; Wright v. Baker, 94 Ky. 343.
(6) Mandamus lies to compel an in-
ferior judicial tribunal to act, but not to
control its judgment. Cassldy v. Young,
92 Ky. 227 ; to set a court in motion but
not to control its decision. Shine v. Ky.
Central R. R., 85 Ky. 177.
(7) County court will not be compelled
I 474. (1) l>efloitiofl of mudoiw. The
writ of mandamus is not now, as former-
ly, a high prerogative writ, emanating
from the grace or favor of any one, but
it is a statutory writ or order of a court
of competent jurisdiction, and in a prop-
er case is to be granted on the motion of
any party aggrieved. Maddox v. Graham,
2 Met. 56.
(2) We have no other than peremptory
writs of mandamus ; it can not be in the
alternative. 10 Bush 564.
(3) Defense against In a proceeding by
mandamus, a counter-claim to recover
back money paid on the contract is not
proper ; but if the defendant state suffi-
cient reasons for not paying the claim,
the writ will not be awarded. 18 B. M.
848.
(4) Discretion not controlied. The per-
formance of a plain, positive duty may
be compelled by mandamus, but where
there is a discretion as to the result that
may be arrived at, it can not be con-
trolled. If an inferior tribunal has a
discretion, and proceeds to exercise it.
Its discretion can not be controlled by
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250
WRITS OF MANDAMUS AND PROHIBITION.
[title X
the manner provided in title ten, chapter five, except that the appli-
cant shall file a petition, wherein he shall state the cause and ground
of his application before giving notice of his motion; to which the
party against whom the mandamus or prohibition is sought shall file
a demurrer or an answer, at or before the time fixed for making the
motion.
§ 4751524] Court to hear aod decide — ^fiaal order. The court shall hear and
decide all questions of law or fact arising on the motion, and the grant-
ing or refusing of the writ shall be the final order on the motion.
{The amendment of May 15, 1886, was repealed by act of January 13,
1888.)
b}' mandamus to probate a will ; where
the court has heard evidence and deter-
mined that it had no jurisdiction, the
remedy is by appeal. Preston v. Fidel-
ity Trust Co., 94 Ky. 295.
(8) Justice of the peace will not be
compelled by mandamus to approve a
traverse bond which he regards as insuf-
ficient. McDonald v. Jenkins, 93 Ky. 249.
(9; Injaaction can act stay. A court of
equity can not enjoin an officer from do-
ing an act which a court of law has by
writ of mandamus required him to do.
10 Bush 564.
(10) Iflterpleader. When a party has
applied for a mandamus against a minis-
terial officer (the auditor) to compel him
to issue his warrant, a third party will
not be allowed to come in and litigate his
claim with the plaintiff upon the ground
that he has a lien upon the debt di\p
him. Hewitt v. Craig, 86 Ky. 23.
(11) Legal duty to perform act mast ap.
pear. It must appear upon every ap-
plication for a mandamus that it is the
legal duty of the respondent to do that
which it is sought to compel him to do,
and that upon proper application he re-
fused to perform that duty. Lowe v.
Phelps, 14 Bush 642 ; Norman v. Board
of Mgrs., 93 Ky. 537.
(12) Mandamnf — when f niflted. Manda-
mus is the proper remedy to prevent the
clerk and judge of the county court
from recording the vote under a ** local
option" law, if the law is unconstitu-
tional. Gayle v. Owen Co., 83 Ky. 61.
(13) And to compel the clerk of the
county court to record a deed or other
instrument which it is made his duty to
record. Wulftange v. McCollom, 83 Ky.
361.
(14) And to require the county court
to show cause why it did not permit a
deputy sheriff to qualify. Applegate v.
Applegate, 4 Met. 236 ; see Prater v.
Strother, 11 R. 831.
(15) And to compel the county judge
to accept the bond of a sheriff and per-
mit him to qualify. Cate v. Ross, 2
Duv. 243; and to compel the State Board
of Pharmacy to enter a '* graduate in
pharmacy." State Board v. White, 84
Ky. 626.
(16) And to compel county court to
levy a tax to pay a medical account for
services rendered to a poor person by re-
quest of the county judge and justices.
Rodman v. Larue Co., 3 Bush 144.
(17) And to compel countj' court to
levy a tax to pay for a bridge built, un-
der a contract with the county. Ander-
son Co. V. Stone, 18 B. M. 848.
(18) And to compel examining board
to compare poll-books to perform their
duty. Clark v. McKenzie, 7 Bush 523;
Batman v. Megowan, 1 Met. 533; Howes
V. Walker, 92 Ky. 258 ; but mandamus
will not lie to compel the canvassing
board to recanvass the ballots on account
of error in the first canvass, as the party
aggrieved by the former canvass has a
remedy by contesting the election. Hous-
ton V. Steele, 16 R.—
(19) And to require trustees of a town
to repair the streets. Hammar v. City, 3
Met. 494 ; Trustees v. Kinner, 12 Bush
334.
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TITLE X]
WRITS OF MANDAMUS AND PROHIBITION.
257
§ 476 [•<•] Temporary preveative orders may be made. During the pendency
of the motion, the court or judge, in vacation, may make temporary
orders for preventing damage or injury to the applicant until the
motion is decided.
§ 477 [«S6] Maodamus defined. The writ of mandamus, as treated of in
this chapter, is an order of a court of competent and original juris-
diction, commanding an executive or ministerial officer to perform
an act, or omit to do an act, the performance or omission of which is
enjoined by law; and is granted on the motion of the party ]|ggrieved,
or of the Commonwealth when the public interest is affected.
(30) And against auditor, to compel
him to pay claims. Auditor v. Adams,
13 B. M. 151; Haly v. Auditor, 4 Bush
490; 14 Bush 284; 3 Bush 231; 80 Ky.
336: 78 Ky. 577; 8 Bush 98.
(21 ) Corporation may be compelled by
mandamus to elect officers. Orr v.
Bracken Co., 81 Ky. 593.
(23) Where county is divided and a
new county established, the old county
may by mandamus compel the new to
levy a tax to pay indebtedness created
before division. Montgomery Co. v.
Menefee Co., 93 Ky. 33.
(23) When a city council is authorized
and required to levy and collect a tax to
pay the interest on bonds, a writ of
mandamus may be maintained by any
of the bondholders to compel it to dis-
charge that duty. Maddox v. Graham,
2 Met. 56.
(24) A county bondholder may compel
by mandamus the county court to levy
and collect a tax to pay bonds issued by
the county. Elliott Co. v. Kitchen, 14
Bush 289. And a corporation may have
the writ to compel the county to issue
bonds incompliance with a subscription.
C. & O. R.'R. Co. V. Washington Co., 10
Bush 564.
(25) Maadamns— when not franted. A
person who is not eligible to hold office
can not have a mandamus to compel the
county judge to permit him to qualify,
although he received a majority of the
votes cast at the election. Atchinson v.
Lucas, 83 Ky. 451 ; and see notes 4-8.
(26) Nor will it He against officers of a
private corporation, Cook v. College, 9
Bush 541; nor to compel the officers of a
(17)
benefit societ}- to restore an expelled
member. Schmidt v. Lodge, 84 Ky. 490.
(27) Nor will mandamus lie where
party has any other adequate remedy,
such as right of appeal. Shine v. Ky.
Central R. R., 85 Ky. 177.
(28) An ex parte allowance made by
the circuit court to guards summoned
by its order to guard the jail is only
prima facie evidence of its correctness,,
and, when controverted by the county
court, mandamus will not lie to compel
the county court to fevy a tax to pay
the allowance. Justice's v. Moore, 2
Bush 108.
(29) Nor is it the proper remedy when
the amount of the demand is not ascer-
tained. Garrard Co. v. McKee, 11 Bush
234.
(30) Motion for. Failure to make the
motion for a mandamus on the day
specified is a waiver of the right to en-
tJ^r or make it under that notice. 14
Bush 289.
(31) Parties to action. Mandamus against
county court to compel it to levy a tax
must be against persons composing the
court. Montgomery Co. v. Menefee Co.,
93 Ky. 33.
(32) Power of Court of Appeals to issue
writ is mentioned in Preston v. Fidelity
Trust Co., 94 Ky. 295, but not decided;
and see Rohmeiser v. Bannon, 15 R. 114.
In Kelley v. Toney, 95 Ky. 338, and
Louisville School of Reform v. City, 88
Ky. 584, it is held that mandamus from
Court of Appeals is proper remedy to
compel lower court to grant an appeal
which has been refused without right;
and see Vance v. Field, 89 Ky. 178.
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258
REPBALING OR VACATING CHARTERS.
[title X
§ 478 [097] Commoiiwealth may appeal without security. If an interest, right
or claim of the Commonwealth be affected by the final order on an
application for a writ of mandamus, the Attorney-General may prose-
cute an appeal without security.
§ 47f [M»] Prolilbitioii defined. The writ of prohibition is an order of
the circuit court to an inferior court of limited jurisdiction, prohibit-
ing it from proceeding in a matter out of its jurisdiction. {See further ^
Criminal Code^ sec. £6.)
CHAPTER XIII.
REPEALING OR VACATING CHARTERS, AND PREVENTING THE USUR-
PATION OF AN OFFICE OR FRANCHISE.
§ 480. Ordinary action to be brought.
§ 481. Action to repeal charter — prosecution of.
§ 482. Legislative direction necessary to repeal charters.
§ 483. U8uri)er of office or franchise — action against.
§ 484. Commonwealth attorney to institute action, when.
(33) Snccessor off officer. A change in
the membership of the board of coun-
cilmen does not abate the proceedings.
Maddox v. Graham, 2 Met. 56; City v.
Kean, 18 B. M. 9. As to auditor, see 3
Bush 231; as to board of examiners to
compare poll-books, see 7 Bush 523.
(34) Supersedeas The execution of a
writ of mandamus may be superseded.
83 Ky. 451.
§479. (1) Prohibltlofl. Court of Ap-
peals will not grant a writ of prohibition.
Sasseen v. Hammond, 18 B. M. 672 ; but
see now Constitution, sec. 110, and Pres-
ton V. Fidelity Trust Co., 94 Ky. 295.
(2) When a matter is within the juris-
diction of the court, a writ of prohibi-
tion will not be awarded to prevent it
from deciding erroneously, or from en-
forcing an erroneous judgment or order.
Bank Lick Co. v. Phelps, 81 Ky. 613.
(3) When by the provisions of a city
charter the validity of an ordinance could
be determined by a writ of prohibition ;
in a controversy growing out of the en-
forcement of an ordinance, the ordinance
being valid, the writ was not the proper
remedy. Shinkle v. City, 83 Ky. 420.
(4) Where the county court is acting
under a statute that is unconstitutional,
and its only authority is under the stat-
ute, the writ of prohibition is the proper
remedy to stay proceedings under it.
Pennington v. Woolfolk, 79 Ky. 13.
(5) A writ of prohibition can only be
directed to a judicial tribunal, and not
to a legislative body, such as a city coun-
cil. Patton V. Stephens, 14 Bush 324.
(6) After dismissing an appeal for
want of jurisdiction, the circuit court
properly refused a writ of prohibition
against the enforcement of the judgment
by the justice who rendered it. Olmstead
V. Mason, 3 Bush 693.
(7) A temporary order prohibiting a
court of inferior jurisdiction from pro-
ceeding in a certain case pending the
hearing of a writ of prohibition does not
continue in force after writ is refused,
although the judgment refusing writ is
superseded. Gibbs v. Board of Alder-
men, 95 Ky. 471.
(8) A writ of prohibition will not be
granted where the inferior court sought
to be restrained has jurisdiction. Gold-
smith V. Owen, 95 Ky. 420.
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MTLB X] KEPBALINa OR VACATING CHARTERS. 259
g 485. Attorney-Genernl — when to institute.
§ 486. Person holding office, when a usurper.
§ 487. Usurper — ^judgment to be rendered against.
§ 488. Fees received by usurper — how recovered.
§ 480 [itt] Ordinary actioo to be brooflit In lieu of the writs of scire
facias and quo warranto^ or of an information in the nature of a quo
warranto^ ordinary actions may be brought to vacate or repeal
charters, and to prevent the usurpation of an office or franchise.
( Verification of pleadings not requiredy sec, 116.)
§ 481 [is«] Actioo to repeal cliarter — prosecntioo of. The action^ to repeal
or vacate a charter shall be in the name of the Commonwealth, and
be brought and prosecuted by the Attorney-General, or under his
sanction and direction by an attorney for the Commonwealth.
§ 482 [5sij Legislative directioo necessary to repeal ciiarters. Actions to
repeal or vacate the charters of municipal corporations ; banks, rail-
road, turnpike road and internal improvement companies, shall only
be instituted by order of the Legislature, unless otherwise expressly
provided. {See now Ky. Slat,, sec. 569,)
§ 483 [Bss] Usurper of office or fraocliise — actioo against If a person usurp
an office or franchise, the person entitled thereto, or the Common-
wealth, may prevent the usurpation by an ordinary action.
§ 484 [5SS] CommoQweaitli attorney — ^wheo to iostitute actioo. It shall be
the duty of the several Commonwealth attorneys to institute the
actions mentioned in this chapter against usurpers of county offices
or franchises, if no other person be entitled thereto, or if the person
entitled fail to institute the same during three months after the
usurpation.
I 4M. (1) Lottery— action to snppress. out the mode by which a person who
An action to prevent the exercising of usurps an office to which he is not en-
lottery privileges may be instituted by titled may be deprived of it, do not pre-
the Attorney-General, in the name of the elude an inquiry into the legality of his
Commonwealth. CJom. v. Frankfort, 13 title to the office when it is directly put
Bush 185. in issue in an action against the officer.
(2) Uforpatioo off office. An action may Patterson v. Miller, 2 Met. 493 ; and see
be instituted by one who has been duly Com. v. Jones, 10 Bush 725.
elected to the office of city judge to pre- (5) In action by Commonwealth for
vent the usurpation of that office by an- usurpation of office, burden is on defend-
other, and to compel the usurper to sur- ant to show by what authority he holds
render the office and records to him. office, but where citizen sues to recover
Boyd V. Chambers, 78 Ky. 140. See office burden is on him to show right to
further, Collopy v. Cloherty, 95 Ky. 330. it. He can not recover on ground that
(3) A fine for usurpation of an office defendant has no right to office. Tillman
can not be recovered in a proceeding un- v. Otter, 93 Ky. 600, and see Toney v.
der this chapter. Com. v. Adams, 3 Harris, 85 Ky. 453.
Met. 7. I 483. Usarpatiofl off ffraochise. See Com.
(4) The provisions of the Code pointing v. City of Frankfort, 13 Bush 185.
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260 SALE OF REAL PROPERTY OF PERSONS, ETC. . [TITLE X
§ 485 IB84] Attoroey-Qeoeral — when to iostitute. For usurpation of other
than county offices or franchises, the action by the Commonwealth
shall be instituted and prosecuted by the Attorney-General.
§ 486 [B86] Persoo holdio; office, when a usarper. A person who continues
to exercise an office after having committed an act, or omitted to do
an act, the commission or omission of which, by law, creates a for-
feiture of his office, may be proceeded against for usurpation thereof.
§ 487 [B86] Usurper — ^jadinneot to be reodered afaiost. A person adjudged
to have usurped an office or franchise shall be deprived thereof by
the judgment of the court, and the person adjudged entitled thereto
shall be placed in possession thereof; but no one shall be adjudged
entitled thereto, unless the action be instituted by him. And the
court shall have power to enforce its judgment by causing the books
and papers, and all other things pertaining to the office or franchise,
to be surrendered by the usurper ; and by preventing him from fur-
ther exercising or using the same; and may enforce its orders by fine
and imprisonment until obeyed.
§ 488 [B8T] Fees received by usurper — how recovered. If the usurper have
received fees and emoluments arising from the office or franchise, he
shall be liable therefor to the person entitled thereto, who may claim
the same in the action brought to deprive him of the office or fran-
chise, or in a separate action. K no one be entitled to them, they
may be recovered by the Commonwealth, and shall be paid into the
public treasury.
CHAPTER XIV.
SALES OF REAL PROPERTY OF PERSONS UNDER DISABILITY, ETC.
§ 489. Sale of real estate of infants and persons of unsound mind.
§ 490. Real estate of joint owners — sale of.
§491. Reversion or remainder may be sold.
§ 492. Sales under sections 489, 491.
g 493. Bond to be executed — provision as to married women.
§ 494. Concerning sales, proceeds of sale, parties.
§ 495. Dower — sale of and compensation for.
g 496. Bond — when not required.
g 497. Purchase money — when to remain lien on land.
§ 498. Joinder of parties.
§ 489. Sale of real estate of iafants and persoos of uosouod mind. A vested
estate of an infant or of a person of unsound mind, in real property,
may be sold hy order of a court of equity —
§489. (1) Contingent Interest— sale for In- children with provision that if either
vestment Where land was devised to should die without issue his share should
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SALES OF REAL PROPERTY OF PERSONS, ETC.
261
1. Debt of ancestor to pay. For the payment of any debt or liabil-
ity of his ancestor or devisor with which he may be legally charge-
able, in an action brought against him pursuant to section four
hundred and twenty-eight; or in an action brought against him
by a creditor of the ancestor or devisor, unless it be enjoined pur-
suant to section four hundred and thirty-six.
2. Debt of creditor to pay. For the payment of his debt or liability,
in an action brought against him by his creditor.
8. Maintenance and education of ward. In an action by a guardian
against his ward, for a sale of the estate for the maintenance and
education of the ward. {See Ky. Stat.y sec. WS^^
4. Maintenance of lunatic and family. In an action by a committee
of a person of unsound mind against him, for a sale of the estate
for his maintenance, or for the maintenance of himself and his fam-
ily, including the education of his infant children.
go to survivor, the interest of one may
be sold and proceeds reinvested in land
to be held in same manner as land sold.
Harris v. Anderson, 3 R. 337; and see
Tyler v. Jewell, 10 R. 887 ; see note 5
sec. 490.
(2) Decree is oecessary in order to pass
title to land owned by infants. Bill v.
Burgess, 15 R. 41 ; see note 7 sec. 490.
(3) Qeoeral Statutes, chapter 66, article
6 (edition 1873), providing for sale of in-
fant's real estate, was not repealed by
Code. Newman v. Ecton, 14 R. 793.
The statute referred to was omitted from
General Statutes in editions edited by
Bullitt & Peland, because they believed
the Code provisions repealed, impliedly
at least, the statute. This was also omit-
ted from the Ky. Stat.— Ed.
(4> Oroiiods off sale. Under this section
the real estate of an infant can only be
sold for his debts or a liability with
which he is chargeable, or unJer a decree
in an action brought by bis statutory
guardian to obtain means for his sup-
port or education or a reinvestment of
the proceeds. Tyler v. Jewell, 10 R.
887.
(5) loproveaieiits. Sale of portion of
infant's land for the purpose of improv-
ing remainder is void because not au-
thorized by statute. Hays v. Bradley,
15 R. 387.
(6) Purchaser under void sale of in-
fant's real estate, who has in good faith
erected improvements, is entitled as
against the infants to recover the amount
that improvements have enhanced the
value of the land. Wornack v. Loar,
11 R. 6 ; Hays v. Bradley, 15 R. 387.
(7) Iflffant's real estate— sale of. As to
defense by infants and appointment of
guardian ad liti.m, see notes to sec. 36 ;
service of summons onj see sec. 53.
(8) It was held under old Code that so
much of the real estate of an infant heir
as may be necessary to pay the debts of
the ancestor may be sold in a proceeding
for that purpose, but if more than is
necessary for that purpose is ordered to
be sold, except as provided in this chap-
ter, the judgment will be void. Gill v.
Given, 4 Met. 197.
(9) Powers of coarts off equity to sell and
reinvest infant's real estate, or that of
persons under disability, are statutory,
and not inherent. Walker v. Smyser, 80
Ky. 620 ; Henning v. Harrison, 13 Bush
723 ; and the chancellor has no inherent
power to order a sale. The statute regu-
lating sales must be followed. Meddis v.
Bull, 13 R, 767.
(10) Practice. A purchaser can not, after
the confirmation of the sale, and after
the expiration of the term at which
confirmation was made, resist the pay-
ment of the purchase money because of
irregularities in proceedings under which
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SALES OF REAL PROPERTY OF PERSONS, ETC.
[title X
5. Reinvestment — sale for. In an action against aperson of unsound
mind by his committee ; or against an infant by his guardian ; or,
if the infant be a married woman, by her husband, if he be twenty-
one years of age, if not, by her next friend, for a sale of the estate
and investment in other property. {Venue of action^ sees. 6^^ 65;
as to defense by, and service of summons on, see sees. 36, 52, 53.)
§ 490 [»«a. »48] Joiot owoers — real estate of may be sold. A vested estate
in real property jointly owned by two or more persons may be sold by
order of a court of equity, in an action brought by either of them,
though the plaintiff or defendant be of unsound mind or an infant —
the sale was made. Todd v. Dowd, 1
Met. 281.
(11) Proceeds off sale under subsection
5 of this section, or under section 491,
may be applied if necessary to education
and maintenance of ward, if action is
brought by guardian under subsection 3,
Sawyer v. Guscurth, 3 R. 592.
(12) Veoae off actioa. In an action for
the sale of land and division of proceeds
among some of the heirs, and reinvest-
ment as to others, land situated in other
counties than that in which action is
pending may be sold, when the ancestor
died in and part of the land was located
in county where , action was brought.
Phalanv. Louisville Trust Co., 88 Ky. 24.
(13) Void sale. Judgment directing
sale of infants' real estate without any
person having been summoned as re-
quired by sec. 52 is void. Wornack. v.
Loar, 11 R. a.
§490. (1) Aneoded petitiofl— process. In
an action for the sale of infant's real es-
tate, process is necessary on an amended
petition asking sale of land not men-
tioned in petition. Howard v. Singleton,
94 Ky. 336 .
(2) Appraisement off laad is not necessary
in an action by devisees to have it sold
on account of its indivisibility. South-
wick V. Greuzenbach, 12 R. 263.
(3) Assifaee off |oiflt owner may main-
tain action to have indivisible real estate
sold. Hill v. Cornwall, 95 Ky. 512.
(4) Bond to inffant Where real estate
is owned by persons, some of whom are
infants and others married women, and a
proceeding is instituted to sell it under
subsection 2 of sec. 490. the execution of
the bond provided by sec. 493 is not nec-
essary, but the purchase price shall not
be paid by the purchaser, but shall re-
main a lien on the land as provided in
sec. 497. Nor is a privy examination of
the married woman, whether infant or
adult, necessary in a case like this to
pass the title to the purchaser. Kendall
V. Briggs, 81 Ky.ll9.
(5) Cootiofent interest Land devised
to a mother and "her children,*' they
being in possession, may be sold, and if
order directs investment of fund to be
held in same manner as land sold, the
purchaser takes a good title, although
other children may be born. Tyler v.
Jewell, 10 R. 887; and see Harris v.
Anderson, 3 R. 237 ; see note 1, sec. 489.
(6) Creditor off joint owner can not have
whole of land sold because it can not
be divided. Hill v. Cornwall, 95 Ky. 512.
(7) Decree necessary. Infants* real
estate can only be sold and conveyed in
the manner pointed out in the Code.
Where a father who was life tenant, his
children owning the remainder, sold the
land, a court of chancery had no power
to confirm the sale. Bill v. Burgess, 15
R. 41 ; see note 2, sec. 489.
(8) indivisible reai estate may be sold
upon allegation and proof that the inter-
est of the infants will be benefited with-
out reference to any other provision of
the Cbde or necessity of the infants.
Bacon v. Bills, 6 R. 217; all that is
necessary to show is, that property is
owned Jointly and in possession, is a
vested estate and can not be divided
without materially impairing Its value.
Burns v. Ingersoll, 6 R. 741.
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/
1. K the share of each owner be worth less than one hundred
dollars.
2. If the estate be in possession and the property can not be
divided without materially impairing its value, or the value of the
plaintiff's interest therein.
4f I. Reversiofl or remaioder may be sold. In an equitable action by the
(0) lafoots may sne as plaiatiffs by their
statutory guardian, and no defense is re-
quired to be made for them, nor is bond
required when the proceeds are to be in-
vested under order of court. Power v.
Power, 13 R. 793 ; Bacon v. Bills, 6 R.
217; Henning v. Barringer, 10 R. 674.
(10) Jolat teaaats — teaaato ia conaioa.
Joint tenants, tenants in common and
coparceners are entitled to have a divis-
ion of their real estate as contemplated
by this section, and a sale of it can not
be prevented by the objection of one of
the joint owners when the property can
not be divided, without materially im-
pairing the value. Subsec. 7, sec. 494,
only applies when the property can be
divided. Kean v. Tilford, 81 Ky. 600.
(11) Jarisdictioa. Although an action
for the division of land and allotment
of dower may be pending in one county,
a separate action for the sale of land un-
der subsection 2 of this section may
be brought in another county and land
situated there sold. Dan forth v. Moss,
90 Ky. 246.
(12) Laad nust be ia possessioa. Where
a wi fe died the owner of land in which her
husband had an interest as tenant by the
curtesy, a sale of the land could" not be
decreed under this section on petition of
the father against the children. Malone
V. Conn. 9.5 Ky. 93.
(13) Liffeteaaataadremaiaderaiea. Land
owned jointly by a person and the chil-
dren of another person, the interest of
the children being subject to the dower
right of their mother, may be sold under
this section if indivisible. Power v.
Power, 12 R. 793.
(14) Laaatic. Creditor may have estate
of sold to pay debts. German Bank v.
Engeln. 14 Bush 708.
(15) Moaey toleqaalize. In a suit for
partition of land owned jointly by two
or more persons, one of the joint owners
can not be compelled to accept his inter-
est partly in money in order to equalize
the division. Wrenn v. Gibson, 90 Ky. ^
189.
(16) Parties— mortgafee. In an action to
sell land because indivisible it is not nec-
essary that a mortgagee who asks that
his debt be paid out of the interest of
one of the owners, shall make the chil-
dren of the mortgagor parties, they
being parties to original action. South-
wick v. Greuzenbach, 12 R. 263.
(17) Parties— sale of |oiat iaterest In
an action by a guardian for the sale of
his ward's real estate owned jointly with
another, it is not necessary that the
ward should be a party, and therefore
where he is made a party it is not neces-
sary that he should be served with
process. Howard v. Singleton, 94 Ky. 336.
(18) Parcliase by faardlaa indirectly of
ward's land at decretal sale is construct-
ively fraudulent. Morrison v. Garrott,
15 R. 305 ; and see Faucett v. Faucett, 1
Bush 511.
(19) Service of process oa infaat— lN>ad.
In an action under sec. 490 for the sale
of real estate owned jointly with an
infant, it is not necessary that the infant
defendant be served with process if his
guardian appears and answers ; nor is it
essential to the validity of the sale that
before it is ordered the guardian should
execute the bond required by sec. 493.
Shelby v. Harrison, 84 Ky. 144.
(20) Sammoas is aot aecessary against a
lunatic when his committee enters his
appearance. Finzer v. Nevin, 13 R. 773.
(21) Vested iaterest la real estate whether
held in joint tenancy, or by tenants in
common or coparceners, if incapable of
division may be sold. Smith v. Upton,
12 R. 27.
§ 491. (1) UacoastitatioaaL So much of
sec. 491 ** as authorizes the sale of real
property upon the petition of the life
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[title X
owner of a particular estate of freehold in possession, or by his
guardian or committee, if he be an infant or of unsound mind, against
the owner of the reversion or re^lainder, though he be an infant or
of unsound mind, and against the owner of the particular estate, if
he be an infant or of unsound mind; or, if the remainder be con-
tingent, against the person, if in being, in whom it would have
vested, if the contingency had happened before commencement of the
action, though he be an infant or of unsound mind, and against the
owner of the particular estate, if he be an infant or of unsound mirnd —
real property may be sold for investment of the proceeds in other real
property.
§ 4f2 [»4i] Sales uoder sectioos 489, 491. In the actions mentioned in
subsections three, four and five of section four hundred and eighty-
nine and in section four hundred and ninety-one —
1 [i B44] No sale shall be ordered if forbidden by the deed, will
or contract under which the property is held.
2. The title papers, or copies of them, under which the property
is held, must be filed with the petition.
3 15 B41] The wife and children, if any, of the person of unsound
mind must be made defendants to the action.
tenant in opposition to the wishes of the
owner of the fee, where the latter is not
laboring under the disability of infancy
or of unsound mind, is unconstitutional."
Gossom V. McPerran, 79 Ky. 236; but
sale may be ordered if all parties in in-
terest consent. Robinson v. Fidelity
Trust Co., 11 R. 313; and see Harris v.
Anderson, 3 R. 237.
(2) Decree is necessary to pass title to
real estate of infants ; it can not be sold
or conveyed in any other manner than as
jirovided in the Code. Bill v. Burgess,
15 R. 41.
(3) Proceeds of sale under this section
may be applied to the education and
maintenance of the infant if necessary
for that purpose. Sanger v. Guscurth,
3 R. 592.
(4) Wlffe*s laod— sale of. Husband and
wife brought an action against their in-
fant children asking for the sale of two
tracts of land, in which it was alleged
the wife owned a life estate and the chil-
dren the remainder ; it appeared that the
wife owned the fee in one of the tracts,
and it wag held that the sale under the
judgment did not pass the wife's title in
the tract in which she owned the fee, but
did as to the other. Munnell v. Orear,
84 Ky. 452.
§492. (1) Sale forbiddeo by deed. Sub-
section 1 of this section, providing that
no sale shall be ordered if forbidden by
the deed or will, has reference to sales of
infant's real estate on the petition of the
guardian or committee, and was not in-
tended to be applied to sales of real es-
tate held jointl}', when the property so
held can not be divided without mate-
rially impairing its value or the plaint-
iff's interest therein; and in such cases
the property may be sold although the
sale of the interest of one of the joint
owners is forbidden by the deed. Kean
V. Tilford, 81 Ky. 600; Warfleld v. En-
glish, 11 R. 263.
(2) The provisions of this section inhib-
iting a sale if forbidden by the deed are
mandatory and must be obeyed. Moore
V. Thompson, 80 Ky. 424. See further, as
to what provisions in a will do not for-
bid sale, Lindemeier v. Lindemeier, 91
Ky. 264; McGraw v. Minor, 12 R. 687.
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TITLE X] SALES OF REAL PROPERTY OP PERSONS, ETC. 265
4. Facts must be stated in the petition, and must be proved, show-
ing that the sale will benefit the defendant; or, in the action
mentioned in section four hundred and ninety-one, facts must be
stated in the petition, and must be proved, showing that the sale
will benefit the parties interested in the property. (Evidence to be
taken on interrogatories^ sec. 674,.)
§ 4f3. Bood to be executed — provisioo as to married women. Subject to the
provisions of sections four hundred and ninety-one, four hundred and
ninety-six and four hundred and ninety-seven, and except the cases
mentioned in subsections one and two of sections four hundred and
eighty-nine.
1. Bond-— form of . The guardian of each infant, the committee of
each person of unsound mind, and the husband or next friend of each
married woman, must, before the sale is ordered, execute a bond to
the infant, infant married woman, or person of unsound mind, with
at least two sureties, worth not less than double the value of the
estate to be sold, in substance as follows: "We, principal,
and sureties, bind ourselves to that the said
as guardian (or committee or husband or next friend),
will faithfully discharge all his duties as such, and will comply
with the judgments and orders of the court in the action, and will
account for, pay and deliver to the said all money or prop-
erty due or belonging to him (or her) when required."
2. Court to approve. The court shall indorse its approval on said
bond, which shall be recorded with the order of sale, and certified
by the clerk of said court, who shall deliver it to the clerk of the
county court, and it shall, by him, bo recorded and properly indexed.
3. Sale void if not executed. If the bond be not given, any order
of sale, and any sale or conveyance made under such order, shall be
absolutely void and of no effect.
4. Privy examination of married woman. In an action against an
infant married woman, no order of sale shall be made until she file
an answer consenting to the sale, and acknowledge it, on privy
examination, before the court or the judge thereof, or a commis-
sioner appointed by the court.
§ 493. (1) Bond to be executed. When (2) Trust company authorized so to do
the provisions of this chapter require it, may by its president execute the bond,
bond must be executed by the guardian, without surety. Phalan v. Louisville
with at least two sureties, and it is not a Trust Co., 88 Ky. 34; Johnson v. John-
bond unless there are two sureties; and son, 88 Ky. 275.
unless this is done the sale will be void. (3) Where the object of the action,
Barnett v. Bull, 81 Ky. 127; Fritsch v. under sec. 490, is to sell the real estate
Klausing, 11 R. 788. and reinvest the proceeds, no bond is re-
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266 SALES OF REAL PROPERTY OP PERSONS, ETC. [TITLE X
5. Fund^ held until reinvested. In the case mentioned in section
four hundred and ninety-one, the court ordering the sale shall, by
its commissioner, retain the custody and control of the fund realized
by the sale until the same is reinvested in real estate, or in such
other property as the funds of persons under disability may be
invested by authority of law, and the court shall order the money
to be paid, by its commissioner, directly to the person from whom
the purchase for reinvestment is made, and to no other person, and
in which case no bond shall be required. (Sec. as amended by act
1892; and see as to investment of trust fundsy Ky. Stats.y sec.
4706)
GENERAL PROVISIONS.
§ 4f4. Conceroio; sales — proceeds of sales — iiarties. 1. The court shall
appoint a suitable person, as commissioner, to execute its judgment.
2. No warranty of title. The court shall cause the title of the
property to be conveyed by a commissioner to the purchaser, with-
out warranty.
8. Deed to be acknowledged and approved. The conveyance must
be acknowledged before and approved by the court, and be certi-
• fied by its clerk to the clerk of the county court for record.
4. Investment of proceeds. In the actions for investment author-
ized by section four hundred and eighty-nine, the court shall order
the proceeds of sales to be invested, subject to its approval, in real
estate in or out of this State, or in bonds of the United States or of
this State, or in the stbck of a bank of this State, subject to
the same uses, trusts and limitations, as the estate sold was
subject to.
5. Preservation and disbursement of proceeds. In the actions men-
tioned in subsections.three and four of section four hundred and
quired as the proceeds will be under the Gen. Stat., it was held not necessary to
control of the court. Powers v. Powers, have the land appraised, as the statute
12 R. 793; but see Fritsch v. Klausing, allowing redemption within one year
11 R. 788. only applied to sales made under judg-
(4) The execution of this bond does ments against debtors. Woolridge v.
not release from liability the sureties in Jacob, 79 Ky. 250 ; and see Southwick
guardian's bond in county court, the v. Greuzenbach, 12 R. 263.
sureties in both bonds are liable. Elbert (2) Doty off commlssioaer. The com-
V. Jacoby, 8 Bush 542. missioner has no power to change the
§494. (1) Appraisement oot oecessary. time, or terms, or place of sale specified
In an action by a guardian to have in- in the judgment. Gofer v. Miller, 7
fant's land sold, under chap. 63, art. 3, Bush 545.
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TITLE X] SALES OF REAL PROPERTY OF PERSONS, ETC. 267
eighty-nine, the court shall make proper orders for the preservation
and disbursement of the proceeds of the sale.
6. Descent of proceeds. If the owner of real estate which may
have been sold ijnder the provisions of this chapter die during
infancy; or, being of unsound mind, die intestate ; or, being an adult
married woman, die without having received the proceeds of sale
upon her written request, and upon privy examination as is author-
ized by this chapter, or without disposing in the manner authorized
by law of the property in which the proceeds may have been
invested, the person who would have been entitled to the property,
if it had not been sold, shall be entitled to the proceeds, or to the
property in which they may have been invested.
7. Parties — sale as to some, division as to others. All persons inter-
ested in the property must be made parties ; and, if objection to the
sale be made by a defendant having a joint interest, his share shall
not be sold, but the property may be divided, and a sale of
the shares of those desiring it may be ordered, if such division
and sale can be made without materially impairing the vdlue of
the property or of the plaintiff's interest therein.
8. Consent of trustee when necessary. If a deed or will give to a
trustee a discretionary power to sell the property, the court shall not
have power to order a sale of it without the consent of the trustee.
§ 495. Dower — sale of and compeosatioo for. If a woman have a vested
or contingent right to dower in land ordered to be sold pursuant to
the provisions of this chapter, the court, with her consent, to be
taken upon privy examination if she be married and of sound mind,
or without her consent if she be of unsound mind, may order a sale
of the land free from her right; and shall provide for reasonable
compensation to her out of the proceeds of sale, or that she shall have
the same right in property purchased with the proceeds as she had
in the property sold. {As to the sale and conveyance of inchoate right of
dower of married women who are lunatics, see Ky. Stat., sec. ^14S. As to
relinquishment of dower by wife of insane husband, see Ky. Stat., sec. ^14^.)
§ 496. Bond when not required — sale if sliare worth less than $100. 1. In
the action mentioned in subsection one of section four hundred and
ninety, neither the bond nor the privy examination provided for in
this chapter shall be required.
2. If the share of a joint owner be of less probable value than
one hundred dollars, a sale of it may be ordered, though the owner
of a share worth more than one hundred dollars may not consent
to a sale.
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268 SALES OF REAL PROPERTY OF PERSONS, ETC. [TITLE X
§ 497 [B4S] Purchase mooey wheo to remaia lieo oo land — iiaymeiit of pro-
ceeds aod interest. 1. In the action mentioned in subsection two of
section four hundred and ninety, the share of an infant, or of a per-
son of unsound mind, shall not be paid by the purchaser; but shall
remain a lien on the land bearing interest until the infant become of
age, or the person of unsound mind become of sound mind, or until
the guardian of the infant, or the committee of the person of unsound
mind, execute bond as is required by section four hundred and ninety-
three.
2. The infant upon becoming of age, or the person of unsound
mind upon becoming of sound mind, or the guardian or committee
of the infant or person of unsound mind, upon executing bond, may
receive the proceeds; but, if the infant be a married woman, the
provisions of subsection six of section four hundred and ninety-
four must be complied with.
3. The proceeds when received by a married woman shall be her
separate property.
4. The court may permit the guardian or committee, without
executing the bond above mentioned, or the married woman,
though she be an infant, to receive the interest on the money until
it is paid.
§ 498. Joinder of parties plaintiffs and defendants. Two or more persons,
either of whom can bring the action mentioned in subsection five of
section four hundred and eighty-nine, may join therein against defend-
ants who jointly own the property mentioned in the petition.
[TVust estates with remainder — sale of— -investment of proceeds —
improvements — taxes — insurance. That when lands are held in trust
by one person for the life of another, with remainder over to a class
of persons, or to any person not ascertained or to be ascertained
until the death of the person upon whose life such estate for
life is made to depend, or with power on the part of such
person for whose life such life estate is held by the trustee,
to dispose by a last will and testament, or by an instrument
in the nature of a last will and testament, it shall be competent
for the circuit courts or courts of like jurisdiction in the county
in which such land or a part thereof is situate, in an action to which
all persons having a present or vested interest in such land are par-
ties, to direct the trustee to either sell or mortgage such land ; but
§497. Purchaser can require lN>ad to be ex- §498. Constructloo of act 1882. Craig
ecuted by guardian so that he may receive v. Wilcox, 94 Ky. 484.
money. Kendall v. Briggs, 81 Ky. 119.
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TITLE X] SALBS OP REAL PROPERTY OP PERSONS, ETC. 269
in all action it must be averred and proven to the court that such
sale or mortgage would be beneficial to all the parties concerned,
and facts showing such benefij^s must be alleged and proven. Any
deed or mortgage executed under authority, or in pursuance of any
judgment rendered in any such action, shall be held and construed
and have the same effect as if executed by every person having a
vested or contingent interest in or ownership of such land, and as
if executed by all persons and classes who could take under the
limitations or provisions of said deed, or as devisees under the exer-
cise of such power to devise or appoint, and as if every claimant,
present or future, under such deed or power, was under no disabil-
ity whatever. The proceeds of the sales authorized by this section
shall be paid into court, and shall be reinvested by the court after
first having, by appropriate order, provided for the payment of the
costs and taxes, if any, in other property to be conveyed and held
subject to the same limitations and trusts as the land sold was held.
The proceeds of all mortgages of such lands as are mentioned in
this section shall be paid into court, and shall be appropriated under
the order of the court in the construction of permanent improve-
ments on the land mortgaged. But before appropriating such
money in the construction of such improvements, the court shall
provide for the payment of all unpaid taxes on said land, and the
costs of the action. The court shall require the life-tenant, out of
the rents, to pay the taxes and insurance on such improvements,
and residue of the rents to be paid into court for disposition by the
court until such mortgage debt is fully paid off; and such court
may provide for semi-annual reports to be made by such life-tenant;
and in the event of the disobedience of any order of such court by
such life-tenant, it shall be the duty of the court to appoint a
receiver, who shall take possession of such land and hold the same
as the court may direct, and collect and receive all the rents and
profits of such land, and pay the same into court for such disposi-
tion thereof as the court may take.] {Words in brackets acts of
1882.)
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270 DIVISION OF LAND AND ALLOTMENT OF DOWER. [tITLB X
CHAPTER XV.
DIVISION OF LAND AND ALLOTMENT OP DOWER.
§ 499. 1. Circuit or county court has Jurisdiction — parties— practice.
2. Persons under disability— provision as to.
3. Division or' allotment — when court may order.
4. Three commissioners to be appointed— oath of.
5. Time and place of meeting of commissioners.
0. Duty of commissioners— report— practice.
7. Deeds to be made if report confirmed.
8. Report and deeds to be recorded.
9. Two commissioners may act.
10. Allegations of petition may be contested — trial by court.
11. Removal of case from county to circuit court.
12. Appeal may be taken.
13. Costs — how apportioned.
14. Verification of pleadings not required.
15. Compensation of commissioners — taxed as costs.
10. Jurisdiction of courts of equity not aflfected.
499a. Partition of land between life-tenants and their descendants.
§ 499 [»«• to 66«] Circnit or conoty conrt has jarisdiction — parties — practice. 1. A
person desiring a division of land held jointly with others, or an allot-
ment of dower, may file in the circuit court or county court of the
county in which the land or the greater part thereof lies a petition
containing a description of the land, a statement of the names of those
having an interest in it, and the amount of such interest, with a
prayer for the division or allotment ; and, thereupon, all persons inter-
ested in the property who have not united in the petition shall be sum-
moned to answer on the first day of the next term of the court. The
written evidences of the title to the land, or copies thereof, if there
be any, must be filed with the petition.
§ 499. (1) Allotmeat of dower. '* By (3) Appeals. In Davidson v. Davidson,
proceeding to have dower assigned and 1 R. 340, it was held that where the ap-
not insisting upon the allotment of home- peal was taken under Meyer's Code
stead, appellant waived her right to (Code of 1854) to the circuit court, in a
homestead." Burch v. Atehinson, 82 proceeding for the division of land, that
Ky. 585; and see further, as to dower, the circuit court had no right to try the
Ky. Stat., sec. 2132. case de novo, but should have affirmed
(2) A widow is not entitled to dower or reversed' the judgment of county
unless her husband was beneficially seized court. This Code does not in terms au-
of the land during coverture. Fontaine thorize an appeal to the circuit court.
V. Dunlap, 82 Ky. 321 ; 18 B. M. 107. See (4) Commissloaer's report where the evi-
further, Fritz v. Tudor, 1 Bush 28; dence is conflicting will be sustained,
Morgan v. Conn, 3 Bush 58, and Ky. Stat., unless it appears that they have made a
sec. 2132 and notes. decided error. Chamberlain v. Bal-
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TITLE X] DIVISION OP LAND AND ALLOTMENT OF DOWER.
271
2. Persons nnder disability — provisioo as to. The statutory guardian
of an infant, committee of a person of unsound mind, and husband
of a married woman, may file or unite in the petition, in the names
of, and in conjunction with, such infant, person of unsound mind,
or married woman ; and, if the petition be against an infant, per-
son of unsound mind, or married woman, the guardian, committee
or husband may appear and defend for them; if they fail to do so,
the court shall appoint a discreet person for that purpose.
3. Divisioo or allotmeot — ^wheo coart may order. Upon such a petition
by all interested in the property; or upon the service of a sum-
mons on all who have an interest in the property and have not
united in the petition, ten days before the commencement of the
term, the court may order the division, or allotmeiit of dower,
according to the rights of the parties.
4. Three commissiooers to be appointed — oath of. The court shall
appoint three competent persons to make the partition, or allot-
ment of dower, or both, having a due regard to the rights of all
parties interested. Before proceeding to act, the commissioners
shall take an oath to discharge their duty impartially.
linger, 11 R. 966; McClanahan v. Mc-
Olanahan, 12 R. 440, and see note 21.
(5) Costs— apportionmeat of. See Will-
iamson V. Williamson, 1 Met. 303 ; Ky.
Stat., sees. 489, 2080.
(6) INyisioa of bmd— rights of parties. It
is proper to order the commissioners to
80 lay oflP the share of one, as to adjoin
other land owned by him, if no detriment
would be done to the others ; and to lay
the parcels of each in dififerent tracts as
near together as may be done without
4oing injustice to the others. Gaithers
V. Brown, 7 B. M. 90 ; Graham v. Graham,
8 Bush 334.
(7) Dower. For tables estimating the
value of potential right of dower, see
Lancaster v. Lancaster, 78 Ky. 198 ; and
value of present right of dower, see
Alexander v. Bradley, 3 Bush 667; 3
Bush 216; see]Ky. Stat., sec. 2132, and
notes thereto.
(8) Indivislbie iMd. Although land
may be indivisible as a whole, yet if the
interest of one of the owners can be set
apart to him without injury to the
interest of the other owners, it should be
"done. Conner v. Cox, 15 R. 140.
(9) lafaats — practice. Where land in
which infants have an interest is divided
without making them parties, after-
ward upon being brought before the
court their guardian may adopt the
report of division theretofore made if it
is fair. Ky. Union Land Co. v. Elliott,
12 R. 812.
(10) JorisdictioD— eqnitabie defease. In
an action for the division of land and al-
lotment of dower the court may divide
lands or allot dower in lands lying in
other counties. Dan forth v. Moss, 90
Ky. 246.
(11) In action to have land divided the
county judge has the power to hear and
determine any equitable defense that
may be pleaded against a division. Hop-
kins V. Crouch. 86 Ky. 281.
(12) Limltatioa. An action to recover
dower is barred after fifteen years from
the time when the cause of action ac-
crued. Anderson v. Sterritt, 79 Ky. 499.
(13) Money to equslize. In the division
of land between coparceners the pay-
ment of money may be permitted to
equalize an allotment if the money can
be paid out of a common fund to be dis-
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272 DIVISION OP LAND AND ALLOTMENT OF DOWER. [TITLE X
5. Time aod place of meeting of commlssioflers. The order of appoint-
ment shall fix a time and place for the meeting of the commis-
sioners, who shall meet accordingly ; but, if prevented from meeting
at the time and place so fixed, they may meet as soon thereafter
as convenient ; and may adjourn to such other time and place as
they may agree upon, until their duty shall be performed.
6. Duty of commissiooers — report — practice. They shall survey and
allot to the parties their respective interests in the land, and make
report thereof to the court ; which may either confirm, set aside,
or remand the report to the commissioners for correction.
7. Deeds to be made if report confirmed. If the report be confirmed ,
a commissioner to be appointed for the purpose shall, by deed,
convey to each party the land allotted to him.
8. Report aod deeds to he recorded. Said report and deed shall be
recorded in the clerk's ofiice of the county court, in proper books to
be kept for that purpose ; and, if the report be confirmed by the
circuit court, it and the deed shall be certified by the clerk of that
court to the clerk of the county court, for record.
9. Two commissiooers may act. Two of the commissioners may act,
if one refuse or fail to do so.
10. Alle^atioos of petitioo may he cootested — trial by court A party
summoned may, by answer, controvert the allegations of the peti-
tion or contest the rights claimed therein ; and, thereupon, the case
shall be tried and decided as an ordinary action, but without the
intervention of a jury.
tributed between the heirs. 90 Ey. 189 ; (16) Payment of money to equalixe. In a
but in other cases if the payment of suit for division between tenants in com-
money is necessary to equalize the allot- mon or joint owners, one of the joint
ment the land should be sold and not owners can not be compelled to accept
partitioned. Wrenn v. Gibson, 90 Ky. his interest partly in money and partly
189. in land. Wrenn v. Gibson, 90 Ky. 189.
(14) Oath of commissioners. Where (17) Rents. In Bridgford v. Barbour,
commissioners verbally agreed upon their 80 Ky. 529, it was held that where one of
report before being sworn, but afterward the heirs who was also executor collected
took the required oath and made the rents, the amount so collected was a
same report as that agreed upon, an ob- charge on his portion of the estate,
jection that they were not sworn is not , (18) One tenant in common or joint
well taken. McClanahan v. McClanahan, tenant has not a lien on the interest of
12 R. 440. his co-tenant for the pa3'ment of the
(15) Parties. The persons owning an value of the rent received by the latter
interest in the land under the same title before partition of the land. Such rent
are the only persons necessary to be isonlyax)ersonalclaim. Burchv. Burch,
made parties. It is not necessary to 82 Ky. 622.
make those claiming an adverse interest (19) In an action to have dower al-
parties. Mclntire v. Mclntire, 82 Ky. lotted, rents can be recovered from the
502. institution of the suit; and if the
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TITLB X] DIVISION OF LAND AND ALLOTMENT OF DOWER. 273
11. Renoval of case from coaaty to circuit court If the action be
pending in the county court when such answer is filed, it may
be removed, on motion of either party, to the circuit court, for
trial ; and the clerk shall, thereupon, deliver the papers pertaining
to the case to the clerk of the circuit court.
12. Appeal nay be takeo. An appeal may be taken to the Court
of Appeals from a final judgment, whether rendered by the cir-
cuit court or county court.
13. Costs — how apportiooed. The costs of the action shall be appor-
tioned among the parties in the ratio of their interests, except that
the costs arising from a contest of fact or law shall be adjudged
against the unsuccessful party.
14. Verification of pleadings uot required. No verification of the plead-
ings shall be required.
15. Compensation of commissioners — taxed as costs. The commissioners
shall be paid a reasonable compensation, to be taxed as costs.
16. Jurisdiction of courts of equity not affected. This section does not
aflfect the jurisdiction of courts of equity to make partition or
allot dower.
§ 499a. Partition of land between life tenants and their descendants. That
where land is held under deed or will vesting a life estate in two or
more persons or in trust for their benefit, with remainder as to the
share of each to his or her children or descendants, it shall be lawful
for a court of equity, on the petition of one of such life tenants and
his or her children or descendants who would then be entitled to
such remainder, all persons having interests in such lands being made
parties, to partition such land so as to set apart to such life tenants
and children or descendants so much of said land to which they shall
plaintiff die her administrator can re- (22) Veriflcatioa of pleadlass not re-
cover rent for the same time. Magruder quired. Hall v. Snipes, 10 R. 435; sub-
V. Smith, 79 Ky. 512 ; Yancy v. Smith, 2 section 14.
Met. 408. (23) Warranty— Umltatloa. The implied
(20) The widow is entitled to one-third warranty of title which arises from a par-
of the rents and profits of her husband's tition of land between joint devisees sur-
dowable estate from his death until vives to an heir of one of them, but
dower is assigned her as against a vend- such implied warranty does not run
er's lien for the purchase money. Wil- with the land so as to give a right of
son V. Ewing, 79 Ky. 549 ; but is not en- action to a vendee of one of the
titled to dower as against the vender's parceners. Jones v. Bigstaff, .95 Ky.
lien. Lee v. James, 81 Ky. 443. 395.
(21) Report of conmissloaers appointed (24) The statute of limitation does not
to make partition is subject to excep- begin to run against a partitioner or his
tion only upon the ground that they de- heir for contribution until there has been
parted from or disregarded the judgment. an actual loss of land by superior title.
Beatty v. Beatty, 10 R. 72, and see note 4. 95 Ky. 395.
(18)
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274 REVIVOR OF ACTIONS. [TITLE XI
be entitled in severalty; and to that alone shall attach the title
or interest of after-born children or descendants in whom, by the
terms of said deed or will, such remainder would vest.
2. Where part of the land so held shall be situated in this State
and part in another State, the court may, in making partition, take
into consideration the value of all of said land, and set apart to
those resident in this State land in this State equal to their full
share of all of said land, securing, by proper deeds and orders to
the non-residents, release of the interest of such residents in the
lands in the other State or Territory. {Ad 1886.)
TITLE XI.
REVIVOR OF ACTIONS.
§ 500. Unnecessary when— judgment without — order of.
§ 501. Order of may be on motion or by action.
§ 502. Consent revivor — service of order — when action revived.
§ 503. Revivor after notice.
§ 504. Non-resident — revivor against.
§ 505. Real representatives — revivor against.
§ 506. Real representatives — revivor against.
§ 507. Six months must elapse unless by consent.
§ 508. One year in which to revive against defendant.
§ 509. Plaintiff may revive at once^-limitation one year.
§ 510. Action to be dismissed if time expired.
§ 511. Dismissal for failure to revive — notice.
§ 512. Trial not postponed if action revived.
§ 500 [BBT to 5«»] Uooecessary when — ^jndfineot without — order of. Upon the
death of a party to an action, or the cessation of his power as a per-
sonal representative or other fiduciary —
§580. (1) Meaniagof sorvives. It was (3) Parties. An order of revivor should
held under the Code of 1854 that the be served on the owner of the legal title
word "survives," used in sec.*557 (sec. 500 to land ordered to be sold in the life-
of this Code), *• is used in its technical time of the intestate, and where a sale
sense, and only applies to cases in which is made, but has not been reported or
the right survives by operation of law, confirmed, the action should be revived in
or operation of the will of contract under the name of the personal representative
which the parties claim or are charged." and heirs. Murphy v. Fryer, 1 R. 348.
Smith V. Ferguson, 3 Met. 424. (4) Practice. In an action to recover
(2) Order TvMn% not final and no appeal land, the defendant died, leaving infant
can be taken therefrom. If the order is children. The order of revivor was
improper the court can review its ac- served on those over and under fourteen
tion when a final judgment is rendered, years of age. As to the latter, the serv-
Reeves v. Davis, 6 R. 514. ice was void. Cox v. Story, 80 Ky. 64.
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TITLB Xl]
REVIVOR OF ACTIONS.
275
1. If the right of action survive to or against the remaining
parties, the action may proceed, without revivor, after statement,
on the record, of such death or cessation of power.
2. Though the right of action do not survive to or against the
remaining parties, the court may render judgment, as between
them, if it can do so without prejudice to others.
3. If the right of action survive or pass to or against a person
who is not a party to the action ; or pass, otherwise than by sur-
vivorship, to or against a person who is a party to the action, the
action may be revived, by an order of the court, for or against
such person. {How judgments revived^ sees. 4D1 to 408; provisions
of this title apply to cases in Court of Appeals^ sec. 767.)
§ 501 [»•!] Order may be oo motioa or by actioo. The order may be made
on the motion of any party to the action, or of his representative or
(5) The plaintiff having died, an order
was made reviving the action in the
name of his administrators and heirs;
but there was no service of the order on
defendant, and the record did not show
on whose motion the action was revived.
It could not be presumed that the order
of revivor was made on motion of defend-
ant, and a Judgment for the plaintiff
was held to be void. Amyx v. Smith, I
Met. 529.
(6) The death of defendant being sug-
gested and the action continued for re-
vivor, at the next term, without a formal
revivor, his executrix filed answer. On
a second appeal by the plaintiff from a
judgment against him, it was held too
late to question her right to defend.
Moss V. Rowland, 3 Bush 505.
(7) When a plaintiff dies pending his
suit, his death may be pleaded in abate-
ment; but the defendant may waive such
plea, and permit the cause to be tried
upon its merits, without revivor. The
death of a plaintiff after Judgment in
the Circuit Court and before the appeal
was prosecuted did not take from the
Court of Appeals the right to entertain
the appeal prosecuted in the name of the
dead plaintiff, and the Judgment of re-
versal was not void. Spalding v. Wathen,
7 Bush 059; and see Hopkins v. Hopkins,
91 Ky. 310.
(8) The death of the appellee after
judgment and before the time allowed in
which to file a bill of exceptions will
not prejudice the appellant, if his bill be
tendered within the time allowed, al-
though there has been no revivor. Hay-
den V. Ortkeis, 83 Ky. 396.
(9) It was agreed between counsel that
the action should be revived against the
administrator, but the agreement was
not entered of record, and on an appeal
the administrator had the action dis-
missed because there was no revivor.
The proper practice in such case would
be to have applied in proper time to the
circuit court and have the order of re-
vivor entered and the defect in the rec-
ord supplied. Williams v. Thompson, 80
Ky. 325.
(10) Purchaser at iodlcial sale dies be-
fore sale is confirmed, the sale can neither
be confirmed nor set aside unless the
heirs of the purchaser are before the
court. Gardner v. Roberts, 4 R. 614.
(11) Revivor in Court of Appeals dispenses
with necessity for revivor in lower court
upon return of case. Howell v. Smith,
7 R. 305; see sec. 767; and Thompson v.
Williams, 86 Ky. 15, which holds that a
personal representative by making a mo-
tion to dismiss an appeal does not enter
his appearance so as to dispense with
service of the order of revivor in lower
court.
§501. (1) Revivor — by pleading. The
fact that a person had not been appoint-
ed administrator at the time a petition
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276 REVIVOR OP ACTIONS. [TITLB XI
successor, suggesting the death or cessatipn of power, which with
the name and capacity of the representative or successor shall be
stated in the order. Or any party to the action, or his representative
or successor, may file in the action a petition against the other
parties, stating facts necessary to authorize a revivor, with a prayer
therefor, upon which summons may be issued and served, or a warn-
ing order may be made under like restrictions and with the like
effect as if issued or made upon original petition. {Sec. as amended
by act 1894.)
§ 502 [»•!] CooseBt revivor — service of order — wheo actios revived. If the
order be made by consent of the parties, the action shall forthwith
stand revived; and, if not made by consent, the order shall be
served, in the same manner as a summons, upon the party adverse to
the one making a motion. And, at the first term commencing not
less than ten days after such service, the party upon whom it is made
may show cause against the revivor ; and, if sufficient cause be not
then shown, the action shall stand revived.
§ 503 [»•»: Revivor after notice. If ten days' notice have been given to
the representative or successor of the party who died, or whose
powers ceased, of the motion by the adverse party for an order to
revive the action in his name ; or to the adverse party, if the motion
be by such representative or successor; and due return be made of
the service of the notice, the court may, if sufficient cause be not
shown to the contrary, make an order reviving the action in the name
of such party; whereupon, the action shall stand revived. {Who is
''successor;' sec. 732-^20.)
§ 504 [5«4i Noo-resideot — revivor agaiost If it be shown by the affidavit
of the person applying for an order of revivor, that the person against
whom it is asked is a non-resident of this State ; or has been absent
from it four months; or has left it to avoid the service of the order;
or so conceals himself that it can not be served upon him ; or that
his name and place of residence are unknown to the affiant, the court
may make an order warning him to appear on the first day of its next
term, commencing not less than sixty days after the making of the
order; and the action shall then stand revived against such person,
unless sufficient cause be shown to the contrary.
asking revivor was filed in his name as (2) Although an amended pleading
such is immaterial if he was afterward asking revivor is filed in vacation, if no
appointed and qualified and the defend- objection is made on this ground when
ant entered his appearance to the case is heard, this court will treat it as
petition. Fish back v. Green, 87 Ky. part of the record and hold the revivor
107. in time. Hall v. Snipes, 10 R. 435.
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TITLE Xl] REVIVOR OF ACTIONS. 277
§ S^ [Mf] Keal represeitatives — revivor agaiast If a year elapse after the
death of a defendant, and no person qualify as his personal represent-
ative, the action may be revived against his real representatives or any
of them. {Who is ^^real representative" sec. 733-18.)
§ 5M [ft<T] Real representatives — revivor agaiost. Upon the death of a
defendant in an action for the recovery of real property only, or which
concerns only his rights or claims to such property, the action may be
revived against his real representatives or any of them, and an order
therefor may be forthwith made in the manner directed in the pre-
ceding sections of this title.
§ 507 [«••] Six months niast elapse unless by consent An order to revive
an action against the personal representative of a defendant, or
against him and the real representatives of the defendant, can not be
made, unless by consent, within six months after the qualification of
the personal representative.
§ 598 [»••] One year in which to revive against defendant. An order to
revive an action against the representative or successor of a defend-
ant shall not be made, without his consent, unless within one year
after the time when it could have been first made.
§ W^ [»T0] Plaintiff may revive at once — limitation one year. An order to
revive an action in the name of the representative or successor of a
plaintiff may be made forthwith, but shall not be made without the
consent of the defendant after the expiration of one year from the
time the order might have been first made ; except that, if the
§ 59S. HdfB — revivor asaiast Where a property, the purchaser of such proper-
defendant dies pending an action, and ty, without notice of such suit, will not
no personal representative qualifies, the be affected by it. Hull v. Deatly, 7
action may be revived against the heirs, Bush 687.
but the remedy against the heirs being (8) Order nade withia less thaa six
equitable, if the action is in ordinary, it moaths from the qualification of the per-
should be transferred to equity. Hagan sonal representative is a nullity unless
V. Patterson, 10 Bush 441. made by consent, or unless the representa-
§ 507. (1) Asaiast' a veadee. A suit by tive enters his appearance to it. Thomp-
the vendor against the vendee to enforce son v. Williams, 86 Ky. 15 ; but objec-
a lien on land is not an action for the re- tion comes too late if made for first time
covery of real property, and can not be in Court of Appeals. Maupin v. Berkley,
revived as provided in sec. 506. It must 3 R. 617.
be revived under sec. 507. Buford v. § 50ft. Order to revive must be entered
Guthrie, 14 Bush 677. within twelve months, but it is not nec-
(2) Umitatioa. The death of the plaint- essary that summons or notice be served
iff abates the action, and if it is not re- within that time or action actually re-
vived within a year limitation will run vived, but due diligence must be exer-
from the death of the plaintiff. If a per- cised in having service of order. Thomp-
sonal representative fail to revive, with- son v. Williams, 86 Ky. 15.
in a year after plaintiff's death, an action § SW. (1) Order to revive in name of
brought for the recovery of personal representative or successor may be made
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278
REVIVOR OF ACTIONS.
[title XI
defendant shall also have died, or his powers have ceased, in the
meantime, the order of revivor on both sides may be made in the
period limited in the last section.
§ 510 [571] ActioB to be dismissed if time expired. If it appear to the court,
by affidavit, that either party to an action has been dead, or, if he sue
or be sued as a personal representative, that his powers have ceased,
for a period so long that the action can not be revived in the name
of his representative or successor without the consent of both parties,
it shall order the action to be stricken from the docket.
§ 511 [5TS1 Dismissal for fallore to revive — notice. At any term of the
court succeeding the death of the plaintiff, whilst the action remains
on the docket, the defendant, having given to the plaintiff's proper
representatives, in whose names the action might be revived, ten
days' notice of the application therefor, may have an order to strike
the action from the docket, and for costs against the estate of
the plaintiff, unless the action be forthwith revived.
§ 512 [»TSj Trial oot postponed if action revived. When, by the provisions
of the preceding sections, an action stands revived, the trial thereof
shall not be postponed by reason of the revivor. {Form of execution
to be levied of assets in hands of administrator ^ page 639)
at any time within one year from the
term of court at which order might flrst
have been made ; limitation begins to run
from that time and not from death of
plaintiff. Horsley v. Asher, 94 Ky.
314.
(2) After expiration of one year ac-
tion can not be revived without consent
of the defendant except in the cases
mentioned in last clause of this section.
B. & G. T. Co. V. Howell, 13 R. 563; Ap-
person v. Fulkerson, 7 R. 452.
(3) Where an executor who is prose-
cuting an action dies, his personal repre-
sentative can not have action revived in
his name. 13 R. 503.
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TITLE XIl] PROCEEDINGS TO REVERSE AND VACATE JUDGMENTS. 279
TITLE XII.
PROCEEDINGS TO REVERSE, VACATE OR MODIFY JUDGMENTS.
§ 513. Court rendering, or Court of Appeals may.
§ 514. Court of Appeals, may for errors In record.
§ 515. Proceedings by appeal.
§ 516. Misprision not ground of appeal — until.
§ 517. Misprision defined.
§ 518. Modification or vacation of judgment after term.
§ 519. Misprision corrected by motion — time to make motion.
§ 530. Petition to vacate or modify judgment.
§ 521. Conditions on which judgment vacated.
§ 523. Grounds relied on to vacate to be first tried.
§ 533. Injunction pending proceedings.
§ 524. Premature judgment may be suspended.
§ 513 :ftT4] Court reoderin;, or Conrt of Appeals may. A judgment rendered
in the circuit court may be reversed, vacated or modified, either by
it or by the Court of Appeals. {Judgment defined^ sec, 368,)
§ 514 [»T6] Court of Appeals may, for errors in record. A judgment may
be reversed or modified by the Court of Appeals for errors appear-
ing in the record. {Errors not regarded unless prejudicial^ sees. 338^
756 ; how errors shown in record, sees. 333 to 340,)
§ 515 [»T«] Proceeding:8 by appeal. The proceedings to obtain such
reversal or modification shall be by appeal prosecuted as prescribed
by law.
§ 516 [»TT3 Misprision not jH'onnd for appeal — until. A misprision of the clerk
shall not be a ground for an appeal, until the same shall have been
presented and acted upon in the circuit court. {See also, sec. 763,)
§ 517 [57«] Misprision defined. It shall be deemed a clerical misprision —
1. To render judgment before the action stood for trial pursuant
to the provisions of this Code.
§ 513. Judsineat. See notes to sec. 368. refused, such an error is not available for
§516. Misprlsioii not sroond of appeal reversal in this court." Dodds v. Combs,
until acted on in lower court. Morrison 3 Met. 29.
V. Beckham, 16 R. 294. (2) **A clerical misprision can only be
§ 517. ( 1 ) Clerical misprisloii defiaed. shown by the record. This is proved by
"The rule seems to be that whenever the the familiar rule that a misprision can
error complained of is ascertained to only be corrected -by the record." Ben-
consist in the mistake of the clerk and nett v. Tiernay, 78 Ky. 580; Boyd Co. v.
not in the judgment of the court, and Ross, 95 Ky. 167.
there exists anything in the record by (3) Correction of. Clerical misprision
which it can be amended, the applica- can not be corrected after the expiration
tion should be made to amend in the of the term at which the judgment was
court below, and, until thus made and rendered, except after notice to adverse
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280
PR0CBBDIN08 TO REVERSE AND VACATE JUDGMENTS. [tITLE XII
2. To render judgment against an infant — excepting married
women — or persons of unsound mind, until a defense or report is
filed pursuant to the provisions of section thirty-six, subsection
three. {When actions stand for trial, sees. 363, 36i)
party and where court attempts to do
so without notice the corrected judgment
is void and no appeal lies from it until
motion is made to set it aside. Seiler v.
Northern Bank, 80 Ky. 128, and see notes
to sec. 519.
(4) Instaaces of nlsprtoioa. An error
in the judgment as to the date from
which interest is to be computed, Clark
V. Finnell, 16 B. M. 329; Johnson v.
Bank, 2 Duv. 521 ; Wilson v. Barnes, 13
B. M. 330; or to render judgment for pro-
test fees not claimed in the petition, 16
B. M. 329, is a misprision.
(5) Where the petition admits the
payment of a sum, and the credit is
omitted in the judgment, it is a mis-
prision. Dodds V. Combs, 3 Met. 29 ; Hle-
ronymous v. Mayhall, 1 Bush 508 ; Long
V. Gains, 4 Bush 353 ; Bell v. Mansfleld,
12 R. 89. See Tong v. Eifort, 80 Ky. 152.
(6) In an action upon two notes failure
to embrace one of them in a judgment
by default. Smith v. Mullins, 3;Met. 182 ;
or to give judgment "in favor of A and B
on a note alleged to have been sold by A
to B, and asking judgment in B*s favor
alone. Oldham v. Brannon, 2 Met. 302 ;
or where pending an action on a note in
favor of A, an amended petition is filed
setting up that the note has been as-
signed to B, and asking judgment in his
favor alone, giving judgment in favor of
A, is a clerical misprision. Cooper v.
Poston, 1 Duv. 92.
(7) It is a misprision to render judg-
ment before action stood for trial. Web-
ber V. Webber, 1 Met. 18 ; or to give
judgment upon an award not delivered
to the parties ten days before the com-
mencement of the term at which judg-
ment is rendered. Carson v. Carson, 1
Met. 434; or upon constructive service
prematurely. Buckner v. Bush, 1 Duv.
394 : or to give judgment against some
of the defendants before all the neces-
sary parties are served with process.
Breeding V. Stamper, 18 B. M. 175.
(8) It is misprision to render judg-
ment against a defendant not summoned
in the county where action is brought,
before judgment is or can be rendered
against a defendant summoned in the
county. Duckworth v. Lee, 10 Bush 54 ;
Pottinger v. May field, 14 B. M. 647; or
to render judgment by default where
summons is executed in the county in
which suit is brought not in time, and
out of that county in time, on the serv-
ice in the latter county, Raymon v.
Reed, 16 B. M. 345 ; see Ruby v. Grace,
2 Duv. 540 ; or in an action against sev-
eral, one of whom is a nominal and un-
necessary party, to render judgment
against the ** defendants" without dis-
crimination, C, H. & D. R. R. Co. V.
Spratt, 2 Duv. 4 ; or to render judgment
against infants before defense filed.
Morrison v. Beckham, 16 R. 294.
(9) Mistake of clerk in entering amount
of judgment may be corrected by motion.
Vissman v. Bryant, 14 R. 874.
(10) Llnitatioa. There is no limitation
except such as pertains to the bringing
of actions to a motion to correct a cler-
ical misprision. Lawless v. Sevier, 5 R.
239; Smith v. Mullins, 3 Met. 182.
(11) Not nisprisioii. Failure of the
court to render judgment in conformity
with the law, Rogers v. Bradford, 8 Bush
163; or to give judgment on an invalid
bail bond, Pauer v. Simon, 6 Bush 514;
or to render personal judgment against
a defendant constructively summoned,
Payne v. Witherspoon, 14 B. M. 270; is
a judicial error; and see Deshong v.
Cain, 1 Duv. 309.
(12) To render judgment against a de-
fendant who has not been summoned,
Joyce V. OToole, 6 Bush 81; Long v.
Montgomery, 6 Bush 394 ( the latter case
overruling Robinson v. Mobley, 1 Bush
196); or who has been summoned out of
the county in which the action is
brought. Ruby v. Grace, 2 Duv. 540;
Dyas V. Lindsey, 4 Bush 349; or against
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TITLB Xn] PROCEEDINGS TO REVERSE AND VACATE JUDGMENTS.
281
§ 51S [5Tt] Modificatioa or vacatioii of judfneiit after term. The court in
which a judgment has heen rendered shall have power, after the
expiration of the terra, to vacate or modify it —
1. By granting a new trial for the cause and in the manner pre-
scribed in section three hundred and forty-four.
an administrator without revivor, Amyx
V. Smith, 1 Met. 539; is not misprision.
The judgment is void. See sec. 763 and
notes thereto.
(13) The rendition of a judgment be-
fore a defense by the guardian for the
infant defendants is. not misprision.
Pond V. Doneghy, 18 B. M. 558.
(14) If the defendant object to a judg-
ment on process not executed in time
<Raymon v. Reed, 16 B. M. 345; Hedger
v. Downs, 2 Met. 160), or moves for a con-
tinuance, which is improperly refused
(Mattlngly v. Bosley, 2 Met. 443; Smith v.
Ferguson, 3 Met. 424), it is not misprision
to overrule the objection or motion.
(15) Judgment for usurious interest
prayed for in petition is not a clerical
misprision; it is an appealable error.
Bunger v. Hart, 3 R. 518.
(16) Nanc pro taiic orders can not be
made unless there is something in record
to amend by. Boyd Ck). v. Ross, 95 Ky.
167.
(17) Prmdlce. In cases of clerical mis-
prision it is an inviolable rule that no
amendment can be made unless there is
something in the record to amend by.
Boyd Co. V. Ross, 95 Ky. 167.
§ 518. (1) Casualty— inisfortane. If the
plaintiff or his attorney, before judg-
ment, either directly or indirectly puts
a party who is not liable for the debt
sued on oflf of his guard, or prevents him
from defending the action, such conduct
will entitle the party to relief. Hayden
V. Moore, 4 Bush 107. See further, notes
1-10, sec. 340.
(2) A petition to vacate a judgment
alleged that plaintiff's failure to deny a
material allegation in the answer, be-
cause of which defect judgment went
against him, was the fault of his attor-
ney, who drew the answer. Held that
the petition did not present sufficient
grounds for a new trial. Phillips v.
Skinner, 6 Bush 662.
(3) The discovery of a defect in the
title to land after judgment decreeing a
specific performance is not sufficient
cause to vacate the judgment, when the
deed containing the defect was on record
in the proper office, and could have been
examined. Denny v. Wickllffe, 1 Met.
216.
(4) But if the index to the deed-book
was lost, and after- diligent search the
deed could not be found, the party dis-
covering the missing deed after judg-
ment would be entitled to a rehearing.
Elliott V. Harris, 81 Ky. 470.
(5) Where a judgment is rendered by
default against a garnishee, he can not
have it vacated on the ground that the
note on which he owed the defendant
the money garnisheed had been assigned
by the defendant to another person be-
fore the judgment was rendered, and he
was unable, after diligent inquiry, to
learn that fact until after the judgment
had been rendered. Coburn v. Currens,
1 Bush 242.
(6) Where his principal counsel was
prevented from attending the court by
sickness, the plaintiff was not entitled to
have the judgment against him vacated
on that ground, when he did not attend
the trial or make an effort to provide
other counsel. Landrum v. Farmer, 7
Bush 46. See Yowell v. Gaines, 2 Bush
211, and Triplett v. Scott, 5 Bush 81.
(7) A non-resident temporarily in this
State was sued by several parties, and
destroyed the copies of the summons
served on him. Afterward he employed
counsel and went to the clerk's office to
look at the suits, but the clerk could not
find one of them, and judgment In that
case went against him by default. The
defendant under the facts In the case
was held entitled to a new trial. McCall
V. Hitchcock, 9 Bush 66.
(8) That the defendant was of unsound
mind (although not judicially found to
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282
PROCEEDINGS TO REVERSE AND VACATE JUDGMENTS. [tITLB XIT
2. By a new trial granted in proceedings against defendants
constructively summoned, as is prescribed in chapter one of title^
ten.
3. For misprisions of the clerk.
4. For fraud practiced by the successful party in obtaining the-
judgment.
5. For erroneous proceedings against a person under disability^
except coverture, if the condition of such defendant do not appear
in the record, nor the error in the proceedings.
be), and in consequence thereof in-
competent to make an intelligent de-
fense to the action, is such a misfortune
within the meaning of sec. 579-7, Code
of 1854 (same as sec. 518-7 of this Code),
as will authorize the court to vacate or
modify a judgment against him. Bean
V. HofTendorfer, 84 Ky. 685.
(9) See further, notes 1-10, sec. 340.
(10) Clerical nisprisioo — see sec. 517
and notes thereto.
(11) Commoii law indcment— correction
of in equity. See sec. 17 and notes
thereto.
(12) Death of party before appeal A
judgment of the Court of Appeals revers-
ing a judgment can not be disregarded
because of the death of the appellant
before the appeal is taken. His death
after the judgment in the circuit court
and before appeal was prosecuted did
not take from the Court of Appeals the
right to entertain the appeal. His death,
if known, could have been taken advan-
tage of as provided in this section and
section 520. Spalding v. Wathen, 7 Bush
659.
(13) Fraud. Money collected under a
judgment at law fraudulently obtained
may be recovered back in equity without
awarding a new trial of the ordinary
action or setting aside the judgment
therein. Ellis v. Kelly, 8 Bush 621.
(14) A cause once properly adjudged
should never be reopened at the instance
of one defendant on the ground of im-
puted omissions of his attorney and
fraud of his codefendant. Dillingham
V. Mudd, 1 Bush 102; and see Baker v.
Grundy, 1 Duv. 281.
(15) As to setting aside judgment ren-
dered by consent of an attorney who had
no authority to consent, see Smith v..
Dixon, 3 Met. 438.
(16) The fact that there is neither
allegation, exhibits nor proof to sustain
the judgment does not authorize its-
vacation by the circuit court. AndersoD'
V. Anderson, 18 B. M. 95.
(17) lafants. An infant defendant is
entitled to a new trial under this section
when the condition of the infant does
not appear in the record, nor the error
in the proceedings. Jamison v. Petit, 6^
Bush 669.
(18) In an action to recover land, the
defendant died, and the suit was revived
against her children, some of whom
were under fourteen. The order of
revivor was served on those over, as wel!
as those under, fourteen ; the judgment
as to the infants under fourteen was void»
there being no proper service on them,
and they could maintain an action to re-
cover the land within twelve months after
arriving at age. Cox v. Story, 80 Ky. 64^
(19) See further, notes to section 391 r
and Richards v. Richards, 10 Bush 617-
(20) Judicial sales. The power of the
court to vacate an order confirming a
judicial sale after the expiration of the
term is not dependent upon the existence
of a valid defense to the cause of action
or claim sued on. The question as U>
the validity of the sale is distinct from
that in regard to the judgment under
which it is made, and there may exist
grounds for setting aside a sale which do-
not affect the judgment. Bean v. Hof-
fendorfer, 84 Ky. 685.
(21) Judgment confirming a report of
sale is a final judgment, which the court
may vacate for the causes mentioned in
this section. Kincaid v. Tutt, 88 Ky. 392^
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TITLE XIl] PROCEEDINGS TO REVERSE AND VACATE JUDGMENTS.
283
6. For the death of one of the parties before the judgment in
the action.
7. For unavoidable casualty or misfortune, preventing the party
from appearing or defending.
8. For errors in a judgment, shown by an infant within twelve
months after arriving at full age, as is prescribed in section three
hundred and ninety-one. ( When ordinary judgment may be modified
in equity^ sec. 17.)
(22) Unititioii. There is no limitation
except such as applies to the bringing of
actions to a proceeding to vacate a judg-
ment for fraud. Lawless v. Sevier, 5 R.
239.
(23) ManM woneii. *'The power ex-
isting under the Code of 1854 of courts
in which judgments have been rendered
to vacate or modify them after the expi-
ration of the term, upon the ground that
the defendant against whom erroneous
proceedings were had was a married
woman, has been taken away by the
present Ck)de, and now a defendant mar-
ried woman is limited to the same reme-
dies that persons not under disability
are." And this change applies to judg-
ments rendered while the Code of 1854
was in force. Bagby v. Champ, 83 Ky.
13.
(24) As a judgment against a married
woman may be valid, in a proceeding to
enforce such a judgment it should not
be held conclusively to be void ; but the
defendant may show that it is void.
Parsons v. Spencer, 83 Ky. 305 ; and see
Spencer v. Parsons, 89 Ky. 577.
(25) A personal judgment can not be
rendered against a married woman.
Agnew V. Williams, 1 Bush 4 ; Sweeney
v. Smith, 15 B. M. 325 ; but see now Ky.
Stat., sec. 2128.
(26) Motion for new trial is not necessary
by the party whose judgment has been
set aside in an action for a new trial be-
fore he can appeal. Reinicke v. Morse,
10 R. 767.
(27) New trial. See sees. 340-344 and
notes thereto for causes authorizing
granting of new trial, and rules of prac-
tice relating thereto.
(28) Nofl-resideiits — vacation of judg-
ments by ; see sec. 414 and notes thereto.
(29) Power of covrt over its jadKments*
The court has no power to correct its
judgment after the term, except for a
clerical misprision. Clark v. Anderson,
13 Bush 111 ; but it may and should dis-
regard its own order, if it is void. Jones
V. Com., 2 Duv. 81.
(30) The fact that there is no allega-
tion in the petition, and no proof to up-
hold the judgment, is not one of the
grounds for which a judgment can be
vacated. The power of the court to va-
cate its judgments and award new trials
after the term is confined strictly to the
causes mentioned in this section. An-
derson V. Anderson, 18 B. M. 95 ; Hocker
V. Gentry, 3 Met. 463 ; Scott v. Scott, 9
Bush 174.
(31) Rifht to new triaL After expiration
of term defendants who are summoned
and failed to answer are not entitled to &
new trial merely because of errors in
judgment that would authorize its re-
versal. Coffey V. Proctor, 14 R. 415.
(32) Tlie ««80C€e88fal party" does not
necessarily mean the one in whose favor
the judgment is rendered or who is en-
titled to enforce it, but applies as well to
the defendant in the judgment. Law-
less V. Sevier, 5 R. 239.
(33) Vacation after appeal A judgment
may be vacated for any of the causes
mentioned in this section, even after an
affirmance by the Cr>urt of Appeals, pro-
vided the error could not have been no-
ticed by the Court of Appeals. In such
cases the petition should not be filed un-
til the mandate of the Appellate Court
has been carried into effect. McLean v.
Nixon, 18 B. M. 708 ; Scott v. Scott,, 9
Bush 174; Speak v. Mattingly, 4 Bush 310.
(34) Judgment that has been affirmed
by Court of Appeals, or entered in pur-
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284
PROCEEDINGS TO REVERSE AND VACATE JUDGMENTS, [TITLE XU
§ 519 [s»o] Misprision corrected by motion — time to malce motion. The pro-
ceedings to correct misprisions of the clerk shall be by motion, upon
reasonable notice to the adverse party or his attorney in the action.
The motion to vacate a judgment because of its rendition before the
action regularly stood for trial can not be made after the expiration
of the first three days of the succeeding term.
§ 520 [Bti] Petition to vicate or modify indfment. The proceedings to
vacate or modify the judgment on the grounds mentioned in subsec-
tions four, five, six, seven and eight, of section five hundred and
eighteen, shall be by petition, verified by affidavit, setting forth the
judgment, the grounds to vacate or modify it, and the defense to the
action if the party applying was defendant. On the petition the
proceedings shall be the same as those in the action in which the
judgment was rendered.
§ 521 [Btsj Conditions on wliicli Judgment vacated. A judgment shall not
be vacated on motion or petition, until it be adjudged that there is a
valid defense to the action in which the judgment is rendered; or, if
the plaintiff seek its vacation, that there is a valid cause of action ;
suance to its mandate, may be vacated in
lower court, but not for errors that could
have been corrected on the appeal. Mad-
dox V. Williams, 87 Ky. 147.
(35) Void iadj^ment may be resisted in
any court, and not merely in court which
rendered it. The provisions authorizing
the modification and vacation of judg-
ments apply where a judgment is erro-
neous, but need not be resorted to when
judgment is void. Stevens v. Deering,
10 R. 393; Spencer v. Parsons, 89 Ky.
577.
§ 519. (1) Misprision— how corrected. A
misprision can not be corrected by an
action ; the proper mode is by motion in
the court rendering the judgment (Mc-
Cown V. Macklin, 7 Bush 308); and
notice should be given to all parties af-
fected by the correction (Oldham v. Bran-
non, 2 Met. 302) ; and the application
should be made in the court rendering
the judgment, and if it refuses to make
correction, an appeal may be taken.
Dodds V. Combs, 3 Met. 29.
(2) There is no restriction or limitation
as to the time in which a clerical mis-
prision, except a premature judgment,
shall be corrected. A misprision made
in 1856 was corrected in 1859. Smith v.
Mullins, 3 Met. 182; Lawless v. Seiver, 5
R. 239.
(3) See further, note 3 to sec. 517.
(4) Prenuitiire Jadgmeit Motion to cor-
rect must be made within the first three
days of the succeeding term. Wingfield
V. Cotton, 9 R. 275.
§ 520. ( 1 ) Jadj^meiit — racatioa of — ap-
peal. A judgment vacating a former
judgment is final and may be appealed
from ; and after getting a new trial the
defendant can not prosecute an appeal
from the original judgment against him.
McCall V. Hitchcock, 7 Bush 615 ; Mc-
Call V. Hitchcock, 9 Bush 66; Pague v.
O. «& K. R. R., 1 R. 399. A judgment of
the Court of Appeals can not be vacated
by a bill filed in that court. Beazley v.
Mershon, 6 Bush 424.
(2) Petition to vacate judgment for fraud
should state the particulars and specifj'
the manner in which judgment was ob-
tained by fraud. McCarty v. Payne, 5
R. 242.
§ 521. Practice. It is not necessary to
allege or prove a valid defense to the ac-
tion before a new trial can be granted in
an action where an issue had been formed
by the pleadings. Steel v. Seale, 4 R.
42; and see Layton v. Prewitt, 15 R. 827.
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TITLB Xn] PR0CEBDIN6S TO RBYERSE AND VACATE JUDGMENTS. 285
and, if a judgment be modified, all liens and securities obtained
under it shall be preserved to the modified judgment.
§ 522 [«•*! Qronnds relied oa to vacate to be first tried. The court may
decide upon the grounds to vacate or modify a judgment before
deciding upon the validity of the defense or cause of action.
§ 523 [»•«] Iii|aiictloa peadiof 'proceedings. The party seeking to vacate
Of modify a judgment may obtain an injunction suspending proceed-
ings on the whole or part thereof, upon its being rendered probable,
by aflBldavit or by exhibition of the record, that the party is entitled
to have such judgment or order vacated or modified. {What court
may grant injunction^ sec, iS86.)
§ 524 [6fte] Premature iadfineiit may be saspended. K the judgment was
rendered before the action stood for trial, the suspension may be
granted as provided in the last section, although no valid defense to
the action is shown ; and the court shall make such orders concern-
ing the executions to be issued on the judgment, or on any replevy
or forthcoming bond taken under it, as shall give to the defendant
the same rights of delay that he would have had if the judgment
had been rendered at the proper tim
§523. (1) laiaactiM peadiaf oietioii to
▼acate. In an action to vacate a judg-
ment directing a sale of land the plaint-
iff did not obtain an injunction to sus-
pend proceedings under the judgment;
and neither the plaintiff in the judg-
ment sought to be enjoined nor the com-
missioner who made the sale were liable
for any loss occasioned by the sale.
BroMm V. Hudson, 3 Bush 60.
(2) See further as to enjoining judg-
ments, sec. 285 and notes thereto.
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286 EVIDENCE — BY WHOM TO BE PRODUCED. [TITLB XIH
TITLE Xm.
EVIDENCE.
Part I. Production of byidbncb, 525.
II. Competency op witnesses, 605.
III. Perpetuation of evidence, 610.
PART 1.
PRODUCTION OP EVIDENCE.
Chapter I. Bt whom to be produced, 525.
II. Means of production, 528.
III. MoDB of taking testimony, 543.
CHAPTER I.
BY WHOM TO BE PRODUCED.
§ 525. Party holding affirmative must prove it.
§ 526. Burthen of proof — who has.
§ 527. Writings — when read as genuine.
§ 525 [•••] Party hddiaf ifffirmitive must prove it The party holding the
affirmative of an issue must produce the evidence to prove it. {And
introduce evidence firsts sec. 317^
§ 526 [5ST] Burthea off prooff — who his. The hurthen of proof in the
whole action lies on the party who would be defeated if no evidence
were given on either side.
f 526. (1) Borden of proof. See notes (5) The courts take judicial notice of
page 175. the names and official signatures of all
(2) Denial of ownership of note sued on officers charged with the performance of
places burden of proving averment on public duties — as clerks, sheriffs, con-
defendant. Vanbuskirk v. Levy, 3 Met. stables — and will presume that one who
134. signs his name and follows it by words or
(3) Hirer of property. In action against letters indicating a particular official
hirer of property to recover damages for character is such officer. Barret v. God-
injury to property while in his possession, shaw, 12 Bush 592.
burden is on defendant to account for (6) That a resident of this State who
injury. Craig v. Lee, 14 B. M. 119. has been absent and unheard of for seven
(4) Legal presnmptions. That acceptor years is.dead. Ky. Stat., sec. 1639; Bank
of bill had funds of drawer in his posses- v. Board of Trustees, 83 Ky. 219; that
sion. Turner v. Browder, 5 Bush, 216; person owning property in this State who
that party accepts deed which it is to his has not been heard of for seven years and
Interest to accept. Davenport v. Prewitt, whose heirs are unknown died without
9 B. M. 96; that officers perform their heirs. Ky. Stat., sec. 1609. That ohil-
duties in the manner required by law. dren are legitimate. DannelH v. Dannelli,
Long V. Gains, 4 Bush 353; Webber v. 4 Bush 51; Goss v. Froman, 89 Ky. 318.
Webber, 1 Met. 18 ; Lewis v. Quinker, 2 (7) Neclij^ence— common carrier. Where
Met. 284. a passenger on a train is injured by an
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TITLE XIU]
EVIDENCE — MEANS OP PRODUCTION.
287
§ 527 [«t8] Writiofs — ^whea read as f eaniae. A writing purporting to
have been made by a party, if referred to in and filed witb a plead-
ing of his adversary, may be read as genuine against him, unless he
deny its genuineness by affidavit before the trial is begun. {Party
may file any writing as exhibit^ sec, 128; what ^^ writing^* includes^ sec,
7S2; how made part of the record^ sec 128)
CHAPTER n.
MEANS OP PRODUCTION.
^ 528. Subpcena defined — subpoena duces tecum.
§ 529. Clerk to issue on request of either party.
§ 530. Commissioner of court may issue.
§ 531. Officer authorized to take depositions may issue.
§ 532. Subpoena — ^how executed.
§ 538. Subpoena — who may execute — acknowledgment of.
§ 534. Witness — when not bound to appear in person.
§ 535. Witness may be punished for contempt.
$ 536. Witness — when liable for costs and damages.
§ 537. Warrant of arrest to compel attendance.
accident occurring to the train the legal
presumption arises that the accident and
consequent injury were caused by the
negligence of the carrier. L. &, N. R. R.
V. Ritter, 85 Ky. 368.
(8) Nefliceace. Burden of proof is on
I)arty seeking to recover damages for
injury caused by. P. & M. R. R. v.
Hoehl, 12 Bush 41 ; and as to contribu-
tory negligence burden is on party relying
•on it as a defense. 12 Bush 41 ; L. & N.
:R. R. v. Copas, 95 Ky. 460.
(9) Rjeceipt in full of amount due or in
final settlement \^ prima facte evidence of
payment, and burden ison party disputing
its correctness. Robinson v.Williamson,
7 Bush 604.
(10) Settiemeiits of fiduciaries with the
county court are prima facie correct. Ky.
8tet., sec. 1067.
(11) Sound mind. Every person is pre-
sumed to be of sound mind. Hawkins
V. Grimes, 13 B. M. 257; Flood v. Pragoflf,
79 Ky. 607.
§527. (1) Writioj^s filed 08 evidence. A
party is not confined in his evidence to
such writings as he has relied on in his
pleadings. The only benefit which a
party derives from filing with his plead-
ing writings relied on as evidence is, that,
unless denied as provided in this section,
they may be read as genuine. Haney v.
Tempest, 3 Met. 96 ; Barrett v. Coburn,
3 Met. 511 ; Wells v. Lewis, 4 Met.
269.
(2) A paper referred to In a pleading
and not with it, or otherwise filed so
as to allow the adverse party an op-
portunity to inspect it before trial,
can not be read without proof of
its execution. Gentry v. Doolin, 1
Bush 1.
(3) The provisions of this section ap-
ply to defendants constructively sum-
moned. Buckner v. Bush, 1 Duv. 394 ;
and see note 1 to sec. 409.
(4) This section applies only to writ-
ings that have been executed by the
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288 EVIDENCE — MEANS OF PRODUCTION. [TITLE XIH
g 588. Punishment imposed for contempt.
§ 539. Warrant of commitment or arrest
§ 540. Prisoner produced for oral examination.
§ 541. Officer to retain control of prisoner.
§ 542. Witness can not be sued out of his county.
§ 528 [5t»] Subpoena defined — subpoeni duces tecum — court may direct issnal off.
The process by which the attendance of a witness is required is a sub-
poena. It is a writ directed to the sheriff, requiring him to summon
the person named therein to attend at a particular time and place, to
testify as a witness. It may, when the court or the judge thereof so
directs, require the witness to bring with him any book, writing or
other thing, under his control, which he is bound by law to produce
in evidence. {Form of^ page 64S; when may issue on holiday^ sec, 665)
§ 529 [5»oi Cleric to issue on request off either party. If the attendance of
the witness be required before the court, or on the trial of an issue
ordered by it, the subpoena shall be issued by the clerk on the request
of either party.
§ 530. Commissioner off court may issue. K the attendance of a witness
be required before a commissioner of the court, the subpoena shall be
issued by the commissioner.
§ 531 [B»i] Offfficer authorized to take depositions may issue. If the attend-
ance of the witness be required for the purpose of giving his deposi-
tion, the subpoena shall be issued by an officer authorized to take the
deposition.
§ 532 [8»ti Subpoena — how executed. The service of a subpoena is made
by showing the original and delivering a copy or a ticket containing
the substance thereof to the witness.
§ 533 [Bts] Subpoena — who may execute — acknowledj^nent off. A subpoena
may be served by any officer by whom a summons might be served,
and his return thereon shall be proof of the service. It may also be
served by any person of full age — whose affidavit indorsed thereon
shall be proof of the service ; or the witness may acknowledge serv-
ice in writing on the subpoena. {What officers may serve, sec. 667;
may be served on holiday, sec. 665)
§ 534 iB»«] Witness — when not bound to appear. Subject to the provisions
of section five hundred and fifty -six, a witness shall not be compelled
to attend for examination upon the trial of a civil action, if he
resides more than twenty miles from the place where the court sits
in which the action is pending ; nor to attend to give his deposition
party against whom it is proposed to §528. Books and papers — prodnctioa off.
read them. Long v. Kerrigan, 13 E. See notes to sec. 605, and Marion Nat.
483. Bank v. Abell, 88 Ky. 428.
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TITLE Xin] EVIDENCE — MEANS OF PRODUCTION. 289
out of the county in which he resides, or in which the subpoena is
served on him.
§ 5^ [•••] Witaess may be punished for contempt Disobedience of a sub-
pcena ; intentional evasion of a service of it, by concealment, or
otherwise; concealment or removal of a minor to prevent service of a
subpoena upon him, or preventing his attendance as a witness, by a
person having control of him ; or a refusal to be sworn or to answer
as a witness, or to subscribe an affidavit or deposition when lawfully
ordered, may be punished as a contempt of the court or officer by
whom the attendance or testimony of the witness is required.
§ 536 [5»t] Witness — ^wlien liable for costs and damages. When a witness is
brought before a court for contempt by disobedience of a subpoena,
and it is shown that the legal fees for travel and one day's attendance
were paid or tendered to him when the subpoena was served, and that
he failed to attend without reasonable cause, the court may sum-
marily order him to pay the party, on whose behalf he was summoned,
the costs occasioned to him by the disobedience of the subpoena, not
exceeding twenty dollars; and he shall also be liable for any damages
occasioned by the failure to attend. ( Witness feeSy see Ky. StaL^ sec.
17S4.)
§ 5J7 rB»T] Warrant off arrest to compel attendance. K a witness fail to
attend in obedience to a subpoena, the court or officer before whom his
attendance was required may issue a warrant for arresting and bring-
ing him before the court or officer, at a time and place to be fixed in
the warrant, to give his testimony^ and answer for the contempt. If
the warrant be not for immediately bringing the witness before the
court or officer, a sum shall be fixed in which the witness may give
bond, with surety, for his appearance ; and, if no sum be fixed by the
court or officer, it shall be one hundred dollars. (Form of icarrant
page 64B.)
§ 538 [«»•*•»»] i^nishment imposed ffor contempt The punishment for the
contempt mentioned in section five hundred and thirty-five shall be
by fine, not exceeding thirty dollars, and imprisonment, not exceed-
ing twenty-four hours; but an officer imposing such punishment shall
promptly report his action, and the reasons therefor, to the court in
which the action is pending ; and the court may vacate or modify the
order of the officer, and shall render judgment for the fine imposed
by the officer, or so much thereof as is approved by the court. If a
witness refuse to testify, or to be sworn, or to give a deposition, he
shall be imprisoned so long as he refuses ; and, if the court finally
adjourns before he submits, he shall remain in prison until the next
(19)
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290 BVIDBNOB — MEANS OF PRODUCTION, [tITLB XIII
term, or until he testifies before an officer who is authorized to take
his testimony. The final disposition of the case in which he so refuses
shall discharge him from imprisonment.
§ 5J9 [too] Warrant off cominitnient or arrest Every warrant of commit-
ment to prison issued by a court or officer, pursuant to this chapter,
must specify particularly the cause of the commitment; and, if it be
for refusing to answer a question, such question must be stated in the
warrant. And every warrant to arrest or commit a witness must be
directed to the sheriff of the county where he may be, and be exe-
cuted in the same manner as process from the court.
§ 540 (>oi] Prisoner prodnced for oral examination. A person confined in
any jail, work-house or house of correction, in this State, may, by
order of court, be required to be produced for oral examination in
the county where he is confined; but in all other cases his testimony
must be taken by deposition.
§ 541 [eosi Officer to retain control of prisoner. While his deposition is
being taken, he shall remain under the control of the officer having
him in custody, who shall afford reasonable facilities for the taking
of the deposition.
§ 542 [tos] Witness can not be sued oat of his county. A witness shall not
be liable to be sued in a county in which he does not reside, by being
served with a summons in such county while going, returning or
attending, m obedience to a subpcena. {And see further sees. 81^ 666.)
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TITLB Xm] AFFIDAVIT. 291
CHAPTER m.
MODE OP TAKING TESTIMONY.
AbTIOLB 1. AFFIDAyiT, 543.
2. Deposition, 552.
3. Gbnbbal bulbs of bxamination, 59d.
ARTICLE 1.
AFFIDAVIT.
§ 543. Testimony — modes of taking.
§ 544. Affidavit defined.
§ 545. Deposition defined.
% 546. Oral examination defined.
§ 547. Purposes for which affidavit may be used.
§ 548. Eixamination of person obtaining provisional remedy.
§ 549. Affidavit — before whom to be made.
g 550. Affidavit — ^who may make.
§ 551. Affidavit— how made.
§ 543 [eM] Testioiooy — modes of iMag. The testimony of witnesses
may be taken by affidavit, deposition or oral examination.
§ 544 [eo6] Affidavit defined. An affidavit is a written declaration,
under oath, made without notice to the adverse party.
§ 545 [tot] Deposition defiled. A deposition is a written declaration,
imder oath, made upon notice to the adverse party, for the purpose
of enabling him to attend and cross-examine; or, upon written
interrogatories.
§ 546 [SOT] Oral examination defined. An oral examination is an exami-
nation in the presence of the tribunal which is to decide the fact or
act upon it, the testimony being heard by the tribunal from the lips
of the witness.
§ 547 [sot] Pnrposes for wliicli affidavit may be used. An affidavit may be
read to verify a pleading ; to prove the service of a summons, notice
or other process in an action ; to obtain a provisional remedy, an
examination of a witness, a stay of proceedings or a warning order;
or, upon a motion ; and in any other case permitted by law.
§544. Affidavit most be subscribed by §547. Affidavits— power of commis-
affiant and sworn to. Simms v. Simms, sioner. The master in chancery has in-
88 Ky. 642 ; but it is not essential that herent power to take and report testi-
the name of the affiant should appear in mony concerning matters of fact refer-
body of affidavit, it is sufficient if he red to him by the court, and may ex-
deecribes himself as "the affiant." Yoor- amine witnesses on oath and certify their
hels T. Elting, 15 R. 161 ; nor does omis- statements, not as depositions, but as
sion of immaterial word in jurat invali* facts constituting the basis of bis report,
date it. Clark v. Miller, 88 Ky. 108. Taylor v. Young, 2 Bush 428.
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292 AFFIDAVIT. [title XIH
§ 548 [609] Exifnimtioa off persoo obtoioiof proylskmal remedy. If a provis-
ional remedy be granted upon an affidavit, and a motion be made to
discharge or vacate it, the party making the motion may, by written
notice to the adverse party, or by order or rule of court, require the
production of the affiant for cross-examination; whereupon, the
party notified shall produce the affiant, within ten days, before an
officer authorized to take depositions, at a time and place of which
he shall give the adverse party three days' notice. If the affiant be
not produced, his affidavit shall be suppressed; and, if produced, he
may be examined by either party.
§ 549 ceio] Affffidivit — beffore whom to be made. An affidavit may be made —
1. In this State, before a judge of a court, a justice of the peace,
notary public, examiner, clerk of a court or master-commissioner.
2. Out of this State, before any officer or person who may be
authorized, pursuant to section five hundred and sixty-four, to take
depositions.
§ 550 [sii] Afffidavit — who may make. 1. Any affidavit which this Code
requires or authorizes a party to make may, unless otherwise expressed,
be made by his agent or attorney, if he be absent from the county.
2. [If an action be brought by two or more plaintiffs, an affidavit
for a warning order may be made by any one of them who may be
in the county : Provided^ That the affidavit shall state the affiant's
belief that the other plaintiffs who reside in the county are also
ignorant of such of the facts as are unknown to the affiant.]
3. Every other affidavit in behalf of two or more parties united
in interest may, unless otherwise expressed, be made by one of them,
subject, with reference to pleadings, to subsection four of section
one hundred and seventeen.
4. No affidavit in behalf of two or more parties united in inter-
est shall, unless otherwise expressed, be made by an agent or attor-
ney, unless all of them be absent from the county.
5. The affidavit of an agent or attorney must state the absence
from the county of the party or parties for whom it is made, and
the fact that the affiant is agent or attorney. ( Words in brackets
amendment of 1880.)
§ 55A. Agent— affidavit of. The state- tomey and that the principal is absent
ment in the affidavit of an agent that he from the county, and if there be more
believes the facts sworn to are true is suf- than one, that all are absent. Pool v.
flclent. Franklin Institution v. Bank of Webster, 3 Met. 278 ; Anderson v. Sut-
Wheeling, 1 Met. 156; but the affidavit ton, 2 Duv. 480; 14 B. M. 517.
must state that the affiant is agent or at-
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TITLE Xin] DEPOSITIONS — WHEN TO BE USED. 293
§ 551 [sisj Affidavit — how made. Every affidavit shall be subscribed by
the affiant; and the certificate of the officer or person before whom
it is made shall be written separately, following the signature of the
affiant, and shall be proof of the time and manner of the affidavit
being made.
ARTICLE 2.
DEPOSmOlffS.
SuBDiYisiON 1. When to be used, 552.
2. Officers authorized to take, 559.
3. Manner of taking, 565.
4. Exceptions to, 585.
5. Depositions to be used in other States, 591.
SUBDIVISION 1.
WHEN TO BE USED.
§ 552. Depositions — when may be read as evidence.
§ 553. Retaking witliout leave except in rebuttal forbidden.
§ 554. Witnesses whose depositions may be read in any action.
§ 555. Witness whose deposition may be read not required to attend court.
§ 556. Witness — when court may compel attendance of.
§ 557. Depositions — when parties may begin taking.
§ 558. Deposition of witness de bene esse.
§ 552 [•!*] Depositions — ^when may Iw read as evidence — proof off exhibits — oral
testimony. 1. Depositions or certified copies thereof, if they be lost, may
be used upon the trial of any issue of fact in an equitable action,
unless such issue be transferred pursuant to title two, and upon the
trial of any issue in an ordinary action, if such issue be transferred
pursuant to said title ; and upon any motion, or upon a reference to
a commissioner of any question, relating to such issue.
f 551. Affidavit most be subscribed by be read by the adverse party, but if it
affiaot Sims v. Sims, 88 Ky. 642 ; and impeaches the character of a witness,
see note to sec. 544. who is not assailed on the trial, the party
f 552. (1) Oral proof on trial of issue in whose witness it attaclcs can not read it.
equity. Oral testimony may be intro- Sullivan v. Norris, 8 Bush 519.
duced on the trial by jury of an issue in (3) If a party takes a deposition and
an equitable action. McMakin v. Strat- declines to read it, the adverse party may
ton, 82 Ky. 226; Saving Bank v. Benton, read such deposition, although the wit-
2 Met. 240. ness would have been incompetent if
(2) Practice. Party taking deposition oflferedby him. Weilv.Silverstone,6Bush
declines to read it upon the trial, it may 698 ; and see Crabb v. Larkin, 9 Bush 154.
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294 DEPOSITIONS — WHEN TO BE USED. [tITLB XHI
2. Subject to the provisions of section seven hundred and eight,
upon any issue of fact which arises upon the pleadings in an equi-
table action, unless such issue be transferred pursuant to title two,
or upon the pleadings in an ordinary action, if such issue be trans-
ferred pursuant to said title, proof must be made by depositions or
exhibits : Provided^ That the genuineness of exhibits may be
proved orally in court as heretofore allowed by law, and that the
court may require oral testimony upon a trial by jury. {Interroga-
tories may be read as deposition^ sees. 140 j Jf^Jf, 146 ; when exhibits
constitute part of record^ sec, 128.)
§ 553. Retakiof without leave except in rebuttal fforbiddea. The deposition
of a witness shall not be retaken without leave of the court [except
in rebuttal]. {Words in brackets^ act 1886.)
§ 554 [ei4] Witnesses whose deposition may be read in any action. A deposi-
tion may be read upon the trial of an issue in any action, if, at the
time of the trial, the witness reside twenty miles or more from the
place where the court sits in which the action is pending; or be
absent from this State; or be its Governor, secretary, register,
auditor or treasurer ; or a judge or clerk of a court ; or a postmaster,
or a president, cashier, teller or clerk of a bank ; or a practicing phy-
sician, surgeon or lawyer ; or a keeper, officer or guard of the pen-
itentiary ; or be dead ; or be of unsound mind, having been of sound
mind when his deposition was taken ; or be prevented from attend-
ing the trial by infirmity or imprisonment; or be in the military
service of the United States or of this State.
§ 555 [619] Witnesses — when bound to attend court A witness whose dep-
osition might be used shall not be compelled to attend in court for
oral examination, unless he failed, when duly summoned, to give his
deposition. {When deposition may be read,, sees. 6S4y 654')
§ 556 [tie] Witness — court may compel personal attendance. Upon the affi-
davit of a party, and the written statement of his attorney, that the
testimony of a witness is important, and that the just and proper
effect of his testimony can not in a reasonable degree be obtained
without an oral examination in court, the court may, at its discretion,
order the personal attendance of the witness to be coerced, although
such witness may otherwise be exempt from personal attendance by
the provisions of this Code.
§ 553. Party who retakes deposltioa may, side within twenty miles of the place of
if he has obtained permission to retake, trial are incompetent and should not be
read both the depositions. Deneal v. read on trial. Couadeau v. American Ac-
Allensworth, 2 J. J. M. 446. cident Co., 95 Ky. 2^ ; Gregg v. Wood,
§ 554. Depositions of witnesses who re- 3 R. 526.
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TITLE Xni] OFFICERS AUTHORIZED TO TAKE DEPOSITIONS. 295
§ 557 [SIT] DeposHloiis — when parties may bei:lii takiof . The plaintiff may
commence taking depositions immediately after the service of the
summons ; and the defendant, immediately after filing his answer.
§ 558 [Sit] Depositioiis de bene esse. A party may take the deposition of
any witness de bene esse, and it may be used under the circumstances
prescribed in section five hundred and fifty-four.
SUBDIVISION 2.
OFFICERS AUTHORIZED TO TAKE DEPOSITIONS.
§ 559. Examiners to be appointed by circuit judges.
§ 560. Examiner's office at county seat.
g 561. Oaths may be administered by. ,
§ 563. Depositions in State — who may take.
§ 563. Officer not required to leave office to take.
§ 564. Depositions out of State — who may take.
§ 559 [si^i Bxamiaers 1o be ippoiated by circnit iadifes. The circuit judges
shall appoint two or more examiners in each county of their respect-
ive districts, who, before acting, shall be sworn in open court to dis-
charge faithfully and impartially the duties of their office ; and who
shall hold their ofiices at the pleasure of the court. {Fees of examin-
ers^ Ky. Stat., sec. 17il.)
§ 5M [eso] Bxiininer's office it county seat. An examiner's office shall be
kept in or near the county seat ; and, if there be more than one, the
others at such place as the court may direct.
§ 561 [ttss] Oaths may be administered by. Examiners may administer
oaths and give certificates thereof in all cases in which justices of the
peace may do so.
§ 562 [ess to 6S6] Depositions in State — who may talce. Depositions taken in
this State, to be used in its courts, shall be taken before an examiner,
a judge or clerk of a court, a justice of the peace, or a notary public;
and the laws relating to examiners shall apply to each of these
officers.
§ 563 [ssT] Officer not required to leave office to talce. It shall not be the
duty of an officer to go out of his office to take depositions, but he
may take them at any place in the county for which he is appointed.
§ 558. Depositioa can not be read unless to attend when his deposition was taken,
it appears from proof offered at the trial Gillespie v. Gillespie, 2 Bibb 89 ; Ails v.
that witness is unable to be present at Sublit, 3 Bibb 204; and see Taylor v.
trial although he may not have been able Whiting, 4 Mon. 364.
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296 MANNBR OF TAKING DEPOSITIONS. [TITLE XHI
§ 5M [6S81 Depositioas oat off State — who nay take. Depositions may be
taken, out of this State, before a commissioner appointed by the
Governor thereof; or before any other person empowered by a com-
mission directed to him by consent of the parties or by order of the
court; or before a judge of a court, a justice of the peace, mayor of
a city, or notary public.
SUBDIVISION 3.
MANNER OF TAKING DBPOSmONS.
§ 565. Taken upon notice or interrogatories.
§ 566. Notice to take — requisites of.
§ 567. Reasonable notice — what deemed.
§ 568. Adjournment to another time and place.
§ 569. Adjournment to another place — cause for.
§ 570. Causes for adjournment to be proven.
§ 571. Interrogatories — when party may require taken on.
§ 572. Interrogatories— taken on by consent.
§ 573. Interrogatories— court may require taken on. •
§ 574. Interrogatories — when must be taken on.
§ 575. Interrogatories — filing, caption, notice, duty of clerk.
§ 576. Commission to take on.
§ 577. Commission and interrogatories— duty of clerk.
§ 578. Subpoena for witnesses— officer may issue.
§ 579. Powers of officer taking.
§ 580. Statements of witness to be written.
§ 581. Party nor attorney allowed at taking.
§ 582. Certificate of officer— what it shall state;
§ 583. Transmission to clerk^^uty of clerk.
§ 584. Fees of officers.
§ 545 [•99] Taken npon notice or interrofatories. Depositions shall be taken
upon reasonable notice to the adverse party or upon interrogatories.
§ 566 [tso] Notice to take — requisites of. The notice must be in writing,
signed by the party giving it, or his attorney ; must be addressed to
§ 565. (1) Notice to infants. Deposi- § 566. Notice to take on a certain day,
tions to be read against non-resident and if not then taken, to be taken on a
infants may be taken upon notice to the subsequent day, is good. Moore v. Hum-
corresponding attorney appointed for phreys, 2 J. J. M. 54.
them. C. & L. R. R. Co. v. Bowler, 9 (3) Notice was given in Lexington, Ky.,
Bush 468. that depositions would be taken at Nat-
(2) Waiver. Where a witness has been chez on the 15th of Januar>% or if not
cross-examined, an objection for want of then on the 16th, or if not then on the
notice will be unavailing. Talbot v. 17th, or if not then on the 18th, and on
Pierce, 14 B. M. 195 ; and so if adverse the 18th the deposition was taken and
party is present when it is taken. Tal- the notice held sufficient. Thomas v
bot v. Bradford, 2 Bibb 316. Davis, 7 B. M. 227.
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TITLE Xin] MANNER OF TAKING DEPOSITIONS. 297
the party on whom it is to be served, and specify the time and place
of taking the deposition, and the action or proceeding in which it is
to be used ; and must also state the name of the proposed witness, if
the deposition be taken out of the county where the court sits, unless
it be taken to prove a law, custom or usage. {Form of notice^ page
644: how and by whom served^ sees. 6^6 j 62^; on whom to he served^
sees. 626 to 638)
§ 567 [ssti ReasoaaUe notice — ^what deemed. A notice shall be deemed
reasonable that allows one day for each thirty miles which the party
will have to travel and one day for preparation if the distance be less
than one hundred miles, and two days if it be more. If the distance
exceed fifty miles and the usual mode of travel for the whole or a
part of the distance be by steamboat, railroad cars or other public
conveyance, the time ordinarily required by such mode of travel,
with the days given for preparation, shall be deemed sufficient in the
notice. K the distance be less than thirty miles, a notice which gives
to the party a reasonable opportunity to be present shall be sufficient.
§ 568 [tss] Adjoumoient to mother time and place. If a notice be given to
take a deposition, and the attendance of the witness can not be pro-
cured at the place specified in the notice, owing to his infirmity or
imprisonment, the taking of the deposition may be adjourned to the
next day, and to some other convenient place ; and a written notice
of the adjournment shall be conspicuously posted, at the place speci-
fied in the notice, before noon of the day on which the deposition
was to have been taken.
§ 569 [•>«] Adjournment to another place — cause for. If a notice be given to
take a deposition, but from any cause not mentioned in the last
section the deposition can not be taken at the place specified in the
(3) Only such certainty in notice as to (2) Party should be allowed a reason-
place where deposition will be taken is able time to notify or find his attorney,
required as will enable party by reason- Greer v. Ludlow, 7 R. 290.
able inquir}' to ascertain place and attend §568. Adjoarnment When a deposi-
taking. Barbour v. Whitlock, 4 Mon. tion is commenced too late in the day to
180 ; Taylor v. Bate, 4 Dana 198 ; Crozier finish it, and the witness can not attend
V. Gano, 1 Bibb 257; Overstreet v. the next day, other depositions may be
Phillips, 1 Litt. 130. taken the next day, and the deposition
§567. (1) Notice— what is reasonable, of the first witness finished on the next
Notice to take depositions at the same following day, proper notice of the ad-
time that the adverse party is taking journment being given. Jarboev. Colvin,
depositions in the same case is not suffi- 4 Bush 70; and see Price v. Caperton, 1
cient, nor does it remove the objection Duv. 207, for statement of fact showing
that the party might have obtained leave that an examiner properly adjourned the
to cross-examine, and thus have com- taking of a deposition to another time
pleted the depositions before the case was and place on account of Inability of
submitted. Collins v. Richart, 14 Bush 621. witness to attend.
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298 MANNER OF TAKING DEPOSITIONS. [TITLE XIII
notice, an adjournment to the nearest convenient place shall be made;
and a written notice of the adjournment shall be conspicuously posted^
at the place specified in the notice, for one hour before the deposition
is commenced at the place to which the adjournment is made.
§ 570 [6s«] Causes for idjowniiig to be proveo. 1. A deposition taken pur-
suant to section five hundred and sixty-eight shall be accompanied
by the affidavit of the party taking it, or of his attorney, stating the
cause of the non-attendance of the witness, and by the officer's cer-
tificate that notice of the adjournment was posted as is required by
said section.
2. A deposition taken pursuant to section five hundred and
sixty-nine shall be accompanied by the officer's certificate stating
the cause of the adjournment and that notice thereof was posted
as is required by said section.
§ 571 [es6] Interrofitories — wbeo iiarty may require takeu on. If more than
three days' notice to take a deposition be required by section five
hundred and sixty-seven, the party to whom the notice is given may,
by notice to the adverse party or his attorney, served on the day
when the first notice is given, or on the following day, require the
deposition to be taken upon interrogatories.
§ 572 [esT] Interrogatories — talcen on by consent. Depositions may be
taken upon interrogatories with the consent of parties who are free
from disability ; or the consent of the guardian, curator, committee
or husband of a party who is under disability.
§ 573. Interrofatories— court may require taken on. The court, on motion
of either party, may permit or require depositions to be taken upon
interrogatories —
1. K the ascertainment of a fact or the stating of an account be
referred to a commissioner.
2. If any of the parties against whom a deposition is to be read
be defendants who may have been constructively summoned and
have not appeared ; or be under any disability other than cov-
erture, or infancy and coverture combined.
3. If the parties against whom the deposition is to be read be
numerous, and have not appointed an agent or attorney residing
in this State known to the party taking the deposition.
§ 574. Interroi:atories — when must be taken on— exception. If all of the
parties against whom a deposition is to be read have been construct-
ively summoned and have not appeared, or be defendants and under
disability, other than coverture or infancy and coverture combined,
the deposition must be taken upon interrogatories. pExcept in
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TITLB Xin] MANNER OF TAKING DBPOSITIONS. 299
actions and proceedings for divorce and alimony and the custody of
children when involved in such a suit.] ( Words in brackets added by
act 1886.)
§ 575 [tss] ?^\Bg and notice of— caption — duty of clerk. 1. In the cases men-
tioned in sections five hundred and seventy-one, five hundred and
seventy-three and five hundred and seventy-four, the interrogatories
shall be filed in the clerk's office ; the caption thereof shall state the
name and place of residence of the witness ; notice of the filing
thereof shall be given pursuant to sections six hundred and twenty-
four to six hundred and thirty-three, both inclusive, and shall *be
filed in the office of the clerk ; and until a commission to take the
deposition be issued, the party notified may file cross-interrogatories*
2. K no cross-interrogatories be filed, the clerk shall file the
following:
a. What is your age, occupation and place of residence ?
6. Are all of your statements in the foregoing answers made
from your personal knowledge ? K not, which of them are made
from information or belief, and what is the source of your infor-
mation, or the foundation of your belief?
c. Have you any interest in this action direct or indirect? If
any, what is it?
d. Have you stated all you know concerning this action? If
not, state what you have omitted.
§ 576 [tst] Commission to take on. No commission shall issue until ten
days shall have elapsed after the giving of notice pursuant to section
five hundred and seventy -five, unless cross-interrogatories be sooner
filed.
§ 577 [Moj Commission and interro^fatories — doty of clerk. After the inter-
rogatories have remained the due length of time in the clerk's office,
one or more commissions, at the request of the party, shall be issued
by the clerk, with copies of the interrogatories and cross-interroga-
tories annexed, authorizing the person to whom the commission is
directed to examine witnesses on them; and the commission may be
directed generally " to any officer authorized to take depositions iu
or out of this State." {Form of commission, page 646)
§ 578 :<«ii Subpoena for witnesses— officer may issne. Upon filing with an
officer authorized to take depositions a notice duly served, or a com-
mission with interrogatories to take a deposition, it shall be the duty
of the officer to issue his subpoena requiring the witness, whose dep-
osition is desired, to appear, at a time and place to be named in the
subpoena, for examination. {Form of subpcena^ page 644^; officer mag
have witness arrested and punished for contempt, sees. 635 to 540.)
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800 MANNER OF TAKING DEPOSITIONS. [tITLB XIH
§ 579 [•*«] Powert of officer taking:. The officer before whom the depo-
sition is taken shall decide, summarily, all objections to questions ;
or, if in doubt, shall permit the questions to be answered, noting the
objection in the deposition. He shall have power to prevent insult-
ing questions being put to a witness, and to stop a course of interro-
gation pursued unreasonably long and for mere vexation and delay.
§ 580 [MS] SUtemeots of witness to lie written. The statements of the wit-
ness shall be written by him in the presence of the officer taking the
deposition, or by the officer in the presence of the witness.
§ 581 [•««] Party nor attorney allowed at taking:. K a deposition be taken
upon interrogatories, neither party nor his agent or attorney shall be
present at the examination of the witness.
§ 582 [t^s] Certificate of officer— what It shall state. The officer's certificate
shall state when and where the deposition was taken ; that the wit-
ness was duly sworn before giving it, and that it was written and
subscribed by him in the officer's presence, or was written by the
officer in the presence of the witness and read to and subscribed by
the witness in presence of the officer; and shall also state whether or
not either of the parties, and, if either, which of them, was present
in person or by agent or attorney during examination of the witness.
{Form of caption and certificate^ page 644.)
§ 583 [•«•] Transmission to clerk— doty of clerk. Excepting depositions
taken by a guardian ad litem and by persons suing in forma pauperis
— which shall be delivered or sent without prepayment of fees or
postage — the officer, upon payment of his fees and necessary postage,
shall deliver the depositions to the clerk of the court in which, or
the justice before whom, the action is pending; or shall send them by
mail or by private conveyance, in a sealed envelope, directed to such
clerk or justice, with an indorsement showing the style of the action
and that it contains depositions ; but, if sent by private conveyance,
the person by whom they are sent must make oath before the clerk
or justice to whom they §.re delivered that they have not been opened
§ 582. (1) Certificate of officer. No al- must be supported by clear and satisfac-
teration or amendment of the certificate tory evidence. Daniel v. Toney, 2 Met.
of the officer taking a deposition after the 523.
deposition has been filed is allowable § 583. (1) Delivery to clerk. A deposi-
without the previous authority of the tion taken for a party and by him de-
court entered of record. Hall v. Renfro, livered to the clerk, although sealed in
3 Met. 51. an envelope, was properly rejected.
(2) Can the correctness of the certifl- Breeding v. Stamper, 18 B. M. 175.
cate of an officer of another State be con- (2) Deposition slioald not be rejected
tradicted by evidence on exceptions to because by oversight of clerk it was not
the depositions? If so, the exception marked filed. Burns v. Ingersoll, 6 R. 737.
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TITLE XIIl]
EXCEPTIONS TO DEPOSITIONS.
801
by him or any person, in their transit. The clerk or justice shall
indorse on the depositions the time and mode of their reception,
and the affidavit, if any, of the person delivering them.
§ 584 [MS] Pees of officers. For issuing a subpoena or warrant of
arrest, and for summoning or arresting a witness, the same fees shall
be paid as are allowed to clerks and sheriffs for similar services.
{Fees ofclerkSy Ky. Stat.y sec. 1720; sheriff, Ky. Stat., sec. 1726.)
SUBDIVISION 4.
BXCEPTI0N8 TO DEPOSITIONS.
§ 585. Depositions must be filed before trial.
§ 586. Exceptions to — how taken.
§ 587. Exception— when to be made.
§ 588. Court to pass on before trial— correction of certificate.
§ 589. Errors of court waived unless excepted to.
§ 590. Swearing of jury commencement of trial.
§ 585 [tM] Defiositioo mast be filed before trial. No deposition shall be
read on a trial, unless, before the commencement thereof, it be filed
with the papers of the case.
§ 586 [150] Exceptions to — how talceo. Exceptions to depositions shall be
in writing, specifying the grounds of objection, filed with the papers
of the case, and noted on the record.
§585. (1) Depositions — Afalnst wilom
read. Depositions can not be read against
a party who was made defendant by an
amended petition filed after the deposi-
tions were taken. Depositions taken in
one suit may be read in another when it
appears that they were taken between the
same parties, or persons claiming in pri-
vity with them. Kerrv.Gibson,8Bu8hl29.
(2) When a party takes a deposition
and files it, and declines to read it, the
adverse party has the right to read the
deposition. Musick v. Ray, 3 Met. 427 ;
Weil V. Silverstone, 6 Bush 608; Sulli-
van V. Norris, 8 Bush 519.
(3) Practice— filing. Party taking depo-
sition can not make it a part of record
unless he files it or lodges it with clerk
for filing before case is submitted. Long
v. Kerrigan, 13 R. 433 ; but where depo-
sitions have been lodged in the case and
are considered by the chancellor they
will be considered on appeal and should
be made part of record, although clerk
has failed to note or indorse them as filed.
Long v. Kerrigan, 15 R. 65.
(4) Record. As to how depositions
made part of record on appeal, see notes
5-8 to sec. 335.
§ 586. (1) Exceptions to depositions are
deemed waived when the record does not
show they were acted on in lower court.
Patterson v. Hansel, 4 Bush 654 ; Lewis
v. Wright, 3 Bush 311.
(2) Although a party may not object
to the reading of a deposition on the first
trial he does not thereby waive his right
to object at the next trial. Chapize v.
Bane, 1 Bibb 612; and see Kincuid v.
Kincaid, 1 J. J. M. 100.
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302 EXCEPTIONS TO DEPOSITIONS. [tITLB XHI
§ 587 [MX] Exception — ^when to be nade. No exception, other than to
the competency of the witness, or to the relevancy or competency of
the testimony, shall be regarded, unless it be filed and noted on the
record before the commencement of the trial and before or during
the first term of the court after the filing of the deposition.
2. Exceptions to the competency of the witness, or to the com-
petency or relevancy of the testimony, may be made before or
during the trial.
§ 588 [•ss] Court to pass oo before trial — correction of certificate. The court,
on the motion of either party, shall decide upon exceptions, other
than those for incompetency or irrelevancy, before the commence-
ment of the trial ; and, if the examining oflicer's certificate be defect-
ive, whether exceptions have been sustained or filed or not —
1. The party for whom the deposition was taken, upon tender-
ing to the clerk or justice having custody of the deposition
money enough, if any be necessary, to pay postage upon it to and
from ihe examining officer, may require the clerk or justice to
deliver the deposition, or mail it, under seal, with half of the sum
of money so tendered, to the examining officer.
2. The clerk or justice shall indorse upon the deposition the
time of delivering or mailing it, and the examining officer shall
indorse upon it the time and mode of its reception.
g 587. (1) EzceptiMi. An exception (4) On the trial of the case the de-
that does not go to the competency of the fendant orally announced that he ex-
witness, or to the competency or rele- cepted to certain depositions because
vancy of his testimony, can not be con- incompetent, and after the Judge had
sidered unless filed and noted on the orally announced his decision, but before
record before the commencement of the It was entered, he filed written excep-
trial. Estham v. Curd, 15 B. M. 102 ; tions, which were held to be in time.
Moore v. Smith, 88 Ky. 151. See sec. Cooksey v. Cassidy, 79 Ky. 392.
590, as to commencement of trial. (5) **The plaintiffs sued jointly, and
(2) When an exception to a deposition filed joint exceptions to the depositions,
is general and goes to the whole depo- and if the witnesses were competent as
fiition, if any part of it is competent the to any one of the plaintiffs they were
exception should be overruled. L. & N. competent as to all." Allen t. Russell,
R. R. Co. V. Graves, 78 Ky. 74. And 78 Ky. 105.
when exceptions have been overruled it is (6) Where exceptions were filed to
not proper to present the same exceptions depositions after commencement of trial
again. Lewis v, Williams, 4 Bush 678. because of failure to have commission
(3) It is not necessary for a party to issued to take them, and the exceptions
file, before the commencement of the sustained, the court should have granted
trial, exceptions to depositions taken be- a continuance. Moore v. Smith, 88 Ey.
fore he was made a party to the suit. He 151.
can object to and save an exception to | 588. Aiaeiitag certificate. See note
the reading of the depositions. Kerr v. 1 to sec. 582 ; Hall v. Renfro, 8 Met.
Gibson, 8 Bush 129. 51.
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TITLB Xin] DEPOSITIONS TO BE USED IN OTHEE STATES. 803
3. The examining officer shall amend his certificate, if he can do
SO truthfolly ; and, whether he amend it or not, he shall return the
deposition to the officer who sent it to him, and such officer shall
act with reference to it as is required by section five hundred and
eighty-three.
§ 589 [tvs] Error of court wahretf mless exce|»tod to. Errors of the court,
in its decisions upon exceptions to depositions, are waived unless
excepted to.
§ 590 [•»«] Swearing of jury Gommencemeiit of trial. K the trial be by
jury, the swearing of the jury shall be deemed the commencement
thereof.
SUBDIVISION 5.
DBPOSniONS TO BE USED Df OTHER STATES.
§ 591. Provisions concerning.
§ 591 [•»»] Proyisions coocemini:. A party desiring to take depositions
in this State, to be used in judicial proceedings in other States, may
produce to a judge of the county court of the county where the wit-
nesses reside a commission authorizing the taking of such depositions
or a notice duly served ; whereupon, it shall be the duty of the judge
to issue a subpoena requiring the witnesses to attend at a specified
time and place for examination ; and, in case of their failure to attend
or refusal to be sworn or to testify, they may be punished as is
provided in section five hundred and thirty-eight. [By similar pro-
ceedings before an examiner, justice of the peace or a notary public,
depositions may be taken by such ofiicers in this State, to be used in
judicial proceedings in other States; and the officer so taking such
depositions shall have the same powers in taking the same as judges
of the county courts now have ; but in cases of contempt and the
infliction of punishment for the same, or a failure upon the part of
the officer to punish for contempt, then it shall be the duty of the
officer, upon the motion of the witness or either party to the suit, to
promptly, in writing, report his actions and the reasons therefor to
the judge of the county court for the county in which the deposition
is being taken; and the court may change, modify or vacate the
1 581. Exception— wairer of. Excep- Met. IS ; Kussell v. Marks, 8 Met. 3S ;
tions can not be taken in the Court of Corn v. Simms, 3 Met. 391 : Lewis v.
Appeals for the first time. All objec- Wright, 3 Bush 311 ; 2 Duv. 334. See
tions are waived which are not made in further, as to exceptions, notes 5-8 to sec.
the circuit court. Weber v. Weber, 1 335.
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304 GENERAL RULES OF EXAMINATION. [TITLE Xm
order of the officer, and shall render judgment for the fine imposed
by the officer or by himself, and he shall, in accordance with the
judgment rendered, certify to the officer what further steps shall be
taken.] ( Words in brackets added by act 1884^)
ARTICLE 3.
GENERAL RULES OF EXAMINATION.
g 592. Order in which evidence introduced on trial.
§ 593. Court to control mode of interrogation.
§ 594. Direct and cross-examination.
§ 595. Leading questions, when permitted.
§ 596. Party can not impeach but may contradict his witness.
§ 597. Witness may be impeached by adverse party.
§ 598. Witness may be contradicted by evidence of different statements*
§ 599. Evidence of good character — when admissible.
§ 600. Re-examination of witness.
§ 601. Separation of witnesses.
§ 602. Person present may be compelled to testify.
§ 603. Judge or juror may be examined.
§ 604. Proof of writing by witness — comparison of handwriting.
§ 592 [•»•] Order io which evidence introduced on trial. The party wbo
begins the case must, ordinarily, exhaust his evidence before the
other begins. But the order of proof shall be regulated by the court,
so as to expedite the trial, and enable the tribunal to obtain a clear
view of the whole evidence. {See further concerning order of proof
sec. 317)
§ 593 [•5T] Court to control mode of interrogation. The court shall exercise
a reasonable control over the mode of interrogation, so as to make it
rapid, distinct, as little annoying to the witness and as effective for
the extraction of the truth as may be; but, subject to this control,
the parties may put such legal and pertinent questions as they may
see fit. The court, however, may stop the production of further
evidence on a particular point, if the evidence upon it be already so
full as to preclude reasonable doubt.
§ 594 [tst] Direct and cross-examination. The examination of a witness by
the party producing him is the direct examination ; his examination,
upon the same matter, by the adverse party is the cross-examination.
The direct examination must be completed before the cross-examina-
tion begins, unless the court otherwise direct.
§ 595 [tst] Leading questions, when permitted. A question that suggests
to the witness the answer which the examining party desires is a
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TITLB XIIl]
GENERAL RULES OF EXAMINATION.
805
leading question. On the direct examination, leading questions are
not allowed, except under special circumstances making it appear
that the interests of justice require it. On cross-examination, the
adverse party may put leading questions ; but, if he examine the
witness on new matters, such examination is subject to the same rules
as the direct examination.
§ 596 [••o] Party may contradict but not impeach his witness. The party
producing a witness is not allowed to impeach his credit by evidence
of bad character, unless it was indispensable that the party should
produce him; but he may contradict him by other evidence, and by
showing that he has made statements different from his present
testimony.
§ 597 [tti] Witness may be impeached by adverse party. A witness may be
impeached by the party against whom he is produced, by contradict-
ory evidence, by showing that he has made statements different from
his present testimony, or by evidence that his general reputation for
untruthfulness or immorality renders him unworthy of belief; but
§ 596. (1) Contradiction of wftoess. A
party may contradict his own witness in
two ways ; first, by other evidence ; and,
second, by showing that he has made
statements diflferent from his present tes-
timony. Either or both of these ways
may be adopted, nor is it necessary, in
order to enable a party to contradict his
own witness by showing that he has made
statements different from his present tes-
timony, that he should be able to prove
that his testimony is untrue. Champ, v.
Com., 2 Met. 17.
(2) A party may read a deposition
taken by the adverse party, and which
he declined to read, but when he does he
makes the witness his own, and can not
impeach him. Musick v. Ray, 3 Met.
438 ; as to contradiction by proving
statements in a former deposition, see
Helm V. Handly, 4 Litt. 220.
(3) When a party introduces a witness
to prove certain facts, and the witness
states that they did not transpire, he can
not then introduce other witnesses to
prove that the witness had said to them
that the facts he had inquired about did
transpire. The rule is that where a wit-
ness states a fact prejudicial to the party
calling him, the latter may be allowed
to show that the fact does not exist by
(20)
proving that the witness had made state-
ments to others inconsistent with his
present testimony ; but where the wit-
ness does not state any fact prejudicial to
the party calling him, but only fails to
prove facts supposed to be beneficial, he
can not be contradicted by evidence that
he had previously stated the desired facts
to others. Champ, v. Com., 2 Met. 17;
Loving V. Com., 80 Ky. 507; Blackburn
V. Com., 12 Bush 181.
(4) See further, notes to sec. 221, Crim-
inal Code.
§ 597. (I) CoBtradiction— irrelevant mat-
ter. A witness can not be cross-examined
as to any fact which is collateral and
irrelevant to the issue merely for the
purpose of contradicting him by other
evidence if he should deny it, thereby to
discredit his testimony. If a witness is
cross-examined without objection as to
collateral and irrelevant matters he can
not be contradicted concerning such
matters. Kennedy v. Com., 14 Bush 340;
Cornelius v. Com., 15 B. M. 539; Critten-
den V. Com., 82 Ky. 164; Meaux v.
Meaux, 81 Ky. 475.
(2) The court may permit a witness
to be recalled and examined with a view
of laying a foundation for contradicting
his testimony in chief by showing that
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306
GKNBRAL RULES OF EXAMINATION.
[title XIII
not by evidence of particular wrongful acts, except that it may be
shown by the examination of a witness, or record of a judgment, that
he has been convicted of felony.
§ 5f6 [••!] Witness may be contradicted by evidence of dlfffereot statements.
Before other evidence can be offered of the witness having made at
he has made statements different there-
from. Scott V. Com., 4 Met. 227.
(3) Conviction of crime. A witness may
be asked if he has been theretofore con-
victed of crime or arrested and sent to a
work-house. Burdette v. Com., 93 Ky. 76.
(4) Inpeaciineot of witness. The ex-
tent of the inquiry allowable on the ex-
amination in chief is as to the general
character of the witness, whether good
or bad; his or her general character for
truth or veracity. The general moral
character of the witness is also a fair
subject of inquiry; but not general char-
acter as to any particular acts of igno-
miny or turpitude. The particular facts
can be inquired into by the other side,
and such inquiry, when begun on cross-
examination, may be pursued by the
party impeaching; but he has no right,
on the examination in chief, to inquire
into particular facts, or general reputa-
tion as to such facts. Thurman v. Vir-
gin, 18 B. M. 785; 79 Ky. 205 ; and a wit-
ness may be impeached without refer-
ence to the materiality of his testimony.
Davis V. Com., 95 Ky. 19.
(5) "The regular mode of inquiring
Into the reputation of a witness is to ask
of those introduced for that purpose
whether they know the general reputa-
tion of the person in question among his
neighbors, and what that reputation is.
The inquiry must be as to his general
reputation where he is best known, or
with those among whom he dwells. And
when the impeaching witness is asked
for what others say respecting such per-
son, he must be able to state what is
generally said by those among whom he
dwells or with whom he is conversant.
But it is not essential to the admissibility
of such statements that they should
come from those who are both neighbors
and personal acquaintances of the party
impeached. They are admissible if made
either by those who are ftoqnainted with
him, or those who dwell in his imme-
diate neighborhood." Henderson v.
Hayne, 2 Met. 342. See Campbell v.
Bannister, 79 Ky. 205; Furnish v. Com.,
14 Bush 180: Lockard v. Com., 87 Ky. 201.
(6) interest of witness msy lie siMwn. A
witness may be compelled to disclose his
interest in the controversy, his motives
and prejudices, with a view of enabling
the jury to place a proper estimate upon
his testimony. Meaux v. Meaux, 81 Ky.
475.
(7) i>rMfof<liffefcntstBte«eiite. Where
a party introduces a witness and he testi-
fies to a material fact prejudicial to the
party he may be contradicted by show-
ing that he has made different state-
ments touching this fact. Wrenn v. L.,
St. L. & T. R. R., 14 R. 324 ;. and see as
to proof of different statements in a
deposition, Helm v. Hanly, 4 Litt. 220.
(8) Pririlegeof witeess. A witness can
not be compelled to answer any question
that would tend to expose him to any
kind of punishment or to a criminal
charge, but he may for the purpose of
impairing his credibility be examined as
to facts that tend to disgrace or degrade
him, although such facts are irrelevant
and collateral to the main issue. Burdett
V. Com., 93 Ky. 76; Pence v. Dozier, 7
Bush 133 ; Cole v. Wilson, 18 B. M. 214 ;
Sodiesky v. McGhee, 5 J. J. M. 622.
(9) See further, notes to sec. 221.
Criminal Code.
(10) Tine to wiiich eridence of dwracter
confined. In impeaching a witness his
character at the time, as well as before,
he is called to testify may be proven, but
the evidence of bad character shoukl be
directed to the time of the trial, and to
this end, under proper circumstances,
evidence of previous bad character is
competent. Manion v. Lambert, 10 Bush
295 ; Mitchell v. Com., 78 Ky. 2ia
|9M. (1) Witness to te teqniied of,
Iwfofc contradicted. Before other evidence
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TITLE Xni]
QINBRAL RULES OF EXAMINATIOIT.
807
another time a different Btatement, he mast be inquired of concerning
it, with the circumetances of time, place and persons present, ad cor*
rectly as the examining party can present them; and, if it be in
writing, it must be shown to the witness, with opportunity to explain it,
§ 599 [ttt] ErMeoce of t^od character — ^wfcea aifanissiUe. Evidence of the
good character of a witness is inadmissible, until Ms general reputa-
tion has been impeached.
§ M8[«f4] Re-exaniaatimi of witness. A witness once examined can not
be re-examined as to the same matter without leave of the court. But
he may be re-examined as to any new matter upon which he has been
examined by the adverse party. After the examination on both sides
is concluded, the witness can not be recalled without leave of the
court.
§ Ml [••»] SeparatkMi of witaesses. If either party require it, the judge
may exclude from the court-room any witness of the adverse party
not at the time under examination, so that he may not hear the testi-
mony of the other witnesses. [But this rule shall not apply to the
parties to the action or the officers of the court,] ( Words in brackets
added by act 1886.)
can be offered of the witness having
made at another time a different state-
ment, he must be inquired of concerning
the same, with the cireumstances of
time, place and persons present, as cor-
rectly as the examining party can pre-
sent them, and if it is desired to
contradict him by a writing, it must be
shown to him and he be allowed to
explain it. Murphy v. May, 9 Bush 33 ;
Campbell v. Bannister, 79 Ky. 205 ; and
see 88 Ky. 496.
(2) Where the witness is dead, and his
testimony given on a former trial is
reproduced, evidence that subsequent to
the former trial the witness stated that
the testimony given by him on that trial
was false is not competent. The rule
that a witness must be inquired of oon-
eerning conflicting statements, before he
can be contradicted, applies when the
witness is dead. Craft v. Com., 81 Ky.
250; and see further, notes to sec. 221,
Criminal Code.
%m. (1) OMtf clumctor— sifMmm of.
EMdence of the good character of a wit-
ness fs not admissible where he is only
impeached by proof of his having made
a different statement on another occa-
sion, or by proof of facts which contra*
diet those stated by him in his testi-
mony. Vance v. Vance, 2 Met. 581;
Sullivan v. Norris, 8 Bush 519.
(2) See further, notes to sec. 221, Crim-
inal Code.
I m. (1) BicMIn wttSMs froM awrt-
raom. The question of excluding wit-
nesses from the court-room is left to the
exercise of a sound Judicial discretion,
and if the presence of a witness is neces-
sary to enable a party to properly pre-
sent his case, the judge may permit him
to remain. Johnson y. Clem, 82 Ky.«84.
See further, Salisbury v. Com., 79 Ky.
425 ; and Walker v. Com., 8 Bush 86.
(2) The rule does not apply to attor-
neys who have the right to remain in the
court-room. Allen v. Com., 10 E. 582;
and see further, notes to sec. 221, Crim-
inal Code.
(3) Whether a witness who has re-
mained in the eourt-room and heard all
the testimony, notwithstanding an order
excluding the witnesses, shall be permit-
ted to testify is a matter in the discretion
ofthe tfiU court, and unless ft appear
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808 GENERAL RULES OF EXAMINATION, [tITLB XIII
§ 602 [fM] Persofl pretent may be compelled to testify. A person present
befor6 a court or before a judicial officer may be compelled to testify
in the same manner as if he were served with a subpoena.
§ 693 [••1] Judge or Jnror may be examined. The judge or a juror may be
called as a witness ; but, in such a case, it is in the discretion of the
court to suspend the trial and order it to take place before another
judge or jury; and, if a party know, when the jury are sworn, that a
juror is to be called by him as a witness, he shall then disclose it, and
the juror shall be excluded from the jury^
§ 6M [••>] Proof of writing— comparisoQ of handwritiiis. A writing shown to
a witness may be inspected by the adverse party, and, if proved by the
witness, it must be read to the jury before his testimony is closed;
otherwise, it can not be read, unless the witness be recalled.
[That in any action, prosecution or proceeding, civil or criminal,
which is now pending or may be commenced hereafter, upon a
dispute as to the genuineness of the handwriting of a person,
other handwritings of such person, though not in the case for any
other purpose, may be introduced for the purpose of comparison
by witnesses with the writing in dispute ; and such writings, and
the testimony of witnesses respecting them, may be submitted to
the court or jury as evidence concerning the genuineness of the
writing in dispute : Providedy That —
1. The genuineness of such writings shall be proved, to the
satisfaction of the judge, by other than opinion evidence.
2. It must be proved, to the satisfaction of the judge, that they
were written before any controversy arose as to the genuineness of
the writing in dispute, and that no fraud was practiced in their
selection.
8. A party proposing to introduce such writings must give
reasonable notice of his intention to the opposite party or his
attorney, with reasonable opportunity to examine them before
commencement of the trial.
4. The judge may limit the number of such writings.
5. An error of the judge shall be subject to revision and correc-
tion in the same manner as if the error had been committed by
the court.] ( Words in brackets act 1886.)
that this discretion has been abused It will permit counsel to present to a witness for
not be interfered ^ith. Carlton v.C!om., his opinion spurious signatures prepared
13 R. 946; and see Galloway v. Com., by an expert, for the purpose of deceiv-
7 R. 165. Ing the witness. Andrews v. Hayden,
I m. Haadwritings. It is not proper to 88 Ey. 455.
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TITLB xni]
COMPETENCY OP WITNESSES.
809
PART n.
(X)MPETENCY OF WITNESSES.
§ 605. Ck)mpetency of witnesses generally.
§ 606. 1. Husband and wife — exceptions.
2. Infant, lunatic or dead person — party against.
3. Party against defendant constructively summoned.
4. Party can not testify after taking testimony.
5. Attorneys and priests as to communications and confessions.
6. Party testifying against dead person or lunatic — how confined.
7. Entries in book — when party may testify concerning.
8. Prisoner can not testify — nor can party against.
9. Assignor of claim incompetent.
10. Adverse party may be compelled to testify.
11. Affidavits — provisions of this section do not apply to.
§ 607. Other objections go to the credit of witnesses.
§ 608. Interrogator's testimony as to new matter in equitable actions.
§ 609. New matter in answer to interrogatories adverse party may testify.
§ 605 [•••] Competeocy of witnesses generally. Subject to the exceptions
and modifications contained in section six hundred and six, every
person is competent to testify for himself or another, unless he be
found by the court incapable of understanding the facts concerning
which his testimony is offered.
I m. (1) Atheist may testify. All per-
sons have a right to testify without re-
gard to their religious belief or disbelief,
and an inquiry as to the religious belief
of a witness is improper. Bush v. Com.,
80 Ky. 244.
(2) Crimes that disqaalify. Persons con-
victed of false swearing or perjury or
subornation of perjury, or a school officer
who makes a false report, or a notary a
false statement as to notice in a protest,
shall be disqualified from giving evi-
dence. Ky. Stat., sec. 1180. This sec-
tion is substantially the same as sec. 8.
art. 8, chap. 29, Gen. Stat., and constru-
ing that section in Com. v. McQuire, 84
Ky. 57, the court said that the persons
disqualified were limited to those named
in the section, and see Combs v. Com.,
15 R. 600.
(3) Booics, productioa of. The court may
compel by rule the adverse party or one
who is not a party to produce in court
any books or documents in bis possession
to which the party applying for rule has
the exclusive right, or a right in com-
mon with others. Marion Nat. Bank v.
Abell, 88 Ky. 428.
(4) The court will not require their
production if the party applying has no
right or interest in them ; but if a party
having the custody of books or docu-
ments testifies as to their contents he
may then be compelled to produce them
for inspection, but not in advance of that
time. 88 Ky. 428.
(5) Coafessioas. See Becker v. Crow,
7 Bush 198.
(6) Letters. A party may by rule re-
quire the production of letters he has
written to his adversary for the purpose
of using them as evidence of a contract
between them. Marion Nat. Bank v.
Abell, 88 Ky. 428.
(7) Prisoner ia penltentiafy may testify
in a criminal prosecution. Com. v.
Minor, 89 Ky. 555; Combs v. Com., 15
R. 660.
(8) Testimony of a deceased witness—
how proved. It is not necessary that a
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810 COMPETENCY OF WITNESSES. [tITLB XIH
r ^^ ^ § W6 [tTO] Husband and wife — exceptions. 1. Neither a husband nor
' his wife shall testify, even after the cessation of their marriage,
^^^ ^ concerning any communication between them during marriage. Nor
shall either of them testify against the other. Nor shall either of
them testify for the other, except in an action for lost baggage or its
value against a common carrier, an inn-keeper or a wrong-doer, and
in such action either or both of them may testify ; and, except in
actions which might have been brought by or against the wife, if she
had been unmarried, and in such actions either, but not both, of
them may testify. {See noteSy page 313.)
witness introduced to prove what a de-
ceased witness had stated on a former
trial should be able to give the precise
words, or all the words, used by such
witness. It is sufficient if he is able to
give the substance of all that was sworn
to by him. Thompson v. Black well, 17
B. M. 609 ; Cave v. Cave, 13 Bush 452.
(9) '* The law is that when the witness
states that he remembers the substance
of all the deceased witness testified to,
both on the direct and cross-examina-
tion, he is a competent witness, and
when the evidence is heard, if it does
not clearly appear that the witness does
not remember the substance of all that
the deceased person testified to, the evi-
dence [should be permitted to go to the
Jury; but if it be manifest to the court
that he does not so remember, the evi-
dence should be rejected. If the state-
ment appears on Its face to cover the
substance of what the deceased witness
testified to in reference to the material
matters in issue, the evidence should be
allowed to go to the jury for their con-
sideration." Bush V. Com., 80 Ky. 244.
(10) The evidence in a bill of excep-
tions may be read (when the witness is
dead), in a civil action where a retrial has
been ordered. Kean v. Com., 10 Bush
190; and see O'Brian v. Com., 6 Bush
563.
§606. (1) Attorney. In all other cases,
except as forbidden in this subsection,
an attorney is a competent witness for
or against his client. Hall v. Renfro, 3
Met. 52. See Rice v. Rice, 14 B. M. 417.
(2) An attorney can not testify as to
any communications made to him In his
professional capacity unless the client
consents, and neither the cessation of
employment or death of the client will
render the evidence competent. Carter
v. West, 93 Ky. 211.
(3) BookB--cfltrlcs !■• ** Entries in the
books of a bank must be proved by the
persons making them, unless they have
died or absconded, and then the entries
themselves must be proved when the
books can not be produced in the court,
and it is not sufficient to prove, as was
done in this case, the mere conclusions of
the witnesses to their substance and
effect. But the entry itself, or an exact
copy thereof, must be presented to the
court, and, with the exceptions Just
named, the witness must Identify it as
having been made by himself, and though
he need not recollect the specific transac-
tion, he must be able to state that he
would not have made the entry If the
transaction had not taken place." Poor
V. Robinson, 13 Bush 290; and see Bran-
nin V. Force, 12 B. M. 506; Bank v.
Smith, 9 R M. 611.
(4) Mercantile books can only be ad-
mitted as affirmative evidence, and are
never admissible to establish a negative
proposition ; and a merchant's account
book is incompetent as evidence when it
shows on its face that it does not contain
the original entries of the items charged
in it. Lawhorn v. Carter, 11 Bush 7;
partnership books open to Inspection of
parties are evidence between them.
Simms v. Klrtly, 1 Mon. 80.
(5) Entries of sales of property may
be read from the book in which they are
made. Thompson v. Brannin, 94 Ky. 490.
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TITLE XIIl]
OOMPBTBNCY OF WITNESSES.
811
2. Iflfaot — limatic or deai pereon — ptrty ngulmt Subject to the pro-
visions of subsection seven of this section, no person shall testify
for himself concerning any verbal statement of, or any transaction
with, or any act done or omitted to be done by, an infant under
fourteen years of age, or by one who is of unsound mind or dead
when the testimony is oflfered to be given except for the purpose,
and to the extent, of affecting one who is living, and who, when
over fourteen years of age and of sound mind, heard such state-
ment, or was present when such transaction took place, or when
such act was done or omitted, unless —
a. The infant or his guardian shall have testified against such
person, with reference to such statement, transaction or act ; or,
b. The person of unsound mind shall, when of sound mind,
have testified against such person, with reference thereto ; or,
c. The decedent, or a representative of, or some one interested
in, his estate, shall have testified against such person, with refer-
ence thereto ; or,
d. An agent of the decedent or person of unsound mind, with
reference to such act or transaction, shall have testified against
such person, with reference thereto, or be living when such person
offers to testify, with reference thereto.
(6) Books— rale to prodvce. See notes 3-4
to sec. 605.
DBCBDBNrS ESTATE, AGAINST.
(7) Agent When the transaction in
controversy was had with an agent, a
party can not testify concerning it if the
agent is dead when the testimony is of-
fered to be given. Harpending v. Dan-
iel, 80 Ky. 449.
(8) Assigoee — assisonent In an action
by the assignee of a note the payor can
not testify as to what took place between
the payee (assignor) and himself when
note was executed, the payee being
dead, although his estate has no interest
in the matter. Hurry v. Kline, 93 Ky.
358.
(9) The fact that one has assigned his
claim or has been divested of all interest
in a claim against the estate of a de-
cedent does not render him a competent
witness against the estate as to the trans-
action out of which claim arose. Alex-
ander V. Alford, 89 Ky. 105.
(10) Depositioiit. A party can not have
read for himself his own deposition in
an action against an administrator, al-
though it was taken during the lifetime
of the administrator's intestate. Hardin
V. Taylor, 78 Ky. 593; but when a party
dies after giving his deposition the ad-
verse party may give his deposition.
Parent v. Mead, 3 K. 334.
(11) Deyfsees. In a contest about the
probate of a will a devisee is a compe-
tent witness as to transactions with
the decedent. Flood v. PragofT, 79 Ky.
607. See Cave v. Cave, 13 Bush 453;
Milton V. Hunter, 13 Bush 163; Phillips
V. Phillips, 81 Ky. 328; Williams v. Will>
iams, 90 Ky. 28 ; and one who claims
land as devisee under a will may prove
declarations of the testator for the pur-
pose of showing his title. Whallen v.
Nisbet, 95 Ky. 464.
(12) Distribitees. The distributee of
an estate is not a competent witness for
the administrator of his intestate in an
action in the name of the administrator
against another administrator. Manion
V. Lambert, 10 Bush 295.
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312
COMPETENCY OP WITNESSES.
[title XIII
3. Party a^ost defendant constructively summoned. ISo person shall
testify for himself against a party who is not before the court
otherwise than by constructive service of a summons.
4. Party can not testify after introducing other testimony. No person
shall testify for himself, in chief, in an ordinary action, after in-
troducing other testimony for himself, in chief; nor in an equitable
action, after taking other testimony for himself, in chief.
5. Attorney and priests as to communications and confessions. No attor-
ney shall testify concerning a communication made to him, in his
professional character, by his client, or his advice thereon, with-
out the client's consent ; nor shall a clergyman or priest testify
concerning any confession made to him, in his professional char-
acter, in the course of discipline enjoined by the church to which
he belongs, without the consent of the person confessing.
6. Party testifying: tigtAnsi dead person or lunatic. If the right of a
person to testify for himself be founded upon the fact that one
who is dead or of unsound mind has testified against him, the
testimony of such person shall be confined to the facts or transac-
tions to which the adverse testimony related.
(13) Qeaeral rales. A party is a com-
petent witness unless all th6 adverse
parties are persons against whom he
could not testify if they were sued singly.
Worthly v. Hammond, 13 Bush 519;
Allen V. Russell, 78 Ky. 105.
(14) Mother of a bastard is a competent
witness to prove a contract made by its
father with her for the support of the
child, when she is not a party to the suit
nor interested in the result, the action
against his estate being prosecuted for
the benefit of the bastard. Stowers v.
HoUis, 83 Ky. 644.
(15) The only inhibition is as to verbal
statements of or transactions with or
acts done or omitted by the decedent,
and a person may testify in his own be-
half as to facts that do not appear to
have been within the knowledge of the
decedent. Hunter v. March, 2 R. 240.
(16) A party can not state the consid-
eration paid to a decedent for the execu-
tion of a note by him. Mullikin v. Mul-
likin, 15 R. 609; Andrews v. Hayden,
88 Ky. 455.
(17) The interest of a witness may be
equiix)ise or he may be testifying against
his interest, but this does not qualify
him to testify as to a transaction with a
decedent. 89 Ky. 105.
(18) A party may testify concerning
transactions with a decedent when a rep-
resentative of or some one interested in
his estate has testified with reference
thereto. McHarry v. Irvin, 85 Ky. 322.
(19) In an action to recover the amount
of a note owned by two persons, each
owning one-half— the court, in Beach v.
Cummins, 13 R. 881, held that each
might testify for the other.
(20) The beneficiary of a fund is not a
competent witness for the trustee as to
transactions between the decedent and a
former trustee, and where it is claimed
that his interest has been removed by
the payment of his share in the estate
before the transaction he testifies about
took place, the burden is upon plaintiff
to show this fact. Hopkins v. Faeber,
86 Ky. 223.
(21) Partnerabip matters. In an action
by the surviving partner the defendant
can not testify as to what took place
between himself and the deceased part-
ner in the absence of the surviving
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TITLE XIIl]
COMPBTBNCY OP WITNESSES.
313
7. Entries io books — ^whea party may testify coacerain;. A person may
testify for himself as to the correctness of original entries made
by him against persons who are under no disability— other than
coverture, or infancy and coverture combined — in an account-
book, according to the usual course of business, though the person
against whom they were made may have died or have become of
unsound mind ; but no person shall testify for himself concerning
entries in a book, or the contents or purport of any writing, under
the control of himself, or of himself and others jointly, if he refuse
or fail to produce such book or writing, and to make it subject to
the order of the court for the purposes of the action, if required
to do so by the party against whom he offers to testify.
8. Prisoaer caa aot testify, aor party ugtAnsL ISo prisoner in a peni-
tentiary of this State, or of any other country, shall testify ; nor
shall any person testify for himself against such prisoner.
partner. Lawhorn v. Carter, 11 Bush 7 ;
and see Alexander v. Alford, 89 Ky. 105.
(22) In an action by an administrator
against a Arm, one of the partners can
not, by letting judgment go against him,
render himself a competent witness for
the other partners as to transactions with
the decedent. Worthington v. Miller, 85
Ky. 320.
(23) Peraonai representative. A personal
representative can not, when sued in his
representative capacity, testify as to
matters occurring between himself and
a decedent whose representative is pros-
ecuting the action. Hobbs v. Russell,
79 Ky. 61 ; and see Alexander v. Alford,
89 Ky. 105.
(24) An administrator is not a com-
petent witness against the infant children
of his intestate in an action by them by
their guardian against him to recover
rents which he had collected for lands
leased by him which had descended to
them. Wilson v. Unselt, 12 Bush 215.
HUSBAND AND WII^E.
(25) Constmction. The word "com-
munication" in this section should not
be confined to mere statements between
husband and wife, but should be con-
strued to embrace all knowledge upon
the part of the one or the other obtained
by reason of the marriage relation, and
which, but for the confidence growing
out of it, would not have been known to
the party. Com. v. Sapp, 90 Ky. 580.
(26) Divorce —effect of. Information
obtained by the husband or wife during
the marital relation by reason of its ex-
istence should not be disclosed even after
the relation has been dissolved. 90Ky.580.
(27) A divorced wife is a competent
witness in behalf of her husband to prove
facts which came to her knowledge
while the marriage relation existed be-
tween them, but which did not come to
her confidentially, nor by means of her
situation as his wife. Com. v. Sapp,
90 Ky. 580; Elswick v. Com., 13 Bush
155. See Storms v. Storms, 3 Bush 77.
(28) Qeaerarroleg. Either a surviving
husband or wife can testify for the ad-
ministrator of the other, when not in-
terested in the result of the suit as to facts
known to the witness from other means of
information than such as result from the
marriage relation. English v. Cropper, 8
Bush 292 ; Short v. Tinsley, 1 Met. 397.
(29) A widow, having no interest in
the result of a suit between her hus-
band's executor and another person, is a
competent witness for the executor.
Booth V. Vanarsdale. 9 Bush 717.
(30) The husband of one of the heirs
interested in the rejection of a will, al-
though she is not a party to the record,
can not testify against her interest. Mil-
ton V. Hunter, 13 Bush 163.
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314
COMPETENCY OP WITNESSES.
[title xni
9. Aislfoor of dtim iocompeteiit The aseignment of a claim by a
person who is incompetent to testify for himself shall not make
him competent to testify for another.
10. Adverse party ouiy be cooipeHed to testily. A party may compel
an adverse party to testify as any other witness.
11. Affidavits — attestiof witoesses — provisioos of tliis section do not apply
to. None of the preceding provisions of this section apply to
affidavits for provisional remedies, or to affidavits of claimants
against the estates of deceased or insolvent persons, or affect the
competency of attesting witnesses of instruments which are
required by law to be attested. {Evidence as to disputed hand-
writings^ see act^ sec. 604^.)
§ 607 [iTi] Otlier objections fo to tlie credit of witnesses. All other objec-
tions to witnesses shall go to their credit alone, and be weighed by
the jury or tribunal to which their evidence is offered.
(31) Neither husband nor wife can
testify in any case against the other.
When the wife is the beneficiary of the
action she may testify, but both she and
her husband can not; and in such case
she has the right to elect to offer herself
as a witness and to exclude by her elec-
tion her husband. Wise v. Foote, 81 Ky.
10; Booth V. Vanarsdale, 9 Bush 717.
(33) In an action by creditors of the
husband to set aside a conveyance to the
wife as fraudulent the husband is a com-
petent witness for the wife. Howard v.
Tenney, 87 Ky. 52; and in such case
where the creditor takes the evidence of
the wife the husband may testify for
himself. Truitt v. Curd, 13 R. 118.
(33) In an action for damages caused
by injury to real property owned jointly
by the husband and wife, either, but not
both, may testify. City of Co v. v.
Geyler, 93 Ky. 375.
(34) Lost writiof— conteflts of may be
proved, but before admitting parol evi-
dence of con tents, it should clearly appear
that writing was lost or* destroyed.
Pluney v. Pindell, 7 Bush 571 ; and that,
after due diligence, it can not be found.
Dickerson v. Talbott, 14 B. M. 60.
(35) Ordinarily the existence of a writ-
ten contract alleged to have been lost, or
not in the custody of party attempting
to enforce it, must be established by the
attesting witnesses, if any, or, if none, by
those who saw the contract and were
either present when it was entered into
or recognized the handwriting of the
parties to it after it had been executed
and delivered. Benjamin v. Ellinger, 80
Ky. 473 ; GiUaspie v. Osbom, 3 Mar. 80 ;
McMurtry v. Peebles, 4 Mon. 40 ; Clark
V. Bartlett, 4 Bibb 401 ; Senteney v. Over-
ton, 4 Bibb 445.
(36) Where a party has a paper and
refuses to produce it, parol evidence of
its contents Is admissible, and every pre-
sumption is to be indulged against party
failing to produce paper. 80 Ky. 473.
(37) Parol evidence of lost records of a
corporation is competent. Sinking Fund
V. Bank, 1 Met. 174.
(38) Where a writing is out of the
State its contents may be proved. Wal-
ler V. Cralle, 8 B. M. 14.
(39) Nofl-resMeat—acalnst One of two
partners mortgaged his interest in the
partnership property and left the State,
and the mortgagee brought suit to fore-
close against him by constructive serv-
ice, and his partner by actual service of
process. The latter claimed a prior lien
on the partnership property. Neither
the mortgagee nor the partner who as-
serted lien was competent as a witness
against the defendant constructively
summoned. Love v. Cummings, 10 Bush
578.
(40) Prisoner !■ peaiteatiary may testify
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TITLB Xin] PBRPETUATION OF EVIDENCE. 815
§ MS [tTt] Merrofator'B testiaooy as to new matter hi Hnitable action. In
equitable actions, if a party, in answering interrogatories, state new
matters not responsive to the inquiries, the party interrogating may,
before the trial, file his written statement, under oath, concerning
such new matters, which shall be read as a deposition, though the
party so answering may have died or have become a prisoner or of
unsound mind. {Provisions concerning interrogatories ^ sees. I40 to 161.)
§ M9 [iTs] New matter io answers to interrofatories adverse iMrty may testily.
In ordinary actions, if a party, in answering interrogatories, or
when introduced as a witness, state new matters not responsive to
the inquiries of the adverse party, the latter shall be allowed to
testify orally concerning such new matter, though the party so
answering may have died or have become a prisoner or of unsound
mind.
PART ni.
PERPETUATION OF EVIDENCE.
§ 610. How and by whom perpetuated.
§ 611. Proceedings against adverse party.
g 612. Depositions — how taken^KJOSts.
§ 613. Depositions — when may be read.
§ 614. Copies of deposition — when may be read.
§ 615. Evidence heretofore perpetuated may be read.
§ ilO [iTt] How and by whom perpetuated. A person who resides in this
State and expects to be a party to an action in a court hereof; or
who, being a non-resident of this State, has an interest in real
property herein, concerning which he expects to be a party to an
action in a court hereof; and who desires to perpetuate the testimony
of witnesses, may file, in the circuit court of the county in which he
resides, or in which the property is situated, a petition in equity,
verified by his afiidavit, stating —
in a criminal prosecution. Com. v. (42) Where a party withdraws his
Minor, 89 Ey. 555 ; Combs v. Com., 15 testimony in chief and then offers to tes-
R. 660. tify for himself, the court will not con-
(41) Testlnoiy !■ chief after others side r the testimony of the party or that
ha?e testified. Where the answer of one withdrawn. Allison v. Moore, 3 R. 326.
of two defendants operates for both, the (43) It is too late to raise the question
defendant not answering can not testify for the first time in Court of Appeals
in chief for his co-defendant after the that party took other depositions before
latter has taken other testimony. Amer- he gave his own. Hampton v. Bailey, 9
ican Nail Co. v. Bayless, 91 Ky. 94. R. 423.
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816 PERPETUATION OF EVIDENCE. [tITLE Xni
1. That he expects to be a party to an action in a court of this
State, and the nature of the expected controversy.
2. The name, age and place of residence of the expected
adverse party, if known by the petitioner; or his ignorance
thereof, if not known by him.
3. That the evidence of witnesses — whose names and the facts,
generally, expected to be proved, shall be stated — is believed by
the petitioner to be material to him.
4. The obstacles preventing the commencement of the action or
proceeding, if he expects to commence the same.
§ 611 [iTT. IT*] Proceediofs against adverse party. 1. The expected adverse
party shall be summoned and proceeded against in the same manner
as a defendant to an action.
2. After such expected party is brought before the court, actually
or constructively, the court may, in its discretion, make an order
for the examination of the witnesses.
§ 612 [tTs to ISO] Depositions how taken— costs. 1. K the examination of
the witnesses be permitted by the court, their depositions shall be
taken, certified and delivered or sent to the clerk of the court, and be
kept by him, as depositions in equitable actions.
2. The petitioner shall pay all costs incurred.
§ 613 [••!] Depositions — when may be read. Upon a trial of the contro-
versy in the petition mentioned, between the persons therein named
as expected parties or their representatives or successors, such depo-
sitions, subject to exceptions as if they had been taken pending the
action, may be read by either party under the circumstances pre-
scribed in section five hundred and fifty-four.
§ 614 rits] Copies may be read — when. If the trial be not in the court in
which the deposition is filed, it and the affidavit, order, notice and
proof of service, or certified copies thereof, may be read as evidence.
§ 615 [••>] Evidence heretofore perpetuated may be read. Evidence which
has been or may be perpetuated, agreeably to laws heretofore in
force, may be read on the trial of any action or suit which has been
or may be commenced in any court of this State, subject to excep-
tions as if they had been taken pending such suit or action.
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TITLB XIV]
SECURITY FOR COSTS.
317
TITLE XIY.
MISCELLANEOUS PROCEEDINGS.
Chaftbb I. Security for costs, 616.
II. Motions and notices, 622. •
in. Offer to compromise, 634.
IV. Submitting a controversy, 637.
V. Offer to confess judgment, 640.
VI. PROCEEDINOS UPON EXECUTIONS AND DISTRESS WARRANTS, 641.
YII. Proceedings by sureties, 661.
CHAPTER I.
SECURITY FOR COSTS.
§ 616. Non-residents and corporations except banks.
§ 617. Action to be dismissed if bond not given.
§ 618. Plaintiff becoming non-resident must give bond.
§ 619. Other persons who may be required to secure costs.
§ 620. Additional securit}' may be required.
§ 621. Attorney liable until bond given.
§ il6 [••«] Noo-resideots and corporations except banks. A plaintifi who is
a non-resideut 'of this State, or a corporation other than a bank
created by the laws of this State, before coramencing an action, shall
file in the clerk's oflBlce a bond of a sufficient surety, to be approved
by the clerk, for the payment of all costs which may accrue in the
action in the court in which it is brought, or in any other to which
it may be carried, either to the defendant or to the oflBlcers q{ the
courts. {Form of bondj page 6£6; provisions of this chapter apply to
parties in Court of Appeals^ sec. 744-)
§ 617 [6SB] Action to be dismissed if bond not fiven. An action in which a
bond for costs is not given, as is required by section six hundred and
sixteen, shall be dismissed on the motion of the defendant at any
time before judgment, unless in a reasonable time, to be allowed by
the court, after the motion is made therefor, such bond be filed,
I 616. (1) Costs. A person may, by
a recognizance of record, become secur-
ity for costs, and in such case the lia-
bility of the surety may be enforced by
summary proceedings. Kinney v. O'Ban-
non, 6 Bush 692.
(2) As to security for costs in Court of
Appeals, see sec. 744; and Paducah'Hotel
Co. V. Dennis Long, 92 Ky. 278.
( 3 ) New trial opoa payment of costs. See
Ky. Stat., sec. 899, and Myers v. Lummis,
80 Ky. 456; Galbraith v.^Galbraith, 5 R,
859; Mattingly v. L. & N. R. R., 92 Ky.
463; Carbon v. Stout, 7 Bush 609.
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818 SECURITY FOR COSTS. [TITLE XIV
securing all past and future costs ; and the fl;Ction shall not be dis-
missed or abated, if a bond for costs be given in such time as the
court may allow.
§ il8 [•••] Plaiotlff becomiof noo-resideiit mast five bond. If the plaintiff
in an action, after its institution, become a non-resident of this State,
he shall give security for costs in the manner and under the restric-
tions provided in the preceding sections of this chapter.
§ 619 [6ST] other persons who may he required to secure costs. A guardian,
curator, committee or next friend, suing for a person under disability ;
and every plaintiff suing as an assignee, except an indorsee of a bill
of exchange or a promissory note placed upon the footing of a bill of
exchange, when insolvent, may be required to give security for costs ;
and on failure to do so in a reasonable time after it is directed by the
court, upon the motion of the defendant his action shall be dismissed.
§ 620 [•••] Additional security may he required. In an action in which a
bond for costs has been given, the defendant may at any time before
judgment, after reasonable notice to the plaintiff, move the court for
additional security on the part of the plaintiff; and if, on such
motion, the court be satisfied that the surety in the plaintiff's bond
has removed from this State, or is not sufficient for the amount
thereof, it may dismiss the action, unless in a reasonable time, to be
fixed by the court, sufficient security be given by the plaintiff.
§ 621 [•••] Attorney liaMe until hond fiven. If process be issued in an action
by the direction of an attorney for a plaintiff who is required by the
first section of this chapter to give security for costs, but who has
failed to do so, the attorney shall be liable as surety for the costs in
the action, until a bond is given ; and his liability may be enforced
by orders of court, and by proceedings as for contempt, if they be
not obeyed.
I 619. Poor Infaat may be permitted to peals for a non-resident defendant is not
prosecute an action by an insolvent next liable for costs. Christmas v. Russell, 2
friend, without giving security for costs. Met. 112.
Westerfleld v. Wilson, 12 Bush 125; and (2) It is only where an attorney for a
see sec. 37 of Code; and Ky. Stat., sec. plaintiff directs process to issue that he
884. is liable for costs; the attorney for de-
I 421. (1) Attoney who prays and fendant is not liable for any coats under
prosecutes an appeal to the Court of Ap- this section. 2 Met. 112.
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TITLE XIV] MOTIONS AND NOTICES. 319
CHAPTER n.
MOTIONS AND NOTICES.
§ 622. Orders of court defined.
§ 623. Motion defined.
§ 624. Notices — requisites of and who may serve.
§ 625. Notice — how served.
§ 626. Notice — when court may direct mode of serving.
§ 627. Persons under disability — service on.
§ 628. Corporation — service on.
§ 629. Husband and wife — service on.
§ 630. Person constructively summoned — service on.
§ 631. Attorney — when service on sufficient.
§ 632. Depositions— service of notice to take.
§ 633. Officer to execute notice — penalty for failure.
§ UZ [eto] Order of coart defiiied. A direction or decision of a court or
judge entered upon tke order-book or made in writing, in an action,
and not final, is an order. (What orders finalj sees, 266 y 298 ^ 475)
§ i23 [691] Motloo defined. An application for an order is a motion.
§ tt4[t«s] Notices — requisites off aad who may scnre, 1. The notices men-
tioned in this Code must be in writing, must concisely state the pur-
port thereof, and may be served by an officer whp is authorized to
serve a summons, or by any person who is over the age of sixteen
years and not a party to, nor interested in, the action.
2. The person who serves a notice must, by an indorsement on
it, state when and how it was served ; and, if a copy of it be not
delivered to the person to whom it is directed, the indorsement
must state the facts authorizing the manner of service pursued.
8. If the person who serves the notice be an officer, his indorse-
ment must show his official position ; if he be not an officer, he
must make an affidavit that his indorsement is true, that he is over
sixteen years of age, and that he is not a party to, nor interested
in, the action.
§ 622. Orders tiMt are flaal. See notes well prepared to meet it as if it were more
to sees. 368, 734. specifically set forth, and he can not
1 423. Metioa. See sees. 444-440 and afterward object to the notice. Brown
notes thereto ; and as to entry on mo- v. Gibson, 78 Ky. 602.
tioB docket, see sec. 352 and note. (2) Serrice of aotke. A sheriff's re-
|tt4 (1) Notice — watrer. When a turn on a notice that he executed it by
party appears to a notice defective in leaving a copy with the wife of the de-
form, and without objection makes de- fendant, he not being at home, is suffl-
fense to the merits, he virtually admits cient. The presumption it that the
that he is fully informed of the claim sheriff did his duty. Fleece v. Good-
asserted against him, and that he is as rum, 1 Duv. 306 ; and see further, as to
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820 MOTIONS AND NOTICES. [TITLE XIV
4. Such indorsement of an oflBlcer, and such indorsement and
aflBldavit of one who is not an officer, shall be proof of the service-
{Officers who can serve summons ^ sec, 667,)
§ 625 [ew] Notice — how served. A notice may be served by delivering
a copy of it to the person to whom it is directed, or by ottering to
deliver it to him ; or, if he can not be found at his usual place of
abode, by leaving a copy there with a person over the age of sixteen
years residing in the same family with him ; or, if no such person be
there, by affixing such copy to the front door of such place of abode;
or, if the person to whom the notice is directed can not be found and
has no known place of abode in this State, the notice may be served
by delivering a copy to his agent or attorney.
§ 626 [••«] Conrt may direct mode of serviog — wlien. If the person to
whom a notice is directed have no known place of abode in this
State and no known attorney residing in this State ; or, if the persons
to be notified be numerous, the court may direct the mode of serving
the notices, and to what persons, if any, they shall be given. A certi-
fied copy of the order must be returned with the service of the notice.
§ 627 [••»] Person under disability — service on. A notice to a person who
is under any disability, excepting coverture, or infancy and coverture
combined, shall be served on his guardian, guardian ad litems curator,
committee or next friend, if he have one, who represents him in the
action.
§ 628 c«»«J Corporation — service on. A notice to a corporation may be
served on its chief officer or agent, or on its attorney. ( Who is " chief
officer or agent,'' sees, 732-33)
§ 629 [•»»] Husband and wife — service on. K husband and wife unite in
bringing or defending an action, the service of a notice on the hus-
band shall be deemed a service on the wife.
§ 630 [«»«] Person constructively summoned — service on. A notice to a per-
son constructively summoned and not appearing shall be served on
the attorney appointed to defend for him.
§ 631 :«•»] Attorney — when service on sufficient. Unless it be otherw^ise
specially provided in this Code, a notice to a party in an action of
any motion or proceeding to be made or taken therein, in court or
presumption that officer did his duty, is directed, although the person to whom
and difference between effect of return it is delivered may not at the time be at
by officer and return by one not an offi- the residence, is sufficient, if person to
cer, notes to sec. 48. whom notice is directed can not be
§ 625. Service of notice by delivering a found. Broaddus v. Mason, 16 R. 38 ;
copy of it to a person residing in the and see further, notes to sec. 48,
same family with the person to whom it
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TITLE XIV] OFFBR TO COMPROMISE. 321
before a judge, may be served upon such party or his attorney ; but
the service upon the attorney must be by delivering to him a copy of
the notice.
§ 632 [Tooi Depositions-r-service of ootice to take. If a party to an action,
or his guardian, guardian ad liteniy curator, committee or next friend,
do not reside in the county in which it is pending, a notice to him to
take depositions may be served by delivering a copy thereof to his
attorney.
§ 633 [Toi] Officer to execute ootice — penalty for failure. An officer to whom
any notice in an action is properly delivered for service within his
county shall serve and return it to the party who delivered it to him.
A failure to perform this duty may be punished as a disobedience of
the process of the court.
CHAPTER III.
OFFER TO COMPROMISE.
§ 634. Offer of defendant before trial — effect— notice.
§ 636. Offer of defendant after answer— effect — notice.
§ 636. Offer not cause for continuance.
§ 634 [Tos] Offer of defendant before trial^ffect — notice. The defendant
in an action for the recovery of money only may, at any time before
the trial, serve upon the plaintiff or his attorney an offer in writing
to allow judgment to be taken against him for the sum specified
therein. If the plaintiff' accept the offer, and give notice thereof to
the defendant or his attorney, within five days after the offer was
served, the offer and an afiidavit that the notice of acceptance was
delivered in the time limited may be filed by the plaintiff; or the
defendant may file the acceptance, with a copy of the offer verified
by aflidavit; and, in either case, the offer and acceptance shall be
noted upon the record, and judgment shall be rendered accordingly.
If the notice of acceptance be not given in the period limited, the
offer shall be deemed withdrawn, and shall not be given in evidence
§ 632. Notice to take depositions executed 1 634. Compromise-Attorney— power of.
on attorney appointed for non-resident An attorney at law, under his general
infants and before a guardian ad litem authority as such, independent of any
is appointed, may be read after defense special authority conferred upon him by
has been made for them. C. & L. R. R. his client, has no power to compromise
V. Bowler, 9 Bush 468. the suit or to surrender the claim of his
(21)
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322 SUBMITTING A CONTROVERSY. [TITLE XIV
nor mentioned on the trial. If the plaintiff fail to obtain judgment
for more than was offered by the defendant, he shall pay the defend-
ant's costs from the time of the offer.
§ 635 [Tos] Offer by defendant after answer — effect — notice. In an action
for the recovery of money only, the defendant, having answered,
may serve upon the plaintiff or his attorney an offer in writing that,
if he fail in his defense, the amount of the recovery shall be assessed
at a specified sum. If the plaintiff accept the offer and give notice
thereof to the defendant or his attorney, within five days after it was
served, and the defendant fail in his defense, the judgment shall be
for the amount so agreed upon. If the plaintiff do not accept the
offer, he shall prove the amount to be recovered, as if the offer had
not been made. The offer shall not be given in evidence nor men-
tioned on the trial. And, if the amount recovered by the plaintiff
do not exceed the sum mentioned in the offer, the defendant shall
recover his costs incurred in the defense in respect to the question of
amount, to be taxed under the direction of the court.
§ 6J6 [T04] Offer not cause for continuance. The making of any offer,
pursuant to the provisions of this chapter, shall not be a cause for a
continuance of an action or a postponement of a trial.
CHAPTER IV.
SUBMITTING A CONTROVERSY.
§ 637. Parties may submit agreed case to the court.
§ 638. Record of agreed case — what constitutes.
§ 639. Judgment in — appeal from.
§ 637 [705] Parties may submit aji:reed case to tlie court. Parties to a ques-
tion which might be the subject of a civil action may, without action,
client and dismiss the action. Smith v. plaintiff is entitled, sec. 640 applies.
Dixon, 3 Met. 438. Maxwell v. Dudley, 13 Bu.sh 403.
§635. (1) Offer to coofess jodfinent — (2) If defendant offer in his answer to
costs. **This section applies alone to confess judgment for a specified amount
cases in which something more than the and plaintiff refuses to accept it, the de-
mere amount of recovery is involved. fendant should not be charged with any
The defendant must rely upon a defense costs after offer unless plaintiff recover
that goes to the whole action, or to some more than was offered. Bull v. Harrigan,
item or distinct portion of it, before he 17 B. M. 349.
can avail himself of the benefit of this § 637. (1) Af^reed case — lorisdlction.
section;" when the onlj- matter in dis- The circuit court has no authority to
pute is the amount of recovery to which hear and decide an agreed case unless an
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TITLE XIV] OFFER TO CONFESS JUDGMENT. 823
state the question and the facts upon which it depends, and present
a submission thereof to any court which would have jurisdiction, if
an action had been brought. But it must appear by affidavit that
the controversy is real, and the proceedings in good faith, to deter-
mine the rights of the parties. The court shall, thereupon, hear and
determine the case, and render judgment as if an action were
pending.
§ b3S [Toi] Record of agreed case — what constitutes. The case, the sub-
mission and the judgment shall constitute the record.
§ 639 [TOT] Judgment in — appeal from. The judgment shall be with
costs, and may be enforced, and shall be subject to reversal, in the
same manner as if it had been rendered in an action, unless other-
wise provided in the submission.
CHAPTER V.
OFFER TO CONFESS JUDGMENT.
§ 640. How made — effect of refusal to accept.
§ 640 [T08] How offer made — effect of plaintiff's refusal to accept After an
action for the recovery of money is brought, the defendant may
ofter, in court, to confess judgment for part of the amount claimed
or part of the causes involved in the action. Whereupon, if the
plaintiff, being present, refuse to accept such confession of judgment
in full of his demands ; or, having had reasonable notice that the
offer would be made, of its amount,^and of the time of making it,
fail to attend, and on the trial do not recover more than was so
offered to be confessed, such plaintiff shall pay all the costs of the
defendant incurred after the offer. The offer shall not be deemed to
be an admission of the cause of action or amount to which the
plaintiff is entitled, nor be given in evidence upon the trial.
affidavit is filed stating that the contro- jurisdiction to trj' it without an affidavit
versy is real, and the proceedings in good being filed. Canady v. Hopkins, 7 Bush
faith to determine the rights of the 108.
parties. Jones v. Hoffman, 18 B. M. § WO. Offer to confess. The offer must
C56. be made in court either when the plaint-
(2) But where the agreement consists iff is present, or at a time when he is
in a brief statement on the record and notified that it will be made (Maxwell v.
does not dispense with proof of the facts Dudley, 13 Bush 403); and if the plain t-
upon which judgment is sought, they re- iff declines to accept the offer he is not
malning to be established by testimony, entitled to recover his costs expended
the mode of presenting the case is irregu- after it is made. Evans v. Chapel, 13
lar and inconvenient, but the court has Bush 121; Bull v. Harragan, 17 B. M. 349.
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824 EXECUTIONS AND DISTRESS WARRANTS. [TITLE XIV
CHAPTER VI.
PROCEEDINGS UPON EXECUTIONS AND DISTRESS WARRANTS.
§ 641. Bond of indemnity — officer may require.
§ ^642. Bond not given, officer may refuse to act.
§ 643. Claimant or purchaser must look to bond.
§ 644. Surplus proceeds of sale— disposition of.
§ 645. Claimant may suspend sale by executing bond.
§ 646. Appraisement of property.
§ 647. Bond and appraisement — to what court returned.
§ 648. Motion for judgment ou bond — trial of.
§ 649. Appraisement may be objected to.
§ 650. Claimant's bond does not discharge levy— motion to discharge.
§ 651. Executions from inferior courts— proceedings upon.
§ 652. Distress warrants — preceding sections applicable to.
§ 653. Tenant may give bond and discharge levy — appraisement.
§ 654. Motion by plaintiff for judgment— defenses allowed.
§ 655. Trial of motion by justice.
§ 656. Trial of motion if made in court.
§ 657. Judgment for rent and damages — execution on.
^§^658. Tenant may suspend part of warrant.
§ 659. Ancient trial of right of property abolished.
§ 660. Execution levied on joint property — proceedings.
§ 641 [709] Bond of indemnity — officer may require. If an officer, who levies
or is required to levy an execution upon personal property, doubt
whether it is subject to the execution, he may give to the plaintiff
therein, or his agent or attorney, notice that an indemnifying bond is
§ 641. (1) Actiofl 00 bond. An execu- bond. It is intended to protect all legal
tion defendant may maintain an action as well as equitable claimants. Watts
on the bond to recover the value of v. Cook, 2 Bush 141.
property sold, and which was exempt (5) Liability of sheriff fenerally. When
from seizure and sale under the execu- the sheriff acts in good faith, having no
tion. Dixon v. Bacon, 3 Bush 534. sufficient reason to doubt the title, he is
(2) Action afalnst purchaser. The ex- not responsible to the purchaser. But
ecution of a bond does not deprive a when informed as to the existence of an
claimant of the property seized of his adverse claim, or being in possession of
right to si^ the purchaser at the execu- facts which should place one of ordinary
tion sale for recovery of the property or prudence on inquiry in regard to the
its value. Bethel v. Vanmeter, 9 R. 331. title, it is his duty to take a bond of in-
(3) Defective bond— action against officer, demnity to protect the purchaser, as well
A bond which contains no covenant to pay as the claimant, or he should notify the
to the claimant of any property seized purchaser of the defect in the title; and
or sold the damages sustained by such a failure to do either will render him
claimant, presents no bar to an action liable in such case to a suit by the pur-
against the officer by such claimant. chaser. Harrison v. Shanks, 13 Bush
Jewell V. Mills, 3 Bush 62. 620 ; Anderson v. West, 80 Ky. 171.
(4) Equitable claimant— action by on bond. (6) Obligors in bond— liability of. If prop-
A person who has a lien on the property erty not subject to execution is levied on
sold may maintain an action on the and an indemnifying bond given, and a
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TITLE XIV]
EXECUTIONS AND DISTRESS WARRANTS.
325
required. Bond may, thereupon, be given by or for the plaintiff,
with one or more sufficient sureties, to be approved by the officer,
to the effect that the obligors therein will indemnify him against the
damages which he may sustain in consequence of the seizure or sale
of the property ; and will pay to any claimant thereof the damages
he may sustain in consequence of the seizure or sale ; and will war-
rant to any purchaser of the property such estate or interest therein
as is sold; and, thereupon, the officer shall proceed to subject the
property to the execution, and, subject to the provisions of section
six hundred and fifty-one, shall return the indemnifying bond to the
circuit court of the county in which the levy is made. {Form of bond,
page 640; of execution, page 638; of replevin bond, page 641; of sale
bond, page 64I)
sale is made for more than sufQcicnt to
satisfy the execution, the obligors in the
bond are liable not only for the amount
of the execution, but for the entire dam-
ages sustained in consequence of the
seizure and sale. Secrets v. Mark well,
11 Bush 316.
(7) Officer may require boiul. Whenever
an officer in good faith and in the exer-
cise of his official discretion dofuhU
whether the property is subject to levy or
sale, the law gives him the right to de-
mand the bond of indemnity. This right
is not confined to any particular class of
cases, and the existence of such a doubt
is the sole condition upon which the right
depends. Board v. Helm, 2 Met. 500.
(8) Officer— when l>ond protectioa to. To
entitle an officer to the protection af-
forded by a bond of indemnity, he must
show a strict compliance on his part
with the several conditions on which
alone such protection is afforded. Those
conditions are that he shall have taken
and returned the indemnifying bond, and
that the surety therein was good when
it was taken. Each is indispensable.
Green v. Hackley, 3 Met. 387 ; Rudy v.
Johnson, 11 Bush 543 ; Carrington v.
Herrin, 4 Bush 624.
If the officer desires complete protec-
tion he should require the execution of
the bond before making the levy. The
seizure of the property is of itself a tres-
pass and the claimant may institute an
action at once, and a bond taken after
suit is commenced will not defeat so
much of the action as seeks a recovery
for the damages incident to its seizure
and its detention up to the date of the
bond. Rudy v. Johnson, 11 Bush 543.
(9) The officer may, if he sees proper,
advertise the sale of the property and
may await the execution of the bond un-
til the hour of sale has arrived ; and if it
be then executed he may proceed to sell,
and return it to the proper office as soon
thereafter as it can reasonably be re-
turned, and may rely upon its execution
and return as a bar to an action to re-
cover the value of the property sold, and
also as a bar to a recovery for damages
for the seizure and detention of the prop-
erty, unless the action was instituted be-
fore the date of the execution of the
bond. 11 Bush 543.
(10) Retom of l>ond by officer. *' What
will amount to reasonable dispatch in
the return of the bond must necessarily
depend upon the facts of each particular
case, but we are of opinion that the
return on the day succeeding the sale
ought to be regarded as legal diligence
under any circumstances." 11 Bush 543.
(11) If he requires the bond after the
seizure of the property and makes due
return thereof, he will thus wholly de-
feat any action that may be instituted
against him after he has taken the bond;
but if the claimant sued before the bond
was taken, its execution and return will
defeat only so much of the action as
seeks a recovery for the value of the
property. 11 Bush 543.
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826
EXECUTIONS AND DISTRESS WARRANTS.
[title XIV
§ 642 [Tio] Bond not given, officer may refuse to proceed. If the bond men-
tioned in the last section be not given, the officer may refuse to levy
the execution ; or, if it have been levied, and the bond be not given
in a reasonable time after it is required by the officer, he may restore
the property to the person from whose possession it was taken, and
the levy shall stand discharged.
§ 643 [Til] Claimant, or purchaser, must look to the bond. The claimant or
purchaser of any property, for the seizure or sale of which an indem-
nifying bond has been taken and returned by the officer, shall be
barred of any action against the officer levying on the property, if the
surety in the bond was good when it was taken. And such claimant
or purchaser may maintain an action upon the bond and recover
such damages as he may be entitled to. {Plaintiff in execution may be
made defendant in suit against officer j sec, 32.)
§ 644 [Tisi Surplus proceeds of sale, disposition of. If property, for the sale
of which the officer is indemnified, be sold for more than enough to
satisfy the execution under which it was taken, the surplus shall be
paid into the court to which the indemnifying bond is directed to be
returned. That court may order such disposition or payment of the
money to be made, temporarily or absolutely, as may be proper, in
respect to the rights of the parties interested.
§ 645 lti3] Claimant may suspend sale by executing bond. The sale of per-
sonal property upon which an execution is levied shall be suspended
at the instance of any person — other than the defendant in the execu-
(13) Sheriff— liability of for falllog to sell
when bond glvea. Although it is made
the duty of the sheriff to sell the property
levied on when a hond is given, yet if he
fail to do so he is only liable for such
damages as the plaintiff actually sus-
tained by his misconduct, and may show,
in an action on his bond, that the prop-
erty was not subject to execution, and
the title was in some one else, in mitiga-
tion of damages. Snoddy v. Foster, 1
Met. 160.
(13) Sobstltotlon of plaiotiff for officer.
Where an officer levies an execution and
takes a bond of indemnity and returns
the same, if suit is brought against the
officer, and the plaintiff in the execution
be substituted as defendant, instead of
the officer, as provided in sec. 32, he may
plead in bar of the action the execution
of the bond. Gunn v. Gudehus, 15 B.
M. 447.
I 642. See notes 7, 8, sec. 641.
§643. (1) Clalmaot— action by on bofld.
The claimant or a purchaser may main-
tain an action on the bond, although the
officer has not returned it, or may main-
tain an action against the officer, if he
has become liable. Chisolm v. Gooch,
79 Ky. 468. See further, notes to sec.
4ti.
(2) Claimant may sue purchaser. The
execution of a bond does not deprive :i
claimant of his right to sue for a re-
covery of the property or its value.
Bethel v. Vanmeter, 9 R. 331, and see
sec. 211 and note thereto.
I 645. (1) Bond of claimant The claim-
ant's bond must be executed to the
plaintiff in the execution, and not to the
beneficial owner of the judgment and
execution, or the assignee thereof for
whose benefit the execution issues, or it
can not be proceeded upon by motion, as
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TITLE XIV] EXECUTIONS AND DISTRESS WARRANTS. 327
tion— claiming the property, who shall execute, with one or more
sureties sufficient for double its value, a bond to the plaintiff in the
execution, to the effect that, if it shall be adjudged that the property
or any part of it is subject to the execution, he will pay to the plaintiff
the value of the property so subject, and ten per cent thereon, not
exceeding the amount due on the execution, and ten per cent thereon.
{Form of bond, page 6^0; if defective nao one may be executed, sec. 682;
sureties may be sworn ; qualifications of, sees. 683, 684'>)
§ 646 [714] Appraisemeiit of property. For the purpose of taking the bond
mentioned in the last section, the officer shall select three disinter-
ested housekeepers, and administer to them an oath to make a fair
appraisement of each article of the property — whose appraisement, in
writing, shall be recited in the bond. {Form of appraisement, p. 640.)
% 647 [T161 Boad and appraisement — ^to what conrt returned. Subject to the
provisions of section six hundred and fifty-one, the bond, with the
appraisement annexed thereto, shall be returned to the circuit court
of the county in which the levy was made.
§ 648 [T16) Motion for judgment on bond — trial of. The party to whom the
bond is executed may move the court to which it is returned for a
judgment thereon against all or any of the obligors or their repre-
sentatives, having given to them ten days' notice of the motion.
The court shall direct a jury to be impaneled, and may cause such
provided in sec. 648. Lair v. Wilson, 13 the surety of tlie tenant on his bond for
Bush 589; Watson v. Gabby, 18 B. M. rent, by executliifr the bond provided in
658. this section. On such bond, when the
(3) Debt may be replevied after execotloii property levied on will not pay the rent,
of claimftofs boad. The execution of the the plaintiff in the execution is not en-
claimant's bond does not prevent the titled to any judgment. Smith v. Wells,
execution defendants from replevying 4 Bush 92.
the debt. Southern bank v. White, 1 (5) Rff hts of obllfors lo boad. When a
Duv. 290. sale of personal property, upon which an
(3) Estoppel of obligors in bond. Where execution has been levied, is suspended
a third person executed a forthcoming by the execution of a claimant's bond by
bond for property levied on, the bond re- persons not defendants in the execution,
citing that it was the property of the they may show any equitable cause
execution defendant, he could not after- against judgment, in whole or in part,
ward, without proof of fraud or mistake, on the bond. Williams v. Smith, 4 Bush
assert ownership and claim to the prop- 540 ; overruling Watson v. Gabby, 18 B.
erty by executing a claimant's bond, and M. 658. See Couchman v. Maupin, 78
thereby prevent judgment against him Ky. 33.
on the forthcoming bond. Sparks v. § 648. (1) DaaMfes to be ascertained. A
Shropshire, 4 Bush 550. judgment ordering the payment of dam-
(4) Execiitton of bond by landlord or ages by reference to the bond, without
snrety tor tenant. Sale under an execu- ascertaining and fixing the amount to be
tion levy on property of a tenant upon recovered, is erroneous. Smith v. Wells,
which his landlord has a lien for rent 4 Bush 92.
may be suspended by the landlord, or by ( 2 ) Effect of replevyinf the debt When
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328
EXECUTIONS AND DISTRESS WARRANTS.
[title XIV
issues to be tried as it may prescribe, and direct which party shall be
considered plaintiff in the issues. K the property, or any part of it,
be found subject to the execution, judgment shall be rendered in
favor of the plaintiff therein for the value of the property so subject
and ten per cent thereon, not exceeding the amount due on the exe-
cution and ten per cent thereon. An execution may be issued upon
the judgment forthwith, on which the same indorsement shall be
made as on the execution in virtue of which the property had been
seized. {See further as to mode of proceeding^ sees. 444 to 450.)
§ 649 [TIT] Appraisement may be objected to. Upon the trial of the
motion, either party may object that the property was not fairly
appraised ; and, thereupon, the jury trying the facts shall hear evi-
dence respecting, and find, the value of the property.
§ 650 [Tis] Bond does not discharge levy — motion to dischai^e. 1. The
giving of the bond mentioned in section six hundred and forty-five
shall not discharge the levy of the execution upon the property
claimed. But the oflicer may leave it, subject to the lien of the levy,
with the person in whose possession it was found, pending the pro-
the defendants in the execution replevy
it after the execution of the claimant's
bond, the obligors in the bond are liable
for the ten per cent damages and the
costs resulting from Ihe execution of the
bond; and if the replevin bond should be
quashed the plaintiffs in the execution
can proceed on the claimant's bond.
Southern Bank v. White, 1 Duv. 290.
(3) Estoppel. If a third party executes
a forthcoming bond reciting that the
property levied on is owned by execution
defendant he can not, without proof of
fraud or mistake, assert ownership to the
property and thereby prevent judgment
against himself on bond. Sparks v.
Shropshire, 4 Bush 650.
(4) Motion ofl bond— pleadiflfs. Tlie de-
fendants in the motion may be permitted
by the court to file an answer. This
Code, sec. 449, permits written pleadings
in proceedings of this character. Couch-
man v. Maupin, 78 Ky. 3.3. Can the mo-
tion be transferred to equity? 78 Ky. 33.
(5) Where the parties see proper to
commence the proceedings by pleadings
the case should be treated as if written
pleadings were required and the rules
applicable to pleadings obtain. Sargent
V. Farrar, 3 R. 212.
(6) Notice. In determining the suf-
ficiency of the notice required to be
given before motion on the bond is made,
it should be considered in connection
with the bond (Smith v. Wells, 4 Bush
92); and when a party appears to a notice
defective in form, and, without objec-
tion, makes defense to the merits, he
virtually admits that he is fully informed
of the claim asserted against him, and
can not thereafter object to the suf-
ficiency of the notice. Brown v. Gib-
son, 78 Ky. 602; Fleckham v. Black, 1
R. 164. Notice may be amended. Combs
v. Wallace, 3 R. 384.
(7) Plaintiff in motion is not required to
state in the notice or show upon the trial
that he sustained any loss by reason of
execution of bond or that he could not
have collected his debt otherwise than
by a sale of the property claimed. If
the property was subject to his execu-
tion when levy was made he is* entitled
to judgment. Combs v. Wallace, 3 R.
384.
§ 650. Execution off bond does not pre-
vent the sheriff from proceeding against
other property of the defendant to make
the execution. Southern Bank v. White,
1 Duv. 290.
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TITLE XIVJ EXECUTIONS AND DISTRESS WARRANTS. 329
ceeding on the bond; and may, in the meantime, proceed with the
execution against any other property of the defendant.
2. The obligor in such bond may, however, on ten days' notice
to the plaintiff in the execution, move the court to which the bond
is returned to discharge the same and release the levy under the
execution.* The provisions of sections six hundred and forty-eight
and six hundred and forty-nine shall, so far as applicable, govern
the proceedings upon such motion.
§ 6Sl (Ti»i Proceeding npoa execntioiis from inferior courts — appeal. The fore-
going provisions of this chapter shall apply to proceedings upon exe-
cutions issued by judges of quarterly courts or by justices of the
peace, with these exceptions :
1. Indemnifying bonds shall be returned with the executions
under which they are taken.
2. Claimants' bonds shall be returned to any justice of the peace
of the county, and motion thereon may be made before him, on five
days' notice. He shall cause a jury to be impaneled to find whether
the property is subject to the execution, subject to an appeal if the
value of the property exceed ten dollars.
§ 6S2 iTso] Distress warrants — preceding sections apply to. The preceding
provisions of this chapter shall also apply to proceedings upon dis-
tress warrants levied or about to be levied upon personal property
claimed by any person other than the tenant, his assignee or under-
tenant ; except that in such case the bond of the claimant of the
property, if it exceed the value of fifty dollars, shall be returned to
the circuit court of the county, and the motion thereon shall be made
in that court; and, if the value of the property do not exceed fifty
dollars, the bond shall be returned to some justice of the peace of the
county, and the motion may be made before him. Indemnifying
bonds in such cases shall be returned with the warrants under which
they were taken. (Tenant may sue plaintiff in warrant to recover prop-
erty taken by officer^ sec. S3 ; form of distress icarrant, page 64£)
§ 653 [7ai] Tenant may nive bond and discliarge levy — appraisement. If an
officer levy or be about to levy a distress warrant upon any property,
the tenant, his assignee or under-tenant may execute, with one or
§ 652. See notes to sees. G41, 643, 645 (2) Bond that may be executed. There is
and 648. only one mode in which a tenant or un-
§653. (1) Bond — estoppel A defend- der-tenant may discharge the levy of a
ant in a distress warrant who executes distress warrant upon his property, and
the bond authorized by this section is that is by executing the bond provided
estopped from denying that he is tenant, for in this section. Where a tenant exe-
assignee or under-tenant. Pegard v. Kel- cuted the bond provided in sec. 645, it
lar, 4 Met. 260. could not be enforced by motion, did not
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830 EXECUTIONS AND DISTRESS WAREANTS. [TITLE XIV
more sufficient sureties, to be approved by the officer, a bond to the
party in whose favor the warrant issued, to the effect that he will pay
to such party the amount of the rent specified in the warrant, with
ten per cent thereon, if the property be of the value of the rent so
specified ; or, if it be of less value, that he will pay to such party the
value thereof, and ten per cent thereon. For the purpose of taking
this bond the officer shall cause the property to be appraised as is
provided in section six hundred and forty-six. The appraisement
shall be annexed and referred to in the bond. Upon the giving of
the bond, the levy, if one have been made, shall be discharged, and
the bond and warrant shall be returned to some justice of the peace
of the county, if the amount claimed do not exceed fifty dollars ; and^
if it exceed that sum, to the clerk's office of the circuit court of the
county. {Form of bond and appraisem£nt, pages 64£^ 643,)
§ i»54 [Tas] Motion by plaintiff for jodgment— defenses allowed. The party to
whom the bond is executed may move the justice of the peace or the
court for a judgment thereon against all or any of the obligors or
their representatives, having given to them five days' notice of the
motion. The defendants may make defense upon the ground that
the distress was for rent not due in whole or in part, or was other-
wise illegal; or, if the property was levied upon, that it was by stat-
ute exempt from the levy ; and may make any defense, by way of
set-ofl^ or counter-claim, that is allowed by the Code in actions.
§ 655 iTss] Trial of motion by justice — appeal. If the motion be made
before a justice of the peace, he shall cause a jury to find the facts,
subject to an appeal if the amount exceed ten dollars.
§ 656:724j Trial of motion in court. If the motion be made in court, it
shall direct a jury to find the facts.
§ 657 [Tssj Judgment for rent and damages — execution. If the judgment be
against the defendants, it shall be for the rent due and ten per cent
thereon, not exceeding the amount secured by the bond. An execu-
tion may be issued forthwith.
§ 658 [7a«i Tenant may in part suspend warrant by bond. If the tenant, his
assignee or under-tenant contend that a part of the rent is not due,
he may suspend the distress warrant for such part by giving bond,
with good surety, for it — upon which proceedings may be taken as is
prescribed in the preceding sections.
discharge the levy, and the officer had a (3) Distress warrant may be replevied. A
right to retake and sell the property un- distress for rent may be replevied. Ky.
der the warrant. Grubb v. McCoy, 2 Stat., sec. 2310 ; Dean v. Ball. 3 Bush 502.
Met. 486. , § 654. See notes to sec. 648.
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TITLE XIV] EXECUTIONS AND DISTRESS WARRANTS. 331
§ 6S9 [TSTj Ancient trial of riglit of property alwlislied. Trials by juries sum-
moned by sheriffs or other officers, of the right of property taken by
them under execution or distress warrant, are abolished.
§ (M. Execution levy on joint property — proceedings. If an officer levy
an execution upon personal property held by the execution debtor
jointly with another person —
1. The officer shall not deprive such person, without his con-
sent in writing, of the possession of the property, except for the
purpose of having it inventoried and appraised, which he shall
cause to be done pursuant to the provisions of section six hundred
and forty-six.
2. The officer shall return the inventory and appraisement, with
the execution, to the office from which it issued; and shall state
in his return the facts connected with the levy, and the claim of
the joint owner.
3. The execution creditor shall have a lien upon the property
levied on, such as is given by law to an execution in the hands of
an officer ; and, upon the aforesaid return, the creditor may enforce
said lien by an action in equity.
4. If such creditor, at the commencement of his action or
afterward, shall file an affidavit that he verily believes the property
levied upon will be removed from the county or sold or otherwise
disposed of with intent fraudulently to defeat his lien, the court,
or the circuit judge thereof in vacation, or the presiding judge of
the county court, may make an order directing the officer to
possess himself of the property so levied upon, unless bond, with
approved security, shall be executed to the plaintiff in the execu-
tion, binding the obligors in said bond to have the same forth-
coming in obedience to any order or judgment of the court in the
action — which bond shall be taken by the officer and returned by
him to the court in which the action is pending.
§ 6M. (1) Joint property — how sob- force in equity. Vicory v. Strausbaugli,
iected. A bond executed by one joint 78 Ky. 425.
owner to suspend the sale of an interest (2) Partnership property. When part-
in joint property, which was levied on nership property has been levied on to
under an execution against the other satisfy an execution against one of the
joint owner, is not obligatory. No sale partners, a settlement of the partnership
of the property could have been made affairs should be made, and only the in-
under the execution. The levy only gave terest of the execution defendant sub-
to the creditor a lien, which he could en- jected. Williams v. Smith, 4 Bush 540-
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332 PROCEEDINGS BY SURETIES. [TITLE XIV
CHAPTER Vn.
PROCEEDINGS BY SURETIES.
[see further, as to sureties, KT. STAT., SBC. 4650.]
§ 661. Surety may sue principal or co-surety after debt matures.
§ 662. Mode of proceeding — provisional remedies.
§ 6il [Tas] Surety may sue principal or co-surety after debt matures* After
the- maturity of a debt or liability, an equitable action may be
brought by a surety against his principal to compel payment of it, or
by one who is jointly liable therefor with another to compel him to
pay so much of it as he may be equitably liable for as between him
and the plaintift'. {Action before debt due, sees. ^37 to 24S; when may
proceed by motion^ sec. 444-)
§ 662 [T80]Mode of proceeding — provisional remedies. 1. The creditor must
be made defendant to an action brought pursuant to section six hun-
dred and sixty-one, but shall not be liable for costs.
2. The provisions of chapter one, and of articles one and four
of chapter three, of title eight, shall apply to such action, except
so far as they are modified by section two hundred and forty-four,
section two hundred and forty -five, subsections one and two of
section two hundred and forty-seven, and section two hundred and
forty-eight, which are also made applicable to such action ; and
except, also, that the aflidavits mentioned in section one hundred
and fifty-three and section one hundred and ninety-six, instead of
stating the sum which the aflSant believes the plamtiflF ought to
recover, shall state the sum which the affiant believes the defendant
ought to pay.
§ 661. (1) Indorser against prior iodorser. tion can not be maintained by one surety
An action by the second indorser of a against a co-surety to recover money
bill of exchange against the first indorser paid for their principal unless the prin-
is substantially an action by a surety cipal is insolvent. Boiling v. Doneghy,
against his principal for indemnity. 1 Duv. 220; Lee v. Forman, 3 Met. 114.
Scott v. Doneghy, 17 B. M. 321. (4) Surety— payment by— what is. When
(2) LimitatioB. A surety against whom one surety executes his note to the cred-
a judgment is obtained, and who pays itor in discharge of their obligation, his
the debt, can not require his co-surety cause of action against his co-surety for
to contribute, if at the rendition of the contribution accrues. Stubbins v. Mitch-
judgment an action on the note against ell, 82 Ky. 535.
the co-surety would be barred by limita- (5) See further, as to sureties and co
tion. Shelton v. Farmer, 9 Bush 314: obligors, Ky. Stat., sec. 4659.
Cochran v. Walker, 82 Ky. 220. § 662. (1) Weadlngs — affidavit The
(3) Principal must be insolvent An ac- affidavit should state the amount the
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TITLE XV] PROCESS. 833
TITLE XV.
GENERAL PROVISIONS.
Chapter I. Process, 063.
II. Duties op clerks, 660.
III. Duties of sheriffs, 674.
IV. Miscellaneous provisions, 678.
CHAPTER.!.
PROCESS.
§ 663. Not to issue before petition flled.
§ 664. Holiday — process may issue and bond be taken on.
§ 665. Holiday or Sunday — issual and execution of process on.
§ 666. Defendant, when privileged from service.
§ 667. Officers to whom process may be directed.
§ 668. Court may appoint person to execute.
§ 663 [1*1] Not to issue before petitioo filed. No summons, nor order for
a provisional remedy, shall be issued by the clerk in any action,
before the plaintiff's petition therein is filed in his office.
§ 664 [Tss] Holiday — process may issue aod bond be taken on. It shall be no
objection to any process, writ, summons, affidavit or order for a
provisional remedy that it was issued, made or dated on a holiday ;
nor shall it be an objection to any bond given by or for any party to
an action, or taken by an officer in the course of the same, that it
was made or dated on any such day. {What is ^^ process'^ — ^'icrit,^^
sec. 732-26, 27; holidays, see Ky. StaL, sec, 2089.)
§ 665 [Tt*. T*«. TUj Holiday or Sunday — issual and execution of process on. A
summons, subpoena, notice or order for a provisional remedy may be
issued, given or executed on a holiday or Sunday, if the officer or
person having the notice or process believe, or if the plaintiff or some
other person make affidavit to the effect that the affiant believes, that
the notice can not be given, or that the process can not be executed,
after such holiday or Sunday. (Holidays, see Ky. Stat., sec. 2089.)
principal ought to pay and that it is § 664. (1) Distinction between holiday
just, and the attachment should be is- and Sunday, see Moore v. Hagan, 2 Duv.
sued by the clerk. Meyer v. Ruff, 13 R. 437.
254. (2) Holidays are January 1, February
(2) It is held in Bamberger v. Moayon, 22, May 30, July 4, Thanksgiving Day ;
91 Ky. 517, that the creditor in a pro- December 25. Ky. Stat., sec. 2089.
ceeding under sec. 237 is a necessary (3) Process may be execoted on holiday,
party, but failure to make him a party but if motion is made to quash process
does not render attachment void. because of its execution on a holiday,
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834
PROCESS.
[TITLB XV
§ 666 fTtf ] Defendant when privilef[ed from service. Subject to the provis-
ions of section five hundred, and forty-two, the defendant shall
have no privilege of exemption from the service of the process men-
tioned in section six hundred and sixty -five, except from an arrest,
by reason of his attendance at any muster, election or order of sur-
vey, or as a witness at any court or other place.
§ 667 [ee, tst] Officers to whom process may l>e directed. 1. Every process in
an action or proceeding shall be directed to the sheriflF of the county;
or, if he be a party, or be interested, to the coroner; or, if he be
interested, to the jailer ; or, if all these officers be interested, to any
constable.
2. The summons or an order for a provisional remedy, in an
action or proceeding, may, at the request of the party in whose
behalf it is issued, be directed to any of the officers named in the
first subsection w^ho is not a party to nor interested in the action.
(Elisor may perform duties of sheriff, Ky. Stat.^ sec. 1597 ; sheriff
may appoint bailiffs Ky. Stat., sec. 4^62.)
§ 668 iTss] Court may appoint person to execute. The court, for good
burden is on plaintiff to show necessity
for its service on that day. Paul v.
Bruce, 9 Bush 317.
§ 667. (1) Attachment— by whom to he
executed. An attachment must be exe-
cuted by the officer to whom it is di-
rected, and can not, like a summons, be
executed by an officer to whom it might
have been directed. Menderson v. Speck-
er, 79 Ky. 509.
(2) Deputy— executioa off process by. See
notes to sec. 078.
(3) Execution must be executed by
officer to whom it is directed. Johnson
V. Elkin, 90 Ky. 103.
(4) Execution must be directed to and
executed by the sheritf, unless he be a
party or interested. If he is interested
or a party, then it must be directed to the
coroner; if he is a party or interested, to
the jailer; and if he is interested or a
party, then to a constable, but none of
the above mentioned officers can execute
writ except in the order named; nor un-
less one first authorized to executo it is
disqualified. G'owdy v. Sanders, 88 Ky.
347.
(5) PlaintifTs rigbtto have process di-
rected. The plantiflf has an unlimited
right to have his original process direct-
ed at his option to any of the officers au-
thorized to execute it. Boaz v. Nail, 3
Met. 245.
(0) Presumption that officer did his dnty.
It will be presumed that an officer did
his duty, and executed process as the
law requires it to be done, unless the
process shows that he did not. Webber
v. Webber, 1 Met. 18; Case v. Colston, 1
Met. 145; Lewis v. Quinker, 2 Met. 284 ;
Anderson v. Sutton, 2 Duv. 480; Thomas
V. Mahone, 9 Bush 111. But this pre-
sumption does not arise when the proc-
ess has been executed by a special
bailiff. Lloyd v. McCauley, 14 B. M.
535; and see notes to sec. 48.
(7) Snmmons - service off by officer in-
terested void. Judgment in an action in
which the sheritT is plaintiff, although
not pecuniarily interested, upon sum-
mons executed by him, is void. Knott
V. .Tarboe, 1 Met. 504.
(8) Snmmons— who nay execute. A sum-
mons directed to the sheriff may be ex-
ecuted by a constable, or any officer to
whom it might have been directed. Sec.
47 ; Long v. Gaines, 4 Bush 353.
§ 6M. Speciai baiiiff appointed by court
to execute a summons must reside in the
county in which the defendant is sum-
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TITLE XV] DUTIES OF CLERKS. 335
cause, may appoint a person to serve a particular process or order,
and he shall have the same power to execute it which a sherift* has.
Ilis return must be verified by his affidavit. He shall be entitled to
the fees allowed to sheriffi for similar services.
CHAPTER n.
DUTIES OF CLERKS.
[see further, as to duties op clerks, KY. STAT., SEC. 372.]
»
§ 669. Indorsement to be made on papers.
§ 670. Return on summons to be entered— effect of.
§ 671. Oaths administered — affidavits— orders of survey.
§ 672. Bonds prepared by.
§ 673. Surety insufficient refused.
§ M9 iTt»] Clerk to iodorse time of filing papers and return of bonds. Tlie
clerk shall indorse, upon every paper filed in an action, the day of
filing it ; and, upon every order for a provisional remedy, and every
bond taken thereunder, the day of its return to his oflice. {Dejmty
may act for ^ sec. 678,)
§ 676 [T401 Return on summons to be ^entered— effect of. He shall, upon the
return of a summons served, enter in full upon the docket the return
of the officer executing the summons. The entry shall be evidence
of the service of the summons, if it should be lost.
§ 671 CT41] Oaths administered — affidavits — orders of survey. He may
administer any oath or take any affidavit required or permitted in
the progress of an action ; and shall make orders of survey, during
moned. A special bailiff residing in one summons is entitled to more weight than
county can not be appointed to serve a the recollection of defendant and officer
summons in another county. Lillard v. executing. Lemming v. Mullins, G R. 523.
Brannin, 01 Ky. 511. § 671. (1) Execntioa— error in fixias re-
§ 669. Clerk— deputy. A minor may turn day. An execution is not void be-
be appointed deputy clerk. Talbott v. cause of an error of the clerk infixing the
Hooser, 12 Bush 408. return day, nor is the clerk liable for
§ 670. (!) Sammoiis— entry of retnm on. making the execution returnable in less
The entry by the clerk of the service of time than that fixed by law. Goode v.
process is only evidence when the proc- Miller, 78 Ky. 235.
ess is lost. A statement in the judgment (2) Negligence—liability for. A circuit
that summons has been executed is no clerk is not liable for the loss of a debt
evidence of that fact. Robinson v. Mob- resulting from his failure to enter a
ley, 1 Bush 106. judgment, unless the omission was
(2) Summons having been lost clerk's caused by his gross negligence or fraud,
entry of return copied from return on Com. v. Thompson, 2 Bush 550.
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336 DUTIES OP SHERIFFS. [TITLE XV
vacation, upon the application of any party, after service of process,
and shall indorse the same on the petition, noting the date thereof
and the party for whom it was made ; and said orders of survey shall
have the same effect as if made by the court, if the party obtaining
the order give to his adversary notice that the order has been made
and of the time when it is to be executed.
§ 672 iTu: Boads prepared by. He shall prepare in a proper manner
every bond to be taken by or given before him or his court.
§ 673 [T4t: Sorety iasniffficient refused. He shall refuse any surety offered
in a bond to be taken by him who is, in his opinion, insufficient.
(Sureties may be sworn ; qualifications of^ sees. 683j 684*)
CHAPTER III.
DUTIES OF SHERIFFS.
§ 674. Time of receiving process to be indorsed.
§ 675. Buildings may be entered or broken, when.
8 676. Buildings may be entered or broken to execute order of arrest.
8 677. "Prevented by force" not sufficient return.
§ 674 rT««] Time of receiving process to l>e indorsed; The sheriff shall
indorse upon every summons, order of arrest or for the delivery of
property, or of attachment, or injunction, in his hands, the day and
hour of its reception by him. ( What officers word " sheriff'' embraces^
sees. 732-15.)
§ 675 [T48] Buildings may l>e entered or broken to execute process — ^when. A
sheriff having an order of attachment, or for the delivery of property,
may enter any building or inclosure containing the property, to take it;
(B) Not Mtlioriicd to receive money. Cir- script. But if the litigant is able to
cuit clerks, in their official capacity, are pay, although legally insolvent, the clerk
not authorized to receive money upon will not be required to deliver the tran-
judgments, executions or replevin bonds. script without payment of fees. Dunciin
Durant v. Gabby, 2 Met. 91; Chinn v. v. Baker. 13 Bush 514; Bates v. Foree, 4
Mitchell. 2 Met. 92. Bush 430 ; Collins v. Cleveland, 17 B. M.
(4) Transcripts— rights and duties of cleric 459 ; and see Houston v. Ducker, S6 Ky.
The Court of Appeals has the power to 123.
compel clerks to deliver transcripts of (5) Liability of clerk for failing to
records to the party desiring to appeal furnish transcript. See Houston v.
without the payment, or security for the Wandelohr, 12 R. 345.
payment, of the fees therefor, and the § 672. Appeal bonds — doty to prepare. It
fact that the party is insolvent, and can is the duty of the clerk of the court to
not secure the fee, will not authorize the which an appeal is taken to prepare the
clerk to refuse to make out the tran- appeal bond. Adams v. Settles, 2 Duv. 76.
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TITLE XV] MISCELLANEOUS PROVISIONS. 337
and, if necessary for this purpose, may break the building or inclosure,
having first publicly demanded the property. {See farther as to powers
of sheriff, Ky, Stat., sec, 4BS2.)
§ 676 [746] Buildiogs may be entered or broken to execute order of arrest. A sheriiF
having an ordfer of arrest may enter any house or inclosure in which
the party to be arrested may be, to arrest him ; and, if necessary for
this purpose, may break the house or inclosure, after having informed
any person therein of his object; or, if no person appear to whom
such information can be given, after having publicly demanded the
person to be arrested ; and, in either case, after having given suflicient
time for the house or inclosure to be opened. {See further as to power
of sheriff, Ky. Stat., sec. 4S82)
§ 677 [T4T] ** Prevented by force " not sufficient return. ^ It shall not be a suffi-
cient return of any process, that the oflicer was prevented by force
from executing it.
CHAPTER IV.
MISCELLANEOUS PROVISIONS.
§ 678. Deputy of ministerial officer may act for him.
§ 679. Authority conferred on several — majority may act.
§ 680. Affirmation may be substituted for oath.
§ 681. Mode of counting days between acts.
§ 682. New bond may be executed for defective one.
§ 683. Surety may be sworn affto his sufficiency.
§ 684. Qualifications of sureties.
§ 685. Discovery — action for and requisites of petition.
§ 686. Successive actions allowed on same contract.
§ 687. Actions unnecessarily multiplied, plaintiff to pay costs.
§ 688. Writ of ne exeat abolished.
§ 689. Provisional remedy — when two justices may grant.
§ 690. Execution of attachment bond enters appearance.
§ 691. Unknown defendant — how described in petition.
§ 692. Other liens to be stated in action to enforce lien— cross petition.
g 693. Action against surety after bankruptcy of principal.
§ 674. (1) Sheriff— powers of. A sheriff, (2) A constable, having in his hands a
having a writ of arrest, has authority distress warrant to execute, is not au-
for the purpose of executing it at any thorized to force a lock of an outer door,
time, whether night or day, to break nor to unlatch, nor to loose, the fastening
into any house or inclosure, first having of a window-shutter of an outer window
given the proper notice of the writ and to enter the house to make a levy,
his purpose to execute it. Phillips v. Jewell v. Mills, 3 Bush 62.
Ronald, 8 Bush 244.
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338 MISCELLANEOUS PROVISIONS. [TITLE XV
§ 094. Provisions as to sale of real property— indivisible property— other liens.
§ 605. Indivisible personalty may be sold— payment of excess.
§ 696. Time, place and terms of sale of property.
§ 697. Bond of purchaser and effect of — interest on.
§ 698. Purchaser of personalty — when entitled to it.
§ 699. Lien retained on real property sold— how released.
§ 678 [T4»i Deputy of mioisterial officer may act for him. Any duty enjoined
by this Code upon a ministerial officer, and any act permitted to be
done by him, may be performed by his lawful deputy.
§ 679 [Tso] Authority conferred oo several, majority may act An authority
conferred by law upon three or more persons may be exercised by a
majority of them concurring; and an act directed by law to be done
by three or more persons may be done by a majority of them con-
curring.
§ 688 (T51] Affirmation may l>e sulistituted for oatli. An oath required by
this Code may be substituted by the affirmation of a person who is
conscientiously opposed to taking an oath.
§ 681 [Tfts] Mode of counting days l>etween acts. If a certain number of
days be required to intervene between two acts, the day of one only
of the acts may be counted.
§ 682 [TBS] New iMud may l>e executed for defective one. If a bond provided
for by this Code be adjudged to be defective, a new and sufficient one
may be executed in such reasonable time as the court may fix, with
the same effect as if originally executed.
§678. (1) Ministerial officer— deputy. A §680. Corporal oatli synonymous with
Meputy marshal of the Louisville Chan- solemn oath. Com. v. Jarboe, 89 Ky. 143.
eery Court can appoint a special bailiff to § 681. Time— how compnted. ** The rule
execute a summons. Norman v. Nor- is well settled that where the computa-
man, 6 Bush 495 ; and a minor may be tion is to be made from the act done then
appointed deputy clerk. 12 Bush 408. the day on which it is done must be in-
(2) The proper rule is for the deputy eluded, but if to be made after or from
to sign the name and official character of the day itself, the day must be exclud-
the principal by himself as deputy, but ed." Moar v. Cov. Bank, 80 Ky. 305;
the omission to sign the name of the Chiles v. Smith, 13 B. M. 461 ; Handley
principal will not invalidate the return. v. Cunningham, 12 Bush 401 ; Wood v.
Humphrey v. Wade, 84 Ky. 391. Sec Tal- Com., 11 Bush 220.
bottv. Hooser, 12 Bush 408; 6 Bush 495. §682. (1) Defective bond. A traverse
(3) See further, notes to sees. 47 and 48, bond being defective in limiting the cost
as to execution and return of process, and damage to which the traverser
and Ky. Stat., sees. 4500, 4562, as to ap- might be subjected to one hundred dol-
pointment of special bailiffs and depu- lars, the court should have permitted a
ties by sheriffs. hew bond to be executed. Alderson v.
§ 679. Majority of persoas directed by Trent, 79 Ky. 259.
law to do a certain thing may act unless (2) If a party desiring to appeal at-
by express words or by implication a tempts in good faith to execute a bond,
contrary intention appears. Hewitt v. and does execute such a bond as is pre-
Craig, 86 Ky. 23. pared for him by the clerk, and it is de-
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TITLB XV] MISCELLANEOUS PROVISIONS. 339
§ M3 [T04] Sarety wmj be swoni as to his sofficiency. An officer whose
duty it is to take a surety in any bond provided for by this Code
may require the person offered as surety to make affidavit of his
qualifications, which affidavit may be made before such officer. The
taking of such an affidavit shall not exempt the officer from any
liability to which he might otherwise be subject for taking insuffi-
cient security. (Form of affidavit^ page 6S9; may refuse insufficient^
sec. 673.)
§ ^ [T56] Qualiflcatioiis of sureties. The surety in every bond provided
for by this Code must be a resident of this State, and be worth
double the sum to be secured beyond the amount of his debts, and
have property liable to execution in this State equal to the sum to
be secured. If there be t^yo or more sureties in the same bond they
must, in the aggregate, have the qualifications prescribed in this
section.
§ 685 [T5f] Discovery — action for aod requisites of petition. Ko action for
a discovery shall be brought, except that, if any person be liable,
jointly or severally with others, upon the same contract, an action
may be brought against any of them to obtain discovery of the
names and residences of the others who arc also liable. The petition
must be verified, and must state that the plaintiff has used due dili-
gence to obtain the information asked to be discovered, and that he
does not believe that the persons liable upon the contract, who are
known to him, have property sufficient to satisfy his claim. The
plaintiff must pay the cost, unless the discovery be resisted. (^5 to
action for discovery after return of ^^no property ^'^ see sec. 4B9.)
§ 686 [70T] Successive actions allowed upon same contract Successive
actions may be maintained upon the same contract or transaction,
if, after the former action, a new cause of action have arisen
therefrom.
§ 687. Actions unnecessarily multiplied, plaintiff to pay costs. In actions
which are unnecessarily multiplied by the plaintiff against one or
more persons, the plaintiff, though successful, must pay the costs.
fective, he should be allowed to execute (i) An attachment bond not taken by
a new bond. Adams v. Settles, 2 Duv. the clerk nor in the manner prescribed
76 ; Watters v. Patrick, 1 Bush 233 ; is not a defective bond that can be reme-
Manier v. Lindsey, 3 Bush 94. died or substituted by a new one. Home
(3) Where the appellant and his surety v. Mitchell, 7 Bush 131.
signed their names to a blank paper, § <^ Bill of discovery may be brought
with authority to the clerk to write their to compel the production of books or
names above the signatures, which he papers necessary in the preparation of a
failed to do, the appeal was properly dis- suit by one who has an interest in them,
missed ; a new bond could not be exe- Marion Nat. Bank v. Abell, 88 Ky.
cuted. Hargis v. Pearce, 7 Bush 234. 428.
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340 MISCELLANEOUS PROVISIONS. [tITLE XV
§ 688 [Tfts] Writ off ne exeat abolished. The writ of ne execUj as a remedy
in a civil action, is abolished.
§ 689 LTft9] Provisiooal remedy — when two Jostices may fraot If, pursuant
to this Code, a provisional remedy may be granted by the judge of
the court in which the action is brought, or the presiding judge of
the county court, it may be granted by any two justices of the pea(5e
of the county, if said judges be absent therefrom and such absence
appear by affidavit.
§ 690 [7«i] Execution of attachment l>ond enters appearance. In an action in
which an attachment has been granted, the execution by or for the
defendant of a bond whereby the attachment is discharged, or the
possession of the attached property is obtained or retained by Tiim,
shall be an appearance of such defendant in the action.
§691. Unlcnown defendant — how described in petition. In an action
against a person whose name is unknown to the plaintift' —
1. He shall be described in the petition and process as unknown
defendant.
2. If his name and place of residence, or either, be discovered
by the plaintiftV pending the action, the petition shall be amended
accordingly.
3. If his name and place of residence be unknown to the
plaintiflF, he shall be subject to, and be entitled to, the benefit of the
provisions of this Code concerning non-residents of this State.
§ 692. Other liens to be stated in action to enforce lien — cross-petition. The
plaintiff in an action for enforcing a lien on property shall state in his
petition the liens held thereon by others, making them defendants ; and
may ask for and obtain a judgment for a sale of the property to satisfy
all of said liens which are shown to exist, though the defendants fail
to assert their claims. Such defendants shall not, however, be allowed
to withdraw or receive any of the proceeds of such sale, until they
have shown their right thereto by answer and cross-petition. But
unless a personal judgment be prayed for in such cross-petition,
there need not be any summons thereon ; and it shall be treated
with reference to the time of answering thereto, as a set-off or
counter-claim. (See further y sec. 694, subsec. 3.)
§ 693. Action against surety after bankroptcy of principal. In an action for
the recovery of money in which the defendant may have given bond
§ 690. Appearance— see as to acts that a creditor who has no lien a party to the
will enter, notes 1-4, page 222, and note action. McMurtry v. the Montgomery
4, page 43. M. T. Co., 86 Ky. 206.
§ 692. Mortgagee is not required to make (2) See further, notes 3-5, 1 2-20» sec. 694>
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TITLE XV] MISCBLLANEOUS PROVISIONS. 841
with sureties, or for whom sureties may have given bond, pursuant
to the provisions of sections fourteen, two hundred and fourteen, two
hundred and twenty-one, or two hundred and fifty-eight ; or in which
an appellant may have given bond with sureties, or for whom sure-
ties may have given bond, pursuant to the provisions of section seven
hundred and twenty-four or section seven hundred and forty-eight —
if such defendant or appellant have thereafter become a bankrupt
under the laws of the United States, upon notice thereof from his
adversary being served on the sureties, pursuant to the provisions of
chapter two of title four, concerning the service of a summons, the
court shall decide whether or not anything, and, if anything, how
much, should have been adjudged against the defendant or appellant,
but for the bankruptcy ; and such decision shall be conclusive as to
the liability of the sureties ; but they shall not be liable upon a bond
given pursuant to section two hundred and fourteen, if property
released from an attachment by reason thereof, or its proceeds, have
lawfully come to the defendant's or appellant's assignee in bankruptcy.
§ M4 (sts. «oft] Provisions as to sales of real property — indivisible property —
otiier liens. 1. Before ordering a sale of real property for the payment
of debt, the court must be satisfied by the pleadings, by an agreement
of the parties, by affidavits filed or by a report of a commissioner or
commissioners, whether or not the property can be divided without
materially impairing its value ; and may cause it to be divided, with
suitable avenues, streets, lanes or alleys ; or without any of them.
2. If it be necessary to sell, for the payment of debt, a parcel of
real property which can not be divided without materially impair-
§ 694. (1) Appraisement of laad before the number of acres in the tract as de-
sale, Ky. Stat., sec. 2302; and a sale scribed in the pleadings, that a division
under decree will be set aside in the ab- can be had of the land, it is all that is
sence of a valid appraisement, and there required. Sears v. Henry, 13 Bush 413.
cannot be a valid appraisement unless (4) Allegationor proof as to divisibility
appraisers are sworn by some person au- is unnecessary if the petition so de-
thorized to administer an oath. Phelps scribes the land as to enable the court
V. Jones, 91 Ky. 244. to determine whether or not it can be di-
(2) Appraiser of land may purchase it vided without impairing its value. Cock-
in the absence of any facts showing that rill v. Mize, 11 R. 037; Lucy v. Hop-
he contemplated purchasing when ap- kins, 11 R. 907; McFarland v. Gamett,
praisement was made. Ison v. Kinnaird, 10 R. 91 ; and where petition states that
13 R. 569; Barlow v. McClintock, 10 R. land is divisible, judgment directing sale
894; see further, notes 7-14, sec. 696. of entire tract will not be reversed,
(3) Averment that laad Is divisible not oec- where no one is prejudiced. Fowler v.
essary. It is not necessary to allege in Kallam, 4 R. 988.
the petition that the property is divis- (5) Defect In title— how averred. When
ible or indivisible; if the court is satisfied a vender sues to enforce an executory
from the character of the boundary, or contract for the sale of land, averring
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342
MISCELLANEOUS PROVISIONS.
[title XV
ing its value, the officer shall sell the whole of it, though it bring
more than the sum to be raised ; and the court shall make proper
orders for the distribution of the proceeds.
3. The plaintiff in an action to enforce a lien on real property
shall state in his petition the liens, if any, which are held thereon
by others, and make the holders defendants ; and no sale of the
property shall be ordered by the court prejudicial to the rights of
the holders of any of the liens; and when it appears from the
petition or otherwise, that several debts are secured by one lien, or
by liens of equal rank, and they are all due at the commencement
.of the action, or become so before judgment, the court shall order
the sale for the pro rata satisfaction of all of them ; but if, in such
case, the debts be owned by different persons and be not all due,
the court shall not order a sale of the property until they all mature.
If all such liens be held by the same party, the court may order a
sale of enough of the property to pay the debts then due, unless it
that he is able, ready and willing to con-
vey the title and tenders a conveyance,
the vendee must either aver that the
vender has no title, or if the title is de-
fective, he must point out the defects.
Logan v. Bull, 78 Ky. 607; Collins v.
Park, 93 Ky. 0 ; and see note 20.
(6) Equity of redemption may be sold to
satisfy balance of judgment when the
land has not sold for two-thirds of its
appraised value. Crittenden v. Beck, 10
R. 822; Ky. Stat., sec. 2365.
(7) Where a purchaser at judicial
sale, whether he be the defendant or a
stranger, fails to pay his sale bonds and
the land is again sold, he has no right to
redeem land from second sale. McKee
V. Stein, 91 Ky. 240.
(8) Where the land is redeemed by the
debtor the plaintiff can not afterward
have an order of resale to satisfy the un-
paid portion of his judgment. Makib-
ben v. Arndt, 88 Ky. 180.
(9) Redemption right of defendant.
Ky. Stat., sec. 2362.
(10) Pees of commissioner for making
sales and collecting and paying out
money. Ky. Stat., sec. 1740; judgment
should allow fees. Wade v. Cov. City
Bank, 2 R. 231.
(11) Interest may Im computed on princi-
pal to date of judgment, and judgment
be rendered for Aggregate amount with
interest thereon. Turpi n v. Turpin, 4 R.
438 ; Ky. Stat., sec. 2220.
(12) Lien notes not ali due. In an action
to enforce a vender's lien, if some of the
notes are not due and it appears from the
petition that the property is not suscep-
tible of advantageous division, no part
of it should be sold until all the notes
fall due, although they are all held by
the same person. Leopold v. Furber, 84
Ky. 214 ; Faught v. Henry, 13 Bush 471 ;
Gentry v. Walker, 93 Ky. 405 ; see fur-
ther, note 21.
(13) Allegation that a sale at once of
the entire tract was necessary to prevent
loss to the creditor did not authorize a
sale to pay notes not due. Burton v. Mc-
Kinney, 6 Bush 428.
(14) Where the plaintiff held two
notes, one of which was not due, it was
erroneous to order a sale of the land to
pa}' the note due, subject to a lien for
the note not due. Eminson v. Risque, 9
Bush 24.
(15) Where several lien notes are held
by same party, sale of enough land to
pay those due maj' be ordered unless it
appears land is not susceptible of advan-
tageous division, or for other reasons a
sale would cause a sacrifice. Ward v.
Coffey, 11 R. 339.
(16) When all the notes are executed
to the plaintiff, the presumption is that
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MI6CELLANB0U6 PROVISIONS.
343
appear that it is not susceptible of advantageous division ; or that,
for some other reason, the sale would cause a sacrifice thereof,
or seriously prejudice the interests of the defendants.
§ M5. lodivisible personalty may be sold— payment of excess. If it be neces-
sary to sell, for payment of debt, one or more parcels of personal
property which, in the opinion of the officer making the sale, can not
be divided without materially impairing the value thereof, he shall
sell the whole of said property, though it bring more than the sum
to be raised ; but he shall have no commission on the excess. The
excess shall be paid to the defendant, or the bond therefor shall be
payable to him.
§ M6. Time, place and terms of sale of property. Every sale made under
an order of court must be public, upon reasonable credits to be fixed
he is the owner of the notes not due, and
it is not necessary to allege that he has
not parted with them. Ward v. Coflfey,
11 R. 339.
(17) Parties. A sale of land under an
attachment subject to the vender's lien
without making the vender a party is
erroneous. Mills v. Brown, 2 Met. 404.
(18) Persoaal jodsmeat Where the ven-
der seeks both a personal judgment and
an enforcement of his lien, he is entitled
to a personal judgment if allegations of
petition authorize it, although he may
not be entitled to an enforcement of his
lien. Bullock v. Graham, 87 Ky. 120;
and a personal judgment may be ren-
dered, although defendant is not sum-
moned in county where action is pend-
ing. Collins V. Park, 93 Ky. 0.
(19) Pteading. Allegation that lien was
reserved on land to secure payment of
note, averred to have been executed for
purchase money, is unnecessary. Cockrill
v. Mize, 11 R. 637; see further, note 3.
(20) The plaintiff should set out the con-
tract, and if he has not already conveyed
must state the character of title that he
agreed to make and that he is ready and
willing to make it; if he has conve^-ed
the land he should state the fact. Bul-
lock V. Graham, 87 Ky. 120: Calvin
v. Duncan, 12 Bush 101 ; see further,
note 5.
(21) Sale of eaoogh land to pay nacon-
tetted part of aote error. Where a part
of a lien note is contested, it is error to
sell enough of the land to pay the uncon-
tested part, unless the plaintiff waives
his lien as to the contested part ; but a
personal judgment is proper. Sears v.
Henry, 13 Bush 413 ; see further, note 12.
§ m. (1) Advertiseoieatofsale. If the
commissioner fails to advertise the sale
of land as directed in the judgment, and
the land is sold for less than its value,
the sale will be set aside on motion of the
defendant. Williams v. Woodruff, 1
Duv. 257.
(2) A sale advertised to take place at
1 o'clock was set aside because made be-
fore that time, it appearing that the
property brought less than its value, and
that persons who desired to bid for it
and pay its value were present at the
hour advertised. Williams v. Jones, 1
Bush 621.
(3) The presumption is that commis-
sioner performed properly his duty in
advertising land, but this presumption
is rebutted when he does not personally
know how land was advertised. Harris
V. Gunnell, 10 R. 419 ; Zazio v. Samuels,
4 R. 987. '
(4) Commissioner should post adver-
tisements himself or should be able to
state that property was properly adver-
tised; the practice of getting others to
post advertisements is condemned. Price
v. Simpson, 8 R. 327.
(5) Appeal may be taken by purchaser
from judgment setting aside sale, al-
though land is worth less than one hun-
dred dollars. Hughes v. Swope, 88 Ky.
254 ; and see further, notes to sec. 734.
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344 MISCELLANBOUS PROVISIONS. [TITLB XV
by the court, not less, however, than three months for personal, nor
six months for real, property ; and shall be made after such notice of
the time, place and terms of sale as the order may direct; and, unless
the order direct otherwise, shall be made at the door of the court-
(6) Attoroey in case can not act as com-
missioner In selling land in same case.
Adklnson v. Handle, 93 Ky. 310.
(7) Appraisement It is not necessary
that appraisers should go upon the prop-
erty to appraise it if they have such
knowledge of it as enables them to fix its
value. Zabel v. Masonic Bank, 13 R. 197.
(8) The court will presume that ap-
praisers performed in a proper manner
their duties. 13 R. 197.
(9) An appraiser is not disqualified
from purchasing the land at the sale.
Ison V. Kinnaird, 13 R. 569.
(10) Failure to have land appraised is
ground for setting sale aside, and the
court will not inquire whether or not
property brought two-thirds of its value;
nor can debtor waive the failure to have
property appraised to the injury of cred-
itors who might have equity of redemp-
tion sold. Cantrill v. Perry, 7 R. 446.
(11) Mere error of judgment on part
of appraisers is not sufficient to set sale
aside. Harris v. Gunnell, 10 R. 419;
unless it appears that the valuation was
procured by fraud or resulted from
mistake other than the mere judgment
of the appraisers. Lawrence v. Edelen,
6 Bush 55 ; Knight v. Whitman, 6 Bush
51 ; Vallandingham v. Worthington, 85
Ky. 83.
(12) Appraisement is only necessary
when land is sold for payment of debts.
Graves v. Long, 87 Ky. 441 ; Wooldridge
v. Jacob, 79 Ky. 250 ; Southwick v.
Gruezenbach, 12 R. 263.
(13) Appraisers must be sworn by some
person authorized to administer an oath,
or appraisement will be void. As to
right of special commissioner to admin-
ister an oath. Phelps v. Jones, 91 Ky. 244.
(14) See Ky. Stat., sec. 2362, for pro-
visions as to appraisement.
(15) Conduct of sale. Time allowed to
execute bonds is a matter very largely
in the discretion of the commissioner.
Hughes V. Swope, 88 Ky. 254; and see
Passmore v. Moore, 15 R. 107.
(16) Commissioner is bound to accept
all bids and sell the property to the high-
est bidder, giving him reasonable time
to execute bond. Morton v. Moore, 4
R. 717.
(17) Where commissioner, after be has
knocked off property, discovers that he
has made a mistake, he may at once re
sell the property. Head v. Clark, 88
Ky. 362.
(18) Although the Judgment did not
direct the commissioner to sell the land
subject to the wife's contingent right of
dower, the commissioner properly sold
it in that way. Robinson v. Robinson,
11 Bush 174.
(19) Even where the judgment fails
to so direct, the commissioner should
offer to sell less than the entire property
if it is susceptible of division. Mc-
Laughlin V. Schneid, 11 R. 648.
( 20 ) In advertising the land and con-
ducting the sale, the commissioner
should follow the directions of the judg-
ment. Jarboe v. Colvin, 4 Bush 70; Hahn
V. Pindell, 1 Bush 538.
(21) The judgment failed to designate
the place of sale, and the commissioner
sold the property at a place some miles
from the court-house. The sale having
been reported and confirmed was not
void, however erroneous it might have
been. Revill v. Olaxon, 12 Bush 558.
See Dawson v. Litsey, 10 Bush 408;
Doughty V. Moss, 1 Bush 161; Perry v.
Seitz, 2 Duv. 122; Dunn v. Salter. 1 Duv.
342 ; see further, note 31.
(22) Commissioner may employ an
auctioneer to cry the sale, but the sale
must be made under the immediate di-
recti(m of and in the presence of the
commissioner. Noland v. Noland, 12
Bush 426.
(23) In making sales the commissioner
is invested with reasonable discretion,
and may exercise his best judgment
touching matters that the judgment does
not give specific directions about. Head
V. Clark, 88 Ky. 862; McLaughlin v.
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TITLE XV] MISCELLANEOUS PROVISIONS. 345
house of the county in which the property, or the greater part thereof,
may be situated; and the notice of sale must state for what sum of
money it is to be made. (See as to appraisement of property before sale^
Ky. Stat.y sec. 2S6S.)
Schneid, 11 R. 648; Hughes v. Swope, 8
R 256.
(24) Erroneoas Iwlgneot The court
may set aside a sale although the judg-
ment has been followed in making it.
Yanmeter v. Vanmeter, 88 Ky. 448.
(25) Error of commiisioiier in not selling
land in order directed by judgment does
not render sale void, although, if ex-
cepted to in proper time, sale should be
set aside. Beard v. Morris, 14 R. 97.
(26) ludeqoacy of price. An advance
bid of $1,800 upon a sale made for $5,650
is not sufQcient grounds for setting aside
sale. Bean v Johnson, 13 R. 36.
(27) A resale should not be ordered,
nor should the bidding be opened, upon
an increased offer of ten per cent. A
sale will not be disturbed for mere in-
adequacy of price, unless there has been
such a sacrifice of the property as to im-
port fraud. There must be either fraud
or misconduct in some one connected
with the sale, some surprise or misappre-
hension on the part of those interested,
or of the officer who conducts the sale,
or some irregularity in the proceedings,
or other circumstances attending it con-
ducing to show unfaimesQ, before the
chancellor will refuse to confirm the sale.
Stump v. Martin, 9 Bush 285.
(28) Mere inadequacy of price is not
alone sufficient to set aside a judicial
sale, but when the price bid is greatly
disproportioned to the actual value of
the property, only slight additional cir-
cumstances are required to Justify and
make it the duty of the chancellor to set
it aside ; and where there is any fact
connected with the sale from which
fraud may be presumed, or when the de-
fendant, by casualty or misfortune, has
been prevented from appearing in the
action or taking steps to avoid a sacrifice
of his property, it should be set aside.
Bean v. Hoffendorfer, 84 Ky. 685.
(29) Jfldsmeot— Mffkiency of. The judg-
ment should describe the propert}' to be
sold, so that the commissioner may
know from it what property he is direct-
ed to sell. Faught v. Henry, 18 Bush
471 ; Posey v. Green, 78 Ky. 162 ; Runyon
V. Darnall, 10 Bush 67 ; 9 Bush 665 ; 12
Bush 426; Johns v. Brown, 7 R. 446.
(30) An order that failed to give any
direction as to the time and place of
sale, except to direct the commissioner to
post notices of time, terms and place of
sale, as sheriffs are required to do before
selling land under execution, was suffi-
cient. Barnes v. Jackson, 85 Ky. 407.
(31) Place of sale. Unless judgment
otherwise directs, sale of real estate
should be made at court-house door.
85 Ky. 407 ; and see note 21.
(32) Pvrchaier is entitled to notice of
motion to quash sale. Butts v. Alder-
son, 12 R. 443; see further, notes 19-23,
sec. 697.
(83) A purchaser can not have a sale
set aside because the commissioner did
not advertise the property as required by
law. Watson v. Violett, 2 Duv. 332 ; nor
because the land is not sufficiently de-
scribed in the judgment. Sullivan v.
Berry, 83 Ky. 198.
(34) A purchaser at commissioner's
sale excepted to the confirmation of the
report of sale on the ground that there
had been puffing and by-bidding at the
sale, but was held to have waived his
right to object by executing sale bonds
after obtaining knowledge of all the
facts connected with the sale. Robinson
V. Robinson, 11 Bush 174.
(35) A bidder will be required to take
the property, although the building on
it has been destroyed by fire before the
sale is confirmed, or he is placed in pos-
session ; and may be compelled by rule
to comply with the terms of his pur-
chase. Vance v. Foster, 9 Bush 389.
(36) When a sale is set aside at the in-
stance of the owner, the purchaser who
has been guilty of no fault, and not a
party to the suit, is entitled to a judg-
ment for his costs and reasonable attor-
ney fees expended in resisting a motion
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346
MISCELLANEOUS PROVISIONS.
[title XV
§ 697. Bond of purchiser and effect of — interest on. 1. The purchaser of
property sold under an order of court shall give bond for the price,
with good surety approved by the officer making the sale, payable to
him or to the person entitled to receive the money, as the court may
direct; or, if the court make no order on the subject, they shall be
made payable to the officer.
2. They shall bear interest from date at the rate the judgment
bears.
3. They shall have the force of judgments; and on executions
issued upon them no replevy shall be allowed, and sales shall be for
cash. (Fomi of hond^ page 6Z6.)
to quash the sale. Egard v. Chearnly, 1
Bush 12 ; but this case is overruled by
Vanmeter v. Van meter, 88 Ky. 448.
(37) Report of sale. Slight variation
between description of land in report
and judgment is not sufficient to set sale
aside. Stephens v. Smith, 7 R. 44.
(38) Order confirming report of sale is
final and can not be set aside after the
term except for some of the causes men-
tioned in section 518. Kincaid v. Tutt,
88 Ky. 392.
(39) Sale of more land thaa ordered by
judgment is error and sale will be set
aside. Blakey v. Abert, 1 Dana 185;
Gathright v. Hazard, 17 B. M. 501; but
after sale is confirmed it will not be void.
Dawson v. Litsey, 10 Bush 408; and see
as to waiver of error In selling excess.
Simrall v. Jacobs, 14 B. M. 511.
(40) Terms of sale. Creditor who has
procured judgment can not complain
that sale was made on three months'
time. Stephens v. Smith, 7 R. 44.
(41) Vacation of order confirmlns sale.
See note 20, sec. 518.
§ 697. (1) Collection of bonds may be en-
joined where purchaser was induced not
to file exceptions to report by state-
ments of the plaintiff. Morrow v. Wes-
sell, 8 R. 261 ; and see Wright v. Under-
wood, 9 R. 712.
(2) Purchaser may be required by rule
to comply with terms of sale. Brassfield
v. Burgess, 10 R. 660 ; and the chancel-
lor may order land resold as the property
of the purchaser when he fails to execute
bonds. Dean v. Gritton, 13 R. 99.
(3) Damases may be recovered by defend-
ant against persons who procured a sale
of his property under a decree afterward
reversed. Hays v. Griffith, 85 Ky. 375.
(4) Defective title. Where purchaser at
judicial sale obtains the title which the
court by its decree proposed to sell, he
can not have an abatement of the pur-
chase price because the court is not able
to make him a clear title to part of the
land. Preston v. Breckinridge, 86 Ky.
619.
(5) There is no warranty of title in
judicial sales, and after the sale has been
confirmed, and no fraud practiced on the
purchaser by the creditor to induce the
purchase, or warranty of title, no relief
will be granted and no deduction made
from the purchase price because of liens
on the land which the purchaser will be
compelled to pay. If, before the sale is
confirmed, or during the term at which
it is confirmed, the purchaser discovers
a defect in the title and applies to the
chancellor he will be granted relief.
Farmers' Bank v. Peters, 13 Bush 591.
(6) Purchaser is entitled to an abate-
ment of the purchase price to the extent
of the value of land that he bought but
did not get. Akin v. Underwood, 11 R.
757 ; and see notes 8, 16.
(7) The general rule does not apply to
a purchaser who is induced to make
purchase by the misrepresentations of
the creditor or person making sale as to
the condition of the title, when he could
not discover condition of title until after
confirmation. Williams v. Glenn, 87 Ky.
87; and see Wright v. Underwood, 9 R.
712.
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TITLE XV]
MISCBLLANBOUS PROVISIONS.
347
§ ^98. Pnrchiser of personalty — when entitled to it The purchaser of per-
sonal property sold under an order of court shall be entitled to it,
upon complying with the terms of sale.
§ M9. Lien retained on real property sold — how released. A lien shall exist
on real property sold under an order of court, as security for the pur-
chase money ; and, upon payment thereof, the clerk shall release the
lien on the margin of the record of the deed in the office of the clerk
of the county court.
(8) Where the purchaser acquires no
title he may recover of the debtor what
he has paid for the land. Williams v.
Glenn, 87 Ky. 87; and see notes 6, 16.
(9) Purchaser who has been evicted
may recover on the warranty of title in
deed to person whose land he bought at
the sale. Thomas v. Bland, 91 Ky. 1.
(10) Duty of conrt The court should
ascertain that the right of redemption
does not exist before ordering a deed or
writ of possession. Rose v. Taylor, 8 R.
182.
(11) Exceptions to report Time report
shall lie over for exceptions is not pre-
scribed ; and in Rose v. Taylor, 8 R. 182.
the court held that it was not error to
confirm on February 5th ** a report filed
February 3d," there being no exceptions.
(12) Exceptions to a report admit
everything not excepted to. Taylor v.
Young, 2 Bush 428.
(13) Appeal lies to CJourt of Appeals
from order overruling or sustaining ex-
ceptions to report of sale. See notes,
sec. 734.
(14) Execntion for amonot of two bonds,
both due and payable to commissioner,
may be issued. Poor v. Hudson,^4 R. 349.
(15) Improvements. Purchaser who
erected improvements even before con-
firmation of sale is entitled to compen-
sation for them upon reversal of order
confirming sale, but should be charged
with rente. Hayden v. Smith, 5 R. 343.
a6) Mistake in quantity of land sold—
relief for. Where there is a mistake as
to the quantity of land sold at a judicial
sale, the chancellor will, in a subsequent
action, afford relief, if the mistake be
such that relief would be granted if the
sale had been a private one. Miller v.
Craig, 83 Ky. 623 ; and see notes 4-10.
(17) Power of commissioaer after sale.
When the commissioner has sold the
property and accepted the bonds for the
purchase price, his duties, so far as the
sale is concerned, are at an end, and
nothing remains for him to do but to re-
IX)rt the manner in which he has dis-
charged his duty to the court. He can
not after accepting the purchaser's bonds
demand additional security. If the bond
is insufficient, that fact should be
brought to the attention of the court,
and the court may require additional se-
curity before confirming the sale. Rea-
mer V. Judah, 13 Bush 206 ; and see notes
16-23, sec. 696 ; and notes 1-9, sec. 697.
(18) Purchaser— rishts and liabilities. A
purchaser at a sale made under a void
judgment does not acquire any lien on
the property sold for the amount of the
debt paid by him when the sale is set
aside. Grigsby v. Barr, 14 Bush 330;
and see notes 4-10 and 16.
(19) Purchaser and sureties who fail to
pay bonds and surrender property for
sale are liable for the difference between
price at first and second sale. City of
Lou. V. Kaye, 10 R. 160.
(20) Purchaser is entitled to notice of
motion to quash sale bond because tho
sureties are insufficient. Butts v. Alder-
son, 12 R. 443.
(21) Rents — rifht of purcliaser to. A
purchaser at a judicial sale is entitled to
rent from the date of the confirmation of
the sale. Ball v. Bank, 80 Ky. 501 r
Taliaferro v. Gay, 78 Ky. 496 ; but not
to rents between date of sale and con-
firmation. Brown v. Berkley, 3 R. 469 ;
Elliott V. Bush, 3 R. 466.
(22) Reversal— effect of. The reversal
of a judgment under which a sale is
made does not affect the title of the pur-
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348 QUARTERLY, POLICE AND JUSTICES* COURTS. [tITLB XVI
TITLE XVI.
QUARTERLY, ^POLICE, COUNTY AND JUSTICES' COURTS.
[jUBISDiCriON OF THS8B COURTS, SBB PAGE 547.]
Chapter I. Mode op proceeding in, 700.
11. Appeals from their judgments, 724.
CHAPTER I.
MODE OF PROCEEDING IN.
§ 700. Code regulates proceedings in.
§ 701. Process—to whom directed.
§ 702. Duties and powers of judge or justice as clerk.
§ 703. Clerk of quarterly court — duty of county clerk.
§ 704. Only one docket to be kept.
§ 705. Pleadings may be oral when — statement to be filed.
§ 706. Time summons to be served to authorize trial.
§ 707. Proceedings when action called for trial.
§ 708. Evidence in equitable actions — how taken. .
§ 709. Subpoena — how served.
§ 710. District in which action to be tried.
§ 711. Place of trial if more than one defendant.
§ 712. Place of trial in action against transient defendant.
§ 713. Jury trial — when may be demanded.
§ 714. Time in which new trial may be granted.
§ 715. Justice to keep indexed records.
§ 716. Interrogatories may be filed by either party.
§ 717. Judgment against party refusing to testify.
§ 718. Last two sections apply to appeals.
§ 719. Lost or destroyed judgment may be renewed.
§720. Set-off or counter-claim in excess of jurisdiction.
§ 721. Trial of provisional remedy.
§ 722. Land can not be levied on under execution from.
§ 723. Land — how sold when execution returned no property.
§ 700 :8««] Code regulates proceeding in. The provisions of this Code
shall regulate the proceedings in civil actions in quarterly courts,
chaser at the sale, although he may be and if the exceptions are overruled to
the plaintiff. The sale can not be appeal. Yocum v. Foreman, 14 Bush
quashed. When the sale is confirmed 494 ; Earl v. Porter, 2 R. 316 ; and see
the chancellor loses all control over it, Yanbussum v. Maloney, 2 Met. 550; and
except during the term at which the or- see as to right of debtor to damages for
der is made, and the only remedy of the wrongful sale, note 3.
party complaining is to except to the (23) Rule that purchaser of land is not
confirmation, if there is sufficient cause, affected by reversal of judgment does not
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TITLE XVl] QUARTERLY, POLICE AND JUSTICES* COURTS. ^ 349
county courts, police courts, city courts, mayors' courts, and courts
of justices of the peace, except as is provided in this chapter. {As to
jurisdiction of quarterly and justices' courts, see page 5^7 ; transfer to
circuit court of actions involving title to real estate, Ky. Stat., sec.
1052.
§ 761 [8«s] Process — ^to whom directed. A summons, order for a provis-
ional remedy and other process, from quarterly courts or county
courts, shall be directed to the sheriff, coroner or a constable, at the
option of the plaintiff; those from police, city and mayors' courts
shall be directed to the marshal or a constable ; and those from courts
of justices of the peace shall be directed to a constable ; or to a
special agent appointed by the justice, by an indorsement on the
process, upon an affidavit of the plaintiff or his agent being filed
before the justice, to the effect that the process can not be executed,
according to the belief of the affiant, unless such special agent be
appointed ; but such process may be served by any officer or person
who is authorized by this Code to serve a summons. {Officers who
can serve summons, sec. 667; form of summons, page 684; of subpoena,
page 643; qf execution, page 638; of distress warranty page 64£; of
attachment, page 6S4^)
§ 702 [8S4] Duties aod powers of jad|;e or justice as cleric. The duties and
powers enjoined and conferred by this Code upon clerks shall
devolve on the judges or justices who are by law required to act as
clerks of their courts.
§ 703 (•<•! CierlK of quarterly coart — duties of coaoty cleric. 1. The presid-
ing judge of the quarterly court shall be the clerk of such court.
2. The county judge may, by an order entered of record in the
quarterly court, empower the county clerk to act as clerk of the
quarterly court ; and, upon such order being entered, the clerk
shall be authorized to issue any process of the quarterly court, as
fully as the judge might do, acting as clerk of such court. And
apply when the land ordered to be sold (25) Time to execute bonds is a matter
is purchased by the plaintiff, and it ap- largely in the discretion of the commis-
pears that defendant does not owe debt sioner. Hughes v. Swope, S R. 256 ; and
to satisfy which land was sold, and that see further, as to duty and discretion of
the land, in fact, was not owned by de- commissioner, notes 15-23, sec. 696.
fendant. Baker v. Baker, S7 Ky. 461 ; § 701. Sheriff may execnte process. A
and see Payne v. Johnson, 95 Ky. 175, sheriff can execute an attachment or
for other exception to rule. other provisional remedy from a justice's
(24) The fact that judgment is re- court. Turner v. Howard, 2 Duv. 112;
versed before sale is confirmed is not of and may execute an execution as word
itself sufficient grounds to set aside sale. ** process " includes execution. Gk>wdy
Musgrave v. Parrish, 11 R. 573. v. Sanders, S8 Ky. 346.
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850 QUARTERLY, POLICB AND JUSTICES' COURTS. [tITLB XVI
the county clerk issuing such process shall be entitled to the same
fees, and subject to the same responsibilities, as the judge would
have been.
3. Such order shall not prevent the judge from acting as clerk of
the quarterly court in any case in which he may choose so to act.
4. If no such order be made, the county clerk shall, in the
absence of the county judge from his office, act as clerk of the
quarterly court, in the same manner as if such order had been
made.
5. The county clerk shall, at the commencement of each term of
the quarterly court, deliver to the presiding judge all process of
such court returned to him, and all papers filed with him relating
to actions pending in such court.
§ 704 [8s«] Only ooe docket to be kept Only one docket is required to be
kept, on which shall be entered all the actions and motions as they
shall be returned.
§ 705 [8ST] Pleading may be oral when — statement to be filed. If the matter
in controversy do not exceed fifty dollars, the pleadings in the action
may be oral and without verification. But before the summons is
issued the plaintift* shall file in the court the account, or the written
contract, or a short written statement of the facts, on which the
action is founded. {The forms of pleadings commencing on page 596
will anstoer in cases in quarterly and justices' courts when written plead-
ings are required.)
§ 706 [sss] Time summons to be served to anthorize trial. In the actions
named in the last section, the service of the summons five days before
§705. (1) Pleadings — when to be In tho amount demanded, and the amount
writinf. If the matter in controversy stated in the warrant is the amount in
exceeds fifty dollars the pleadings must controversy. Burbage v. Squires, 3 Met.
be in writing, and where the plaintiff 78.
sues for an aggregate amount, made up (3) In a suit in a justice's court the
of interest and principal together, ex- plaintiff filed a statement claiming fifty-
ceeding fifty dollars, as where he asks five dollars, but the amount claimed in
judgment for forty-five dollars and eight the warrant was only twenty-five dollars,
dollars interest thereon, the pleadings and the court held that the amount
must be in writing. Bracy v. Bracy, 13 claimed in the warrant and not in the
Bush 153 ; but see Puff v. Hutcher, 78 statement determined the amount in
Ky. 14G ; note 1 to sec. 726. controversy and the question of juris-
(2) The written statement of facts on diction. . 3 Met. 78.
which the action is founded need not (4) Interest due upon a debt at the
contain a demand for the relief to which time the action is commenced constl-
the plaintiff considers himself entitled, tutes a part of the amount in controversy,
nor the amount demanded by him, and Orth v. Clutz, 18 B. M. 223; Wigginton
if it does state the amount it is mere v. Moss, 2 Met. 38; Fidler v. Hall, 3
surplusage. The warrant should state Met. 461.
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TITLE XVl] QUARTBRLY, POLICE AND JUSTICES* COURTS. 351
the time of trial shall authorize a trial and judgment. If the matter
in controversy exceed fifty dollars, the service of the summons ten
days before its return day shall authorize a trial and judgment,
whether the proceedings are ordinary or equitable. {Forms of judg-
ments^ page 647)
§ W [ss«j Proceediofs when action called for trial. Upon the calling of an
action for trial, if the summons have been served in due time, the
parties must proceed forthwith to form an issue and try the case,
unless the court give further time, or grant a continuance.
§ 708 I8S01 Evidence in equitable actions — bow taken. In equitable actions,
the parties may either take the depositions of witnesses or examine
them orally in court.
§ 70f [•«!] Subpoena — how served. A subpoena may be served by show-
ing it to the witness and informing him of the substance of it, with-
out delivering to him a copy or ticket.
§ 710 iMsj District in which action to be tried. If the defendant reside in
the county in which the summons is issued, it shall be returned for
trial in the district of his residence, unless he otherwise consent in
writing, signed by him and indorsed on the summons ; or, unless the
justices in such district be interested or refuse to act, in which case
it shall be returned in an adjoining district. If it be issued by the
judge of the quarterly court, it shall be returned before him [unless
the defendant, or defendants, all reside in one district and there be
an acting justice of the peace and an acting constable in such dis-
trict]. {Words in brackets stricken out by act 1890.) [So much of this
section as requires summons to be returned for trial in district of de-
fendant's residence seems to be repealed by sec. 1086, Ky. Stat. Can
not summons be returned to justice issuing it and trial had in his
court without reference to district of defendant's residence ? Ed.]
§ 711 (tss] Place of trial if more than one defendant. If there be two or
more defendants residing in the county, but in different districts, the
summons shall be returnable in either district.
§ 712 [ts4] Place of trial in action against transient defendant. If a defend-
ant transiently in a county be served with a summons issuing in said
county, it shall be returned in the district in which he is served,
unless he otherwise consetit in writing signed by him.
§ 713 [tss] Jury trial — ^wheu may be demanded. The parties shall not be
entitled to a trial by jury, unless the matter in controversy exceed in
value twenty dollars. Upon a jury trial being claimed, if it be
allowable, the presiding judge or justice shall order a jury to be
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352 QUARTERLY, POLICE AND JUSTICES* COURTS. [TITLE XVI
forthwith impaneled to try the action. The jurors shall be qualified
as is required in the circuit courts. (Six jurors sufficient^ Ky. Stat.,
sec, 2262)
§ 714 [8s«] New trial — ^time io which may be sraoted. A new trial may be
granted in the quarterly courts or courts of justices of the peace,
upon motion made within ten days after a judgment has been ren-
dered, of which motion reasonable notice shall be given to the
adverse party.
§ 715 [S8T] Justice to keep indexed record of proceedings. Each presiding
judge and justice of the peace shall, in a book provided for that
purpose, keep a full and fair record of judicial proceedings in his
court ; and keep a good cross-index of the names of the litigants,
referring to the pages of the book of every entry in each case.
§ 716 [889] Interrogatories may be filed by either party. Either party may
file with the judge, justice or clerk of the court, in which the case is
to be tried, written interrogatories, to be answered by an adverse
party who resides out of the county where the court sits, or who is
unable to attend court on account of infirmity or imprisonment, or
who is a female ; and may cause a certified copy of such interrogator-
ies to be delivered to the party who is required to answer them ; and
such party shall file with the clerk, on or before the day of trial, a
plain and direct response to the interrogatories, sworn to by him.
Such response may be read as a deposition by either party.
§ 717 [840] Judgment against party refusing to testify. The court shall
render judgment against the party who refuses to attend and be
examined when summoned, as is authorized by this Code, two days
before the trial ; or to make proper responses to interrogatories, a
copy of which shall have been delivered to him three days before th^
trial, if he reside within fifty miles of the place of trial, and one
additional day for every additional thirty miles he may reside there-
from ; but the court may grant further time for attending or answering.
§ 718 [841] Last two sections apply to appeals. The last two sections shall
apply to appeals from judgments of quarterly, justice's, city, police
and mayor's courts.
§ 719 [841] Lost or destroyed judgment may be renewed. If the record of a
judgment of a quarterly, city, police, mayor's or justice's court be lost
or destroyed, such court may, on motion of the plaintift", made within
five years after the rendition of the judgment, and after five days'
notice, render a new judgment for what may remain due thereon.
§ 720 (84S] Set-off or counter-claim in excess of jurisdictiofl. A set-off or
counter-claim, though exceeding, in amount, the jurisdiction of the
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TITLE XVlj QUARTERLY, POLICE AND JUSTICE&' COURTS. 358
court, may be used to bar and extinguish the demand of the plaintiff;
but no judgment shall be rendered in favor of the defendant for the
excess, unless such excess be within the limits of the court's jurisdic-
tion as to amount. The judgment shall ascertain the amount due to
the plaintiff and give him a credit therefor on the claim used as a
set-off or counter-claim: \Providedy That v^^hen the amount of the
counter-claim or set-off exceeds the jurisdiction of the court trying
the cause, the court shall, on motion of either party to the action, or
by their attorneys, transfer the cause to the court having jurisdic-
tion.] ( Words in brackets added by act 1893; set-off and counter-claim
dejinedj sec. 96.)
§ 721 [844] Trial of provisional remedy. If an order for a provisional
remedy, made by a judge or justice, in an action within the jurisdic-
tion of his court, be served or levied, the trial of the action and
disposition of the order may take place at any time after five days^
notice given to the defendant by the officer who serves or levies such
order; or after five days' notice given by the defendant to the plaintiff,
upon a counter-affidavit filed by the defendant; and if the judge or
justice, before whom the trial should regularly be had, be absent or
unable to act, the officer may return the case for trial before the most
convenient justice.
§ 722 [845] Land can not be levied on under execution from. Laud shall not
be sold nor levied on under execution from a quarterly or justice's
court, or any court of similar jurisdiction.
§ 723 [844] Land how sold when execution returned '*• no property." When an
execution upon a judgment of a court mentioned in section seven
hundred and twenty-two is returned by a proper officer, in whole or
in part, in substance, no property found to satisfy it, the judge or
justice of the court shall, upon application of the plaintift* or his
attorney, furnish a certified copy of the judgment, execution and
return ; which, on being filed in the office of the clerk of the circuit
court, of the county in which the judgment was rendered, shall be
recorded by him in a book kept for that purpose ; and, thereupon,
the plaintiff shall be entitled to the same remedies for the amount of
his judgment and costs, including the costs of said copy and of
recording it, as if the judgment had been rendered in the circuit
court.
1 721. PrKcedlofs upon retarn of oo property. See notes to sec. 439.
(tS)
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854
APPEALS FROM THEIR JUDGMENTS.
[title XVI
CHAPTER II.
APPEALS FROM THEIR JUDGMENTS.
§ 724. Appeal — how taken — transcript.
§ 725. Original papers transmitted to Appellate Court.
§ 726. Appeals— when stand for trial and how tried.
§ 727. CJosts upon appeal.
§ 728. Costs in inferior court.
§ 729. Time in which appeal to be taken.
§ 730. Rights of appellee if appellant fails to prosecute.
Transcript to be furnished party appealing.
Appeals may be taken in the
§ 731.
§ 724 [847] Appeal — how taken — transcript
manner following :
1. The party appealing shall produce to the clerk of the court to
which the appeal is taken a certified copy of the judgment and
amount of costs, and cause to be executed before him, by one or
more sufficient sureties to be approved by him, a bond to the effect
that the appellant will satisfy and perform the judgment that shall
be rendered upon the appeal ; whereupon, the clerk shall issue an
order to the judge, mayor or justice, rendering the judgment, to
§724. (1) Amount in controversy. In
determining the amount in controversy
the interest is always computed up to
the time when the amount in contro-
versy is necessary to confer jurisdiction.
Orth V. Clutz, 18 B. M. 223 ; Fidler v.
Hall. 2 Met. 401; Bracy v. Bracy, 12
Bush 153 ; Wigginton v. Moss, 2 Met. 38.
(2) In all appeals from the judgments
of justices when amount gives jurisdic-
tion, it is the amount in controversy, or,
more specifically, the amount claimed
and litigated before the justice. Dona-
hue v. Murray, 2 Bush 194 ; and see note
3, sec. 705.
(3) Where the amount claimed is
sufficient to authorize an appeal, either
party may appeal from the judgment,
no matter how small it is, and although
the judgment against the defendant be
less than would authorize an appeal, he
can appeal if the amount he was sued
for is large enough to authorize an ap-
peal. 2 Bush 194.
(4) Appeal bond. A plaintiff appealed
from the justice's court to the quarterly
court, where judgment was rendered
against him for costs. The surety on
the appeal bond attempted to escape
liability because the quarterly court did
not have jurisdiction. He was held
liable on the ground that the execution
of the bond delayed and obstructed the
collection of the judgment in the jus-
tice's court, and subjected the defendant
to the costs of an additional trial, which
was sufficient consideration to uphold
the bond. Stephens v. Miller, 80 Ky. 47.
(5) Duty of clerk to prepare, sec.
672 ; defective bond may be corrected,
sec. 682; 2 Duv. 77 ; 3 Bush 94.
(G) Attachment— order snstaioins may be
appealed from. Order of justices' or
quarterly court sustaining an attach-
ment may be appealed from to the cir-
cuit court without appealing from the
personal judgment for the debt. The
bond should be to pay the costs, and any
judgment that may be rendered on the
appeal from the order sustaining the at-
tachment. When such appeal is taken
the creditor can collect his judgment by
execution, but can not sell the attached
property. If the circuit court sustains
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TITLE XVl]
APPEALS FROM THEIK JUDGMENTS.
355
stay proceedings thereon ; and to transmit to the office of said clerk
all the original papers in the case ; and the appellee shall be sum-
moned, actually or constructively, as is provided in chapter two of
title four, to appear and defend the appeal. The provisions of this
section, in regard to clerks, apply to a judge who acts as clerk of
his own court.
2. [If the amount in controversy be of the value of twenty dollars
or more, exclusive of interest and costs, either party may direct
the appeal to be taken to the circuit court, and the judge or justice
shall make a minute thereof as part of the record.] ( Words in
brackets repealed by Ky. StaL, sees. 978^ 1054-. ^^ ^o jurisdiction of
appealsy see page 6^7; form of summons on appeal^ page 661; appeal
bond and supersedeas, page 661; if appeal bond defective, new one
may be executed, sec. 682.)
the attachment an order will be mado
directing a sale of the attached property.
Hawkins v. Baldauf, 10 Bush 624.
(7) Dismissal of appeal without preju-
dice is not a bar to a subsequent appeal
taken within sixty days from date of
judgment appealed from. Brooks v.
Brooks, 3 R. 253.
(8) The dismissal of an appeal by the
circuit court deprives that court of
jurisdiction over the case, and remits it
to the magistrate whose judgment has
been appealed from. Olmstead v. Ma-
son, 3 Bush 693; and where the motion
is made by appellee and sustained, he
must look to his judgment in lower
court; the circuit court can not render
judgment in his favor for amount of
Judgment appealed from. Manier v.
Lindsey, 3 Bush 94.
(9) Appeal should be dismissed if court
to which it is taken has no jurisdiction
of the appeal. Jones v. Thompson, 12
Bush 394; and where court in which
action is Instituted has no jurisdiction if
an appeal be taken from its judgment
the appeal should be dismissed. Fidler
V. HaU, 2 Met. 461.
(10) Jnrisdictioa— waiver. Where the
circuit coort has jurisdiction of the sub-
ject matter, if an appeal is taken to it,
when it should have been taken to the
quarterly court, the objection to the
jurisdiction will be waived by failure to
move to dismiss the appeal and consent-
ing to the trial. Hughes v. Hardesty, 13
Bush 304 ; see Fidler v. HaU, 2 Met. 461.
(11) Jurisdictloo— consent can not five.
A case appealed from the justice's court
to the quarterly court can not, without
any trial there, be transferred by agree-
ment to the circuit court. The latter
court should dismiss the appeal. Davis
V. Davis, 10 Bush 274. And where the
justice dismissed a warrant because the
amount in controversy exceeded his
jurisdiction, and the quarterly dismissed
the case on appeal to that court, the
plaintiff having appealed to the circuit
court, that court should have dismissed
the appeal for want of jurisdiction. Fid-
ler V. Hall. 2 Met. 461.
(12) Practice on appeal Transcript of
judgment may be attested as a true copy
by justice with the permission of circuit
court, even after expiration of sixty days
from date of judgment. Com. v. Knoerr,
3 R. 624.
(13) On appeal, the circuit court has
power only to render judgment for the
plaintiff for whatever may be due him,
or if nothing be due, to dismiss the action,
or if it is proper to do so the appeal may
be dismissed, and until one of these
things be done the case remains in cir-
cuit court. The circuit court has no
power to ** reverse" the jutice's judg-
ment. Bennett V. Thompson, 10 Bush 365.
(14) When a case is transferred by
appeal to the circuit court the justice
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356
APPEALS FROM THEIR JUDGMENTS.
[title XVI
§ 725 [848] Original papers transmitted to Appellate Court The judge, mayor
or justice, on being served with said order, shall, in ten days there-
after, transmit all the original papers in the action to the clerk's office
of the court to which the appeal is taken.
§ 726 [849] Appeals — when stand for trial and how tried. Appeals shall be
docketed and stand for trial as ordinary actions, and shall be tried
anew, as if no judgment had been rendered.
has no further power over it, Palmer v.
Kennedy, 7 J. J. M. 497, unless appeal is
dismissed. Manier v. Lindsay, 3 Bush
94.
(15) The burden of proof is the same
in the circuit court as if action had been
instituted in that court by the plaintiff,
and ho must make out his case. Mc-
Kitrick v. Peter, 5 Dana 587.
(16) The Code does not authorize the
filing of pleadings upon an appeal where
the amount sued for did not require a
petition, but if pleadings are filed they
can not increase the demand beyond the
jurisdiction of the court in which action
was commenced. Burbage v. Squires, 3
Met. 78. See notes to sec. 726.
(17) After jury is sworn it is too late
to object that the papers have not been
returned, by the justice. Grimes v. Dear-
born, 3 J. J. M. 60.
(18) From a joint judgment against
several defendants either can appeal, and
thereby all the defendants are necessarily
brought into the court appealed to as
parties. Palmer v. Kennedy, 7 J. J. M.
498 ; Clagget v. Blanchard, 8 Dana 41.
§726. (1) Amendnent on appeal — far-
nishee. A filed an aflftdavit against B in a
justice's court, and garnisheed fifty-nine
dollars in the hands of C. No petition
was filed. The attachment was dis-
charged, and C directed by the justice
to pay the money attached to B, which
he did. A prayed an appeal at the time
the attachment was discharged, and the
same day filed his appeal in the circuit
court. On the trial in the circuit court
A was permitted to file an amended pe-
tition, setting up properly his claim.
The attachment was sustained, and the
garnishee required to pay the money at-
tached to A. This judgment was af-
firmed. Whether, when money is at-
tached, the garnishee must hold it until
the time to appeal expires, not decided.
Puff V. Hutcher, 78 Ky. 146.
(2) Power of circolt court oo appeal The
only power the circuit court has on ap-
peal is to render judgment for whatever
may be found due on the trial ; or, if
nothing is found due, to dismiss the
action ; or, if the appeal is not regularly
prosecuted, or the court has no jurisdic-
tion, to dismiss the appeal, and until
some of these things are done the case
remains in court. The court has no
power to reverse the judgment of the
justice. Bennett v. Thompson, 10 Bush
365; and sees notes 5-18, sec. 734.
(3) When an appeal is taken to the
circuit court from the judgment of a
justice's court that had no jurisdiction of
the subject matter, no recovery can be
had in the circuit court against the de-
fendant, and in such case the circuit
court should make such orders as will
render the proceedings in the justice's
court inoperative. Wigginton v. Moss, 2
Met. 38.
(4) If, on an appeal from the judg-
ment of a justice, it appears that the
justice had no jurisdiction of the cause,
the court should dismiss the action.
Fleming v. Limebaugh, 2 Met. 265.
(5) Same case to be tried oa appeal—
ameodment Upon the trial of an appeal
the cause of action must be the same as
that expressed in the warrant, and it
must be a cause of action over which the
justice had jurisdiction. It must be the
same identical case which was tried by
the justice, and not a new case. Upon
the trial of the appeal no new cause of
action can be relied upon. The same ac-
tion may be tried anew^ but no new action
is to be tried. Burbage v. Squires, 3
Met. 78.
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TITLB XVl] APPEALS FROM THEIR JUDGMENTS. 357
§ 727 [tso] Costs ttpoii appeal. [Jnless the judgment on the appeal be
more favorable to the appellant than the original judgment, he shall
pay the costs of the appeal. If he merely succeed in reducing the
amount of a judgment rendered against him, if shall be at the discre-
tion of the court to allow him costs or not.
§ 728 [«»ii Costs in inferior court The costs in the inferior court shall
be adjudged in favor of the plaintiff, if he succeed in obtaining, on
the appeal, a judgment for any amount; otherwise, in favor of the
defendant.
§ 729 [tss] Time in wiiicli appeal most be taken. ^N'o appeal shall be taken
pursuant to this article, except within sixty days from the rendering
of the judgment. {How days between acts counted^ sec. 681.)
§ 730it68] Rights of appellee If appellant fail to prosecute. If the appellant
move to dismiss or fail to prosecute his appeal, it shall be at the option
of the appellee either to proceed to trial on the appeal, or to have
judgment rendered for the amount of the original judgment and costs,
if it was in his favor, or in bar of the original judgment, if it was
against him.
§ 731 [854J Transcript to be furnished party appealing. If a party wish to
take an appeal, the mayor, judge or justice before whom the case was
tried shall deliver to him, upon application, a copy of the judgment
and amount of costs certified by him.
(6) *'A plaintiff can not, upon an ap-
peal, amend his pleadings so as to set up
a new and independent cause of action.
The case, i. «., the cause of action, to be
tried on the appeal must be the same
that was tried in the lower court ; but to
that case the defendant has the right to
make all the defenses he has. If he fails
to set up any defense, and allows judg-
ment to go by default, it is within the
discretion of the court in which the ap-
I)eal is pending for a trial de ftovo to allow
an answer to be filed. So, too.that court
may in the same way allow the defense
to be changed, or new defenses to be
made, as if the case had been originally
brought in that court." Willis v. Mc-
Neal, 8 R. 411.
(7) Tender of amonnt before appeal
taken— effect. Ky. Stat., sec. 890.
§ 727. (1 ) Costs— bow adjudfed oo appeal
When the appellant succeeds in reducing
the amount of the judgment against him,
the court may adjudge to or withhold
from him his own costs, but can not give
judgment against him for the costs of
the appellee. Gentry v. Doolin, 1 Bush 1 ;
and see L., St. L. & T. R. R. v. Barrett,
91 Ky. 487.
(2) Judgment against appellant for
costs on dismissal of his appeal for want
of jurisdiction is erroneous. Williams
V. Wilson, 5 Dana 596.
(3) On appeal to the circuit court the
plaintiff had no cause of action and was
properly adjudged to pay the costs in
both courts. Willis v. McNeal, L. R.
411.
§ 729. Time— bow computed. See notes
to sec. 681.
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858 RULS8 OF CONSTRUCTION OF THIS CODE. [TITLE XVH
TITLE XVU.
RULES OF CONSTRUCTION OF THIS CODE.
§ 732. Rules that prevail.
§ 733. Code not to be strictly construed.
§ 732 isMtotTS] Roles that prevail in coostruiiis Code. In construing the pro-
visions of this Code, these rules shall prevail, unless a different inten-
tion be expressed, or be shown by the context :
1. Title— chapter— article— section. The words "title," "chapter,''
" article," " section," and the figure §, refer to provisions of this
Code.
2. Tense. Each tense includes every tense.
3. Gender. Each gender includes every gender.
4. Plural — singular. The singular includes the plural, and the
plural the singular, number.
5. Person. The word " person " includes a corporation.
6. Writing. The word "writing" includes printing and printed
paper.
7. Signature — subscription. The words " signature," " subscription "
and words of like import, include a mark by, or for, a person who
can not write, if his name be subscribed to an instrument and wit-
nessed by a person who, near thereto, writes his own name as a
witness.
8. Action for money, includes what. An action for money includes an
action for the recovery of damages as well as of money due by
contract.
9. Real property. The words " real property " mean lands, tene-
ments and hereditaments.
10. Personal property. The words "personal property" mean
money, goods, chattels, things in action and evidences of debt.
11. Property. The word "property" includes any vested interest,
legal or equitable, in real or personal property.
§ 732. (1) «« Chief officer "of railroad cor- Gowdy v. Sanders, 88 Ky. 346; Johnson
poration is, first, its president ; second, v. Elkins, 90 Ky. 163.
its vice-president. Harper v. N. N. & (4) " Signatttre.** Subsection seven only
M. V. R. R., 90 Ky. 359. applies to writings that may be, or are,
(2) Construction of statutes. See Ky required under the Cofle. Meazels v. Mar-
Stat., sec. 446. tin, 93 Ky. 50; Maupin v. Berkley, 3 R.
(3) "Process" includes execution. 617; andsee Vanoverv.Murphy,12R.733.
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TITLE XVIl] RULES OP CONSTRUCTION OF THIS CODE. 359
12. Co«rt — indge — lustice — clerk. The word "court" refers to the
court in which an action or proceeding is pending, or may be
brought; and the words "judge," "justice," "clerk," refer to
oiGcers of such court.
13. Justices' coorts — qnarterly coarts. The words "justices' courts"
or " quarterly courts " embrace courts having similar jurisdiction,
in whole or in part, to that of justices' courts' or quarterly courts;
and the words "justice" or "presiding judge," and words of like
import, embrace judges of either of said courts.
14. Circuit coart — circuit jadfe. Excepting criminal courts and
judges thereof, the words "circuit court" embrace courts having
similar jurisdiction, in whole or in part, to that of circuit courts;
and the words "circuit judge" embrace judges of either of said
courts.
15. Sheriff. The word " sheriff " means the sheriff of the county
in which the action or proceeding referred to is pending, or the
sheriff of another county to which process is directed ; and it means,
also, any officer or person who is or may be authorized by law to
act as, or in place of, a sheriff.
16. Corooer — justice — jailer — constable. The words " coroner, "
"justice," "jailer," "constable," mean officers of the county in
which the action or proceeding referred to is pending, or may be
brought, or to which the process referred to is directed.
17. Personal representative. The words " personal representative "
mean the executor or administrator or other person appointed to
take charge of the estate of a deceased person.
18. Real representative. The words "real representative" mean
the heir or devisee of real property of a deceased person.
19. Representative. The word "representative" includes personal
and real representatives.
20. Successor. The word "successor" means a person who takes
the place of another as personal representative, curator, guardian,
receiver, trustee or committee.
21. Other country — ^foreijni corporation. The words "other country,"
"foreign corporation," and words of like import, refer to any part
of the world out of this State.
22. United States. The words "United States" embrace the
States and Territories thereof and the District of Columbia.
23. Oath. The word "oath" includes affirmation, in any case in
which it may be substituted for an oath, and in like cases the word
"sworn" includes affirmed.
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860 RULES OP CONSTRUCTION OF THIS CODE. [TITLE XVU
24. Verificatioo — verified. The word " verification " includes oath
and affirmation, . and the word "verified" includes swoni and
affirmed.
25. Mooth — year. The word "month" means calendar month,
and the word "year" means calendar year.
26. Process. The word "process" means a writ or summons
issued in the course of judicial proceedings. (See note, page 358.)
27. Writ The word " writ ' means an orjjer or precept in writ-
ing, issued by a court, clerk or judicial officer.
28. Joint teoaots. The words "joint tenants," and words of like
import, embrace tenants in common and in coparcenary.
29. Joint property. The words "joint property," and words of
like import, embrace property held jointly or in partnership or in
coparcenary or in common.
30. Joiat delators. The words "joint debtors," and words of like
import, embrace all persons who may be sued in one action upon
the plaintiff's demand.
31. Disability. The word "disability" means coverture, infancy,
unsoundness of mind or imprisonment in a penitentiary of this
State or of any other country.
32. Residence — reside. The words " residence," " reside," mean,
with reference to a corporation, its chief office or place of business.
33. Chief officer or afent of corporation. The chief officer or agent of
a corporation which has any of the officers or agents herein men-
tioned is: First, its president; second, its vice-president; third, its
secretary or librarian; fourth, its cashier or treasurer; fifth, its
clerk ; sixth, its managing agent.
34. Action. The word " action " embraces a demand for a set-off
or counter-claim; and also embraces special proceedings, so far as
the provisions of this Code concerning actions are properly appli-
cable to such proceedings.
35. Party. The word " party " means a plaintiff or defendant in
an action, and embraces any person who has a right and seeks to
become a party to an action.
36. Plaintiff— defendant— petition. The word " plaintiff" embraces a
defendant who demands a set-off or counter-claim; the word
" defendant " embraces a plaintiff against whom such demand is
made; and the word "petition" embraces an answer or reply in
which such demand is made, and also embraces cross-petitions.
37. Sue. The word "sue" refers to an action or special pro-
ceeding.
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TITLE XVin] APPEALS TO COURT OP APPEALS — HOW GRANTED. 361
38. Bxamiaer. The word " examiner " embraces any person author-
ized to take a deposition.
39. Clerk. The word "clerk" embraces justices and judges of
courts which have no clerk.
40. Persoa of nnsoaad miad. The words " person of unsound mind "
include persons who are destitute of mind.
§ 7^ [8T4] Code aot to be strictly construed. The rule of the common
law, that statutes in derogation thereof are to be strictly construed,
shall not be applied to this Code. {See note^ page 358.)
TITLE XYin.
APPEALS TO THE COURT OP APPEALS.
[see JURMDICTION op court, page 547, RXJLB8 OF COURT, PAGE 593.]
Chapter L How granted, 734.
n. Supersedeas on appeals, 747.
in. Trial and decision^ 753.
CHAPTER I.
HOW GRANTED.
§ 734. Appeal matter of right — how granted.
§ 735. Designation of parties to appeal.
§ 736. Summons when necessary — warning order.
§ 737. Transcripts how prepared — schedule.
§ 738. Time in which transcript to be filed.
§ 739. Statement to be filed with transcript by appellant.
§ 740. Statement must be filed before appeal docketed.
§ 741. Appellee may file copy of ifecord.
§ 742. Writ of certiorari — when to be issued.
§ 743. Court may issue writ, or order original papers filed.
§ 744. Costs—appellant may be required to secure.
§ 745. Limitation of right to appeal.
§ 746. Tax on appeals.
§ 734 [876] Appeal matter of t\%\ki — ^how fraated. The mode of bringing
the judgment of an inferior court to the Court of Appeals, for reversal
1 734. (1) Acceptins satisfaction of iodg- appeal on the ground that his judgment
neat— collection of nncontested part Where did not amount to as much as he sued
a party recovers judgment upon an in- for; and if, pending the appeal, the
divisible claim and collects it by exeou- appellant accepts satisfaction of the
tion, he can not afterward maintain an judgment in his favor, his appeal will, on
9
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362 APPEALS TO COURT OF APPEALS — HOW GRANTED. [tITLE XVIH
or modification, shall be by an appeal, which shall be granted, as
matter of right, to a party or privy against a party or privy, by the
court rendering the judgment, on motion made during the term at
which it is rendered, or thereafter by the clerk of the Court of
Appeals, on application of either party or his privy, upon filing in
proper application, be dismissed. Paine
V. Woolley, 80 Ky. 568 ; Com. v. South,
so Ky. 582. But see amendment to sec.
757.
(2) The collection of a judgment for
the part of plaintiff's claim that is not
contested does not bar him from prose-
cuting an appeal from a judgment dis-
missing his action as to that part of it
controverted. Campbell v. C. S. R. W.,
80 Ky. 585.
(3) Accepting satisfaction of judgment
by withdrawing the money deposited in
court in satisfaction thereof bars right
of appeal. Brown v. Vancleave, 86
Ky. 381.
(4) Books — appeal may be taken from
absolute rule requiring production of.
Marion Nat. Bank v. Abell, 88 Ky. 428.
(5) Clerical mlsprisloiL See sees. 517,
763 and notes thereto.
(6) Confirmation of commissioner's report
auditing claims in settlement of an
estate is not final, as the court may dis-
regard it when final judgment is ren-
dered. Adkisson v. Dent, 88 Ky. 628.
(7) Consent lodgment A consent judg-
ment will not be reversed on the appeal
of a party consenting thereto. Duncan v.
Louisville, 13 Bush 378; Stone v. Werts,
3 Bush 486.
(8) '* It has been held by this court
that parties may, by consent, make final,
for purposes of appeal, a decree or order
of the circuit court that otherwise would
be deemed interlocutor}', and such con-
sent has been deemed sufficient to confer
jurisdiction here. But those cases were
exceptions to the general rule." Overby
V. Gay, 17 B. M. 144.
(9) Contempt. Distinction between
criminal and civil contempt, and hold-
ing that an appeal lies in cases of civil
contempt. City of Newport v. Newport
Liglit Co., 92 Ky. 446.
(10) The Court of Appeals has no
jurisdiction to retry a question of con-
tempt or no contempt, but it has juris-
diction to revise and correct erroneous
and illegal sentences or judgments im-
posed in such cases. Turner v. Com.. 2
Met. 619. See as to power of court to
punish for contempt, In re Woolley, 11
Bush 95.
(11) Deatli of party pendtaf appeal-
practice, effect Spalding v. Wathen, 7
Bush 659; Hopkins v. Hopkins, 91 Ky.
310; and see as to right of surviving
partner to prosecute an appeal where
other partner dies after appeal is grant-
ed. Clay v. Gibson, 13 R. 414.
(12) Demurrer. Order overruling de-
murrer to answer and reciting that
plaintiff declined to plead further, ex-
cepted to the judgment and prayed an
appeal, is final, although it does not
expressly order dismissal of petition.
Zable v. Lou. Baptist Home. 92 Ky. 89;
the general rule is that a judgment must
follow the demurrer. 81 Ky. 345.
(13) Divided court '' When the case
presents two or more questions and the
members of this court are equally di-
vided in opinion upon one or more of such
questions and the judgment is reversed
upon other points upon which all agree,
the opinion of the judges who agree
with the court below upon the questions
about which there is an equal division
here becomes the law of the case as to
those questions and binding upon this
court on a future appeal." Smith v.
Brannin, 79 Ky. 114. If the court is
equally divided the judgment of the
lower court stands affirmed. Ky. Stat.,
sec. 955.
(14) Divorce. Judgment granting can
not be appealed from. Ky. Stat., sec. 950 ;
although it may be only from bed and
board. See note 3, sec. 420.
(15) Pidttciary— wlien rifht of to appeal
ceases. The right of an unsuccessful
party, who occupies a fiducial relation,
to prosecute an appeal ceases when he
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TITLE XVIIl] APPEALS TO COURT OF APPEALS — HOW GRANTED.
368
the office of said clerk a copy of the judgment from which he appeals.
{What judgments wUl not be reversedy sec, 763; final order may be
appealed from^ sees. ^66 j S98; appeal from county courts sec, 4^9; form
of orders granting appeal^ page 660; jurisdiction of Court of AppealSj
page647.)
resigns or is removed, and so with a
bankrupt when his right passes to the
assignee. Parks v. Doty, 13 Bush 727.
(16) Pioal orier or Mcneit defined. The
rule is *' that a judgment to be final must
not merely decide that one of the par-
ties is entitled to relief of a final charac-
ter, bat must give that relief of its own
force or be enforceable for that purpose
without further action by the court or
by process of contempt." Bondurant v.
Apperson, 4 Met. 30 ; Hanson v. Bowger,
4 Met. 108 ; Judgment that determines
the right but does not give the relief is
not final. Bank v. Allen, 8 R. 36.
(17) Final order or judgment from
which an appeal lies either terminates
the action itself or operates to divest
some right in such manner as to put it
out of the power of the court making
the order after the expiration of the
term to place the parties in their original
condition. Harrison v. Lebanon Water
Works, 91 Ky. 255 ; and see further, notes
to sec. 368.
(18) Qnatiof in Court of Appeals. Where
the appeal granted by the lower court is
not taken, or where the record under the
appeal in lower court is not filed in time,
and the appeal is dismissed, an appeal
may be granted by the clerk of the
Court of Appeals within the time al-
lowed. City V. Elrod, 14 Bush 216;
Wearen v. Smith, 80 Ky. 216.
09) Suing out a summons against the
appellee is not made a requisite to the
granting of the appeal, and is not nec-
essary to secure an appeal. The appeal
is taken by, and dates from, the filing
of the record (now copy of the judg-
ment) with the clerk of the Court of
Appeals. Jones v. Finnell, 8 Bush 25.
(30) Granting by Clerk of Court of
Appeals before expiration of term of cir-
cuit court at which judgment was ren-
dered is a nullity and may be disregarded.
Schmidt v. Mitchell, 95 Ky. 342.
(21) Qnatiflf by lower court The lower
court has no power to grant an appeal
after the expiration of the term at which
the judgment was rendered, or the mo-
tion for a new trial overruled. Wright
v. Woolfolk, 14 Bush 308 ; City v. Elrod,
14 Bush 216; American Accident Co. v.
Reigart, 92 Ky. 142 ; and see note 42.
(22) HabeM corpus. No appeal lies
from decision of an inferior court upon
a writ of habeas corpus. Gill on Peti-
tion, 92 Ky. 118; Weddington v. Sloan,
15 B. M. 147.
(23) Judicial tales. Appeal may be
taken by purchaser at decretal sale from
order setting aside sale, although prop-
erty is worth less than one hundred dol-
lars. Hughes V. Swope, 88 Ky. 254;
and from an order confirming a report of
sale, Kincaid v. Tutt, 88 Ky. 392.
(24) Jurigdiction. Amount in contro-
versy where the defendant appeals is
amount of judgment against him, and
not the amount sued for. L. & N. R. R.
V. Wade, 89 Ky. 255 ; a different rule ob-
tains when defendant prosecutes an ap-
peal to the circuit court from the judg-
ment of an inferior court ; in such cases
the amount sued for, and not the amount
of the judgment, determines the ques-
tion. Donahue v. Murray, 2 Bush 194.
(25) The interest due upon a debt is a
part of the amount in controversy. Orth
V. Clutz, 18 B. M. 223 ; Bracy v. Bracy,
12 Bush 153 ; Bakewell v. Howell, 2 Met.
268; Fidler v. Hall, 2 Met. 461.
(26) Where the matter in controversy
exceeded fifty dollars (now one hundred
dollars) the Court of Appeals had juris-
diction on an appeal by the plaintiffs
from a judgment in their favor for three
dollars, but the defendant could not ap-
peal as the judgment against him was
for less than fifty dollars (now one hun-
dred dollars). Brandies v. Stewart, 1
Met. 395 ; Revill v. Pettit, 3 Met. 315 ;
Tipton V. Chambers, 1 Met. 565.
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364
APPEALS TO COURT OP APPEALS — HOW GRANTED. [TITLB XVm
§ 7J5 [8TT] Designation of imrties to appeal. The party taking the appeal
shall be called the appellant ; and the adverse party, the appellee.
§ 736 [8T8] Sammons when necessary — ^wamlnf order — appointuMnt of attorney.
1. No summons of appellees shall be necessary, if the appeal be
granted by the inferior court ; or if the appellees enter their appear-
ance in the Court of Appeals.
(27) Where several are jointly suable
on the same contract for separate amounts,
the agfjregate claimed against all deter-
mines the jurisdiction. Wilde v. Hay-
craft, 2 Duv. 309.
(28) When several join in one action
to assert distinct interests, the amount of
the interest of each is the test, and the
amounts claimed can not be added to-
gether to give jurisdiction. Oswald v.
Morris, 92 Ky. 48.
(29) Jurisdiction of **this court only
extends to the final orders and judg-
ments of inferior courts^ and not to the
orders and judgments which judicial
officers are authorized to make out of
court." Weddington v. Sloan, 15 B. M.
147 ; Gill on Petition, 92 Ky. 118.
(30) Where the judgment against ap-
pellant is not sufficient to give court
jurisdiction, will a counter-claim pleaded
by him, and which there is no evidence
whatever to support and which was dis-
missed, give jurisdiction ? Licking Roll-
ing Mill v. Fischer, 88 Ky. 176.
(31) See, as to jurisdiction and powers
of Court of Appeals, Ky. Stat., sees. 949,
950 and page 547 of this Ckxle.
(32) Office, franchise or freeliold. Final
order or judgment relating to may be
appealed from. Smith v. Cochran, 7
Bush 147; Cheek v. Com., 87 Ky. 42;
Johnson v. Com., 90 Ky. 53.
(33) Orders and indsmeit tliat may be ap-
pealed from. An appeal may be taken
from an order made when the judgment
is rendered, sustaining or discharging
an attachment ; sees. 206-267 ; or from
an order appointing or refusing to ap-
point a receiver; sec. 298; or from a
final judgment in the circuit or county
court, allotting dower or dividing land.
Sec. 49^12.
(34) From a judgment of the circuit
court in proceedings under a writ of ad
quod damnum, Tracy v. E. &. B. R. R.
Co., 78 Ky. 309; by a purchaser at de-
cretal sale from an order overruling ex-
ceptions filed by him tK> the confirmation
of the sale. Allen v. Graves, 3 Bush 491 ;
from an order of the circuit court refus-
ing to allow a policeman one dollar, his
attendance as a witness in a felony case.
Ex parte Herrick, 78 Ky. 23.
(35) From a judgment making an al-
lowance to the wife pending the suit for
divorce; Lochnane v. Lochnane, 78 Ky.
467 ; or from an allowance made to the
wife by way of alimony when the di-
vorce is granted ; Beall v. Beall, 80 Ky.
675 ; from an order disbarring an at-
torney; Turner v. Com., 2 Met. 619;
from an order of the county court re-
moving the jailer ; Lowe v. Com., 3
Met. 237 ; from an order of the county
court directing the collection of a tax
assessed under a special act. Bate v.
Speed, 10 Bush 644.
(36) From the judgment of the circuit
court on an appeal from the county court,
dismissing an application for a new road ;
Helm V. Short, 7 Bush 623; from an
order sustaining a demurrer to the juris-
diction of the court ; Dudley v. High
School, 9 Bush 576; or sustaining a de-
murrer to a petition and dismissing it ;
Com. v. Peters, 4 Bush 403 ; from an
order granting a new trial upon petition
filed under sec. 518 ; McCall v. Hitch-
cock, 9 Bush 66, 7 Bush 615; from an
order removing cause from State to
Federal court ; Hall v. Rickette, 9 Bush
366 ; from an order confirming a report
of sale; Dawson v. Litsey, 10 Bush
408 ; Megowan v. Pennebaker, 3 Met. 501.
(37) From a rule requiring a clerk to
transfer attachment suit from one court
to another, Schroll v. Speed, 14 Bush
186 ; from an order refusing to permit
persons who file a petition for that pur-
pose to be made parties, Berry v. Ham-
ilton, 1 Bush 361 ; from a judgment of the
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TITLE XVIU] APPEALS TO COURT OF APPEALS — HOW GRANTED.
365
2. In all other cases, the appellees shall be summoned actually
or cons^.ructively, pursuant to the provisions of chapter two of title
four, to appear and answer the appeal.
3. For an appellee who is constructively summoned in the
Court of Appeals [the clerk of] that court shall appoint an attor-
circuit court affirming administrator's
settlement made in the county court,
Clark V. Lusk, 1 Met. 447; from a Judg-
ment awarding damages on the dissolu-
tion of an injuction, Otfut v. Bradford,
4 Bush 413 ; from a final order or judg-
ment which relates to an office, franchise
or freehold, Smith v. Cochran, 7 Bush
147; from a judgment on an invalid ball
bond, Pauer v. Simon, 6 Bush 514 ; or
upon service in another county than that
in which the action is pending. Ruby
V. Grace, 2 Duv. 540 ; or without service
of process. Long v. Montgomery, 6
Bush 394.
(38) From a decision of the circuit court
reversing or affirming a decision of
the county court on an application for
merchant's license, Dougherty v. Com.,
14 B. M. 230; from an order adjudging
priority between claimants and refusing
to substitute one party to the lien of
another, Hearn v. Lander, 11 Bush 669 ;
from an adverse judgment of the circuit
court on the claim of a county creditor
who has appealed from an order of the
county court rejecting it, Washington
County V. Thompson, 13 Bush 239. A
nominated executor may appeal from
an order of the circuit court rejecting
a will. Pryor v. Mizner, 79 Ky. 232.
(39) From an order directing suit
pending in another State to be dismissed,
Kelly V. Toney, 95 Ky. 338 ; and from
an order directing money withdrawn
from court to be paid back. City of
Lou. V. Kaye, 10 R. 160; and from a
Judgment in suit to settle decedent's
estate that a person recover a certain
amount to be paid out of assets, or di-
recting sale of land to pay debts. Cham-
berlain V. Chamberlain, 13 R. 192 ; and
from an order directing a homestead to
be set apart before any sale was made to
satisfy the debt, Brittain v. Foley, 7 R.
595.
(40) Laid. Where either the legal or
equitable title to land is put in issue
either party may appeal without refer-
ence to its value. Hughes v. Swope, 88
Ky. 254; Moore v. Boner, 7 Bush 26;
Caskey v. Lewis, 15 B. M. 27 ; and the
fact that pending the lifigation the land
has been converted into money does not
affect the right of appeal. Clements v.
Waters, 90 Ky. 96 ; but the title to land
is not involved where the only question
is as to priority between lien - holders.
Pittman v. Wakefield, 90 Ky. 171.
(41) In action for trespass, where title
is brought in issue, appeal lies, although
amount in controversy is less than one
hundred dollars. Thacker v. Crawford,
5 R. 764.
(42) Mamlamas. Court of Ap|»eals will
issue writ of to compel circuit court to
grant an appeal to a party entitled to it.
Kelley v. Toney, 95 Ky. 338 ; Schmidt v.
Mitchell, 95 Ky; 342 ; Louisville School of
Reform v. City of Louisville, 88 Ky. 5&4.
(43) Orders oot floaL The quashal of a
return upon a summons, Wearen v.
Smith, 80 Ky. 216 ; judgment against a
party directing him to pay a certain
amount of money when further ordered,
Tinly v. Martin, 80 Ky. 463 ; an order re-
quiring the plaintiff to elect which of
two causes of action he will prosecute,
Jones v. Johnson, 10 Bush 649 ; order dis-
charging an attachment on motion be-
fore final hearing, Leet v. Locket t, 4
Met 56 ; 4 Met. 108 ; dissolving injunc-
tion and continuing case, Rodman v. For-
llne, 2 Met. 325 ; order remanding a case
to a county from which it had been
moved by change of venue. Turner v.
Browder, 18 B. M. 825 ; an order made at
the same term setting aside an order dis-
missing a petition, Curd v. Dodds, 6 Bush
681 ; can not be appealed from.
(44) Decisions that can not be appealed
from. An order of the county oourt
refusing to qualify a person as deputy
sheriff, Applegate v. Applegate, 4 Met.
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866
APPEALS TO COURT OF APPEALS — HOW GRANTED. [TITLE XVHI
ney, whose duty it shall be to inform the appellee of the pendency
of the appeal; and the court may allow him a reasonable compen-
sation for his services, to be paid by the appellant and taxed as
costs. ( Words in brackets inserted by act 1893.)
236 ; nor can an order requiring an ex-
ecutor to give security until it is en-
forced, Atwell V. Helm, 7 Bush 504;
nor can an order confirming biennial
settlements made in the circuit court
in an equitable action brought in that
court by a guardian to enable him to
settle his accounts from time to time,
Clark V. Anderson, 10 Bush 99; nor can
an order appointing a commissioner to
ascertain facts in regard to alleged usury
in a claim, Pryor v. Smith, 4 Bush 379 ;
nor can an order for a rule against a
surety in a bond given to discharge an
attachment to show cause why he should
not pay bond, Inman v. Stratton, 4 Bush
445; nor can an order overruling a mo-
tion to set aside the verdict of a jury
when there has b^en no judgment on the
verdict, Rucker v. Pritchett, 3 Bush
089.
(45) Decision that certain property is
not subject to lien of mortgagee in a suit
to settle a decedent's estate is not final,
as court might afterward apply proceeds
of sale of property to payment of debt.
Skillman v. Frost, 4 R. 621 ; nor is opin-
ion of court that party is not entitled to
a homestead when possession of home-
stead is not disturbed and no judgment
followed the opinion. Smith v. Wilson,
4 R. 719.
(46) Order filing a suit away is not
final, Nickell y. Fallen. 11 R. 621 ; Nick>
ell v. Fallen, 15 R. 390.
(47) Order confirming in part and re
jecting in part a commissionet's report
of settlement and referring case to him
a^ain for final adjustment is not final.
Vinson v. Freese, 8 R. 350 ; nor is an or
der transferring a case from one State
court to another invested with like juris-
diction. Mercer v. Glass, 89 Ky. 199.
(48) Parties — privies. Whoever is a
party in the lower court, and would be a
necessary party to any further proceed-
ings after reversal, mnst be a party to
the appeal, and if not made a party the
appeal will be dismissed. Murphy v.
O'Reilly, 78 Ky. 263; by privies are
meant heirs, executors and tertenants.
Barr v. Stevens, 1 Bibb 293 ; South v.
Hoy, 3 Bibb 523.
( 49 ) PfeyoMit of Jadgneot Replevying
or satisfying a judgment is not a waiver
of the right to prosecute an appeal for
Its reversal. Kellar v. Williams, 10 Bush
216; see notes 1-3.
(50) ProhiiritioiL Power of Court of
Appeals to issue writ of is suggested,
but not decided, in Preston v. Fidelity
Trust Co., 94 Ky. 295.
(51) Presnaptioo ia favor of jadfBMBt
The court will presume, unless the con-
trary appears, that the lower court com-
mitted no error. Licking Rolling Mill
V. Fischer, 88 Ky. 176.
(52) Refasai of \wA%t to vacate keach
when proper affidavits are filed is a re-
versible error. Massie v. Com., 93 Ky.
588; Grerman Ins. Co. v. Landram, 88
Ky. 433.
(63) Res judicata. Every question pre-
sented upon an appeal must be taken
to have been disposed of by the decision
upon the appeal unless it be expressly
left open for further litigation. Smith
V. Brannin, 79 Ky. 114; and see Davis
V. McCorkle, 14 Bush 746.
(54) ** The plea of res judicata applies,
except in special cases, not only to points
upon which the court was actually re-
quired by the parties to form an opinion
and pronounce judgment, but to every
point which properly belonged to the
subject of litigation and which the par-
tiesexercising reasonable diligence might
have brought forward." Francis v.
Wood, 81 Ky. 16 ; and see further, notes
14-20 to sec. 868.
(55) Party who is in doubt as to proper
remedy, and prosecutes two appeals at
same time will not, after the merits of
the litigation have been determined in
one of them by the Court of Appeals, be
heard to complain of judgment on his
other appeal. Masonic Temple v. Com.,
11 R. 383.
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TITLE XVIIl] APPEALS TO COURT OF APPEALS — HOW GRANTED.
367
§ 737 [8Tf ] Transcripts how prepared — schedule. Concerning transcripts
of records to be used in the Court of Appeals —
1. a. Clerk to copy record as directed by schedule. The el^rk of
the court which renders a judgment shall copy the entire record,
or parts thereof, according to the directions of the judge of the
court, or of the parties to the appeal ; and the filing of a schedule,
as hereinafter authorized, shall be deemed a direction to copy
the parts of the record therein mentioned,
6. Application of subsections eight and nine. The clerk shall be
governed by the provisions of subsections eight and nine of this
section, in making any transcript to which those provisions apply.
2. Repealed, [In cases to which the provisions of chapter three of
title ten apply, the appellant, whether the appeal be granted by the
inferior court, or by the clerk of the Court of Appeals, shall present
to the judge of the inferior court his assignment of errors; the
judge shall, by directions indorsed on, or annexed to, the assignment,
order the clerk of the inferior court to copy such specified parts of
the record as, in view of the alleged errors, may be material ; and
the appellant shall file said assignment and directions in the oflice
of said last-mentioned clerk.] ( Words in brackets repealed by act
of 1884)
(56) Void iadfment — motion to correct
must be made iu lower court before ap-
peal will lie. Sec. 763 and notes.
§ 737. (1) Eotire record, when oaly par-
tial necessary. An appeal will uot be dis-
missed because a party brings the entire
record up in a proceeding under chapter
8, title 10. If a party sees proper to
bring the entire record he can do so, but
he must pay the entire costs, although
the judgment be reversed. Murrell v.
McAlister, 78 Ky. 73.
(3) Partial transcript Appellant may
bring up so much of the record as he
deems necessary to the determination of
a question involved, but if it appears
that portions of the pleadings or evi-
dence bearing upon the question have
been omitted the judgment will be af-
firmed. TerreH v. Rowland, 86 Ky. 67 ;
Brasfleld v. Burgess, 10 R. 660 ; 88 Ky.
176.
(3) **An appellant who prosecutes an
appeal upon a partial transcript does so
at his peril, and if it appears that part
•of the testimony used on the trial in
court below is not copied into the tran-
script it will be presumed in support of
the judgment that it would sustain the
avermen ts of appellee's pleading. ^ Jones
v. Jackson, 13 R. 253 ; and that the
omitted portions of record would sup-
port the judgment. McKee v. Stein, 91
Ky. 240 ; and that omitted pleadings
would sustain instructions, 88 Ky. 176;
and a party taking cross-appeal has
right to file schedule and cause entire
record copied ; if he fail to do this it will
be presumed that omitted record sus-
tains judgment against him. Adams v.
Dement, 16 R.— .
(4) It is not necessary that the record
upon appeal should contain all the evi-
dence heard on the trial to enable the
Court of Appeals to determine that the
court erred in giving a peremptory in-
struction for defendant ; if there is any
evidence in the record showing plaintiff's
right to recover, the judgment will be
reversed. Com. v. Tate, 89 Ky. 587.
(5) Schedule — notice ~ partial record—-
cross^ppeal. So much of the Code as re-
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368 APPEALS TO COURT OF APPEALS — HOW GRANTED. [TITLE XVin
8. Entire record to be copied if appellees constructively summoned.
In all other cases in which the appeal is granted by the
inferior court, if the appellees shall have been defendants in the
action, and if any of them shall have been only constructively
summoned, and have not appeared, in the action, and be not
actually summoned to answer the appeal, the appellant shall order
a transcript of the entire record.
4. In all other cases in which the appeal is granted by the
inferior court —
a. Schedule — time in which appellant to file — penalty for failure.
The appellant, within ninety days after the granting of the
appeal, shall file in the office of the clerk of the inferior court [his
assignment of errors, and] a schedule showing, concisely, what
parts of the record he wishes to have copied. His failure to tile
said [assignment and] schedule within the time prescribed shall be
cause for the dismissal of his appeal. ( Words in brackets repealed
by act of 1884,)
b. Notice of filing of schedule — service of — appellee may file sched-
ule. After filing said [assignment and] schedule, the appellant may
cause notice of the filing thereof to be served on the appellee, and
to be returned to said office, as a summons is directed to be served
and returned ; and within twenty days after such service ; or, if
such notice be not served, within one hundred and twenty days
after the granting of the appeal ; or, whether such notice be
served or not, at any time before completion of the transcript
ordered by the appellant, and not afterward, the appellee may tile
in said office a schedule similar to that above described [and, if
he wish to take a cross-appeal, he shall tile with said schedule his
assignment of cross-errors]. ( Words in brackets repealed by act of
1884.)
quires the judge to direct what part of volving the settlement of estates as in
the record is to be copied must be re- ordinary cases. When the entire record
garded as repealed by the act repealing is filed in time no schedule is necessary,
so much of the Code as required an as- If the appellee desires to prosecute a
signment of errors. The appellant may cross-appeal in this court he may file his
still bring a part of the record by filing schedule in the court below, either be-
his schedule within ninety days from the fore or after the schedule is filed by the
time he prays the appeal, and the filing appellant. L. & N. R. R. CJo. v. Brice,
of the schedule with the clerk is all the 83 Ky. 210.
notice required to be given to the ap- (6) No time is fixed in which the sched-
pellee ; but he will not be permitted to ule shall be filed when appeal is granted
file a partial record unless he has filed by clerk of Court of Appeals, nor is the
his schedule within ninety days, and failure to file in ninety days when appeal
this rule applies as well to appeals in- is so granted cause for dismissal of
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TITLE XVIIl] APPEALS TO COURT OF APPEALS — HOW GRANTED. 369
c. Repealed. [If the appellee file an assignment of cross-errors
the appellant, within forty days after service of notice upon the
appellee as aforesaid; or if notice be not served, within one
hundred and thirty days after the granting of the appeal ; or
whether such notice be served or not, at any time before com-
pletion of the transcript ordered by the appellee, and not after-
ward, may, with reference to the cross-appeal, file an additional
schedule similar to that above described.] {Words in brackets
repealed by act of I8S4,.)
5. Appeal granted in Court of Appeals — token partial — transcript
sufficient. Excepting the cases provided for by subsection two of
this section, if an appeal be granted by the clerk of the Court of
Appeals, and if the appellees be actually summoned to appear to
the appeal ; or, if, being femes covert or free from disability, they
enter their appearance to the appeal, the appellant may order a
transcript of the entire record or of parts thereof.
6. Appeal granted in Court of Appeals — entire record to be copied —
when. In all other cases in which an appeal is granted by the clerk
of the Court of Appeals, the appellant shall order a transcript of
the entire record.
7. Appeal granted in Court of Appeals — duty of appellant desir-
ing partial record. If the appellant, to whom an appeal is granted
by the clerk of the Court of Appeals, choose to file a transcript of
a part only of the record —
a. Schedule to be filed — notice of. He shall file in the office of
the clerk of the inferior court [his assignment of errors, and] a
schedule similar to that above described; and shall cause notice
of the filing thereof to be served on the appellees, and to be
returned to said office, as a summons is directed to be served and
returned. ( Words in brackets repealed by act of 188i)
b. Appellee may file schedule. Within twenty days after service
of such notice, or at any subsequent time before completion of the
appeal, but it should be filed a sufficient schedule may be filed within ninety days
length of time before the end of the from time appeal is so granted. Adams
period within which the transcript is v. Bement, 16 R. — .
required to be filed to give the notice (8) Schedule must be filed within
required by subsection 7 a. 6. of section ninety days from the granting of the
737. Wearen v. Smith, 80 Ky. 216. appeal, and extending time to prepare
(7) When appeal is granted by lower and file a bill of exceptions does not
court schedule must be filed within ninety extend time in which to file schedule,
days after appeal is granted, or appeal nor prevent appellant from filing schedule
wil be dismissed ; and where appeal is within the prescribed time. Wright v.
granted bv clerk of Court of Appeals Woolfolk, 14 Bush 308.
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370 APPEALS TO COURT OF APPEALS — HOW GRANTED. [tITLE XVIII
transcript ordered by the appellant, and not afterward, the appellee
may file in said office a schedule similar to that above described
[and an assignment of cross-errors], if he wish to take a cross-
appeal. ( Words in brackets repealed by act of 1884,.)
c. Repealed. [If the appellee file cross-errors, the appellant,
within forty days after service of the notice mentioned in subdi-
vision a of this subsection, or at any subsequent time before com-
pletion of the copy ordered by the appellee, and not afterward,
may file, with reference to the cross-appeal, an additional schedule
similar to that above described.] ( Words in brackets repealed by act
of mi.)
8. Section 336 applicable. The provisions of subsection three of
section three hundred and thirty-five shall apply to all transcripts
made by clerks.
9. Subpcena duces tecum — duty of clerk. If a subpoena duces tecum^
issued pursuant to section seven hundred and forty-three, subsec-
tion two, be delivered to the clerk of tlie inferior court before he
shall have copied the part of the record therein mentioned, he
shall transmit such part instead of a copy thereof, though a copy
thereof may have been ordered by the judge of the inferior court,
or by a party to the appeal.
10. Schedule notice and return to be copied in transcript. The
above-mentioned directions of the judge [assignments of error],
schedules and notices and returns thereon shall, when filed
in the office of the clerk of the inferior court, constitute part
of the record ; but shall not be spread at large on the order-book ;
and shall be copied in the transcript. . ( Words in brackets repealed
by act of 1884)
11. Cost of copy of unnecessary papers paid by party ordering. A
clerk who copies papers which do not constitute part of a
record, unless required to do so by a judge or a party; and a party
(9) Transcript — duty of clerics — index, against the unsuccessful party. Parrish
As to when clerk of inferior court may v. Ferguson, 83 Ky. 18.
be required to deliver transcript without (11) Liabilit}' of clerk for refusing to
pay, see note 4, to sec. 671 ; and Hous- make transcript. Houston v. Wande-
ton V. Ducker, 86 Ky. 123. lohr, 12 R. 345 ; record condemned be- <
(10) Where the clerk of the Court of cause index defective, 94 Ky, 191. \
Appeals has allowed a party, or his (12) What record sboold show. The ap- j
counsel, to use the original transcript in pellant must exhibit in the transcript so *
a case under an agreement to pay there- much of the record as will show affirma-
for, as if a copy had been actually made, tively that the decision complained of
and the party thus using the record is is erroneous. When the transcript shows
successful, he is entitled to have the that the record contained a paper which
cost of a copy taxed as a part of his cost may have contained matter that would
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TITLB XVIIl] APPEALS TO COURT OF APPEALS — HOW GRANTED. 371
who requires a clerk to copy such papers, or immaterial parts of a
record, shall pay the costs resulting therefrom, to be adjudged by
the Court of Appeals upon or without motion.
12. Certificate of clerk to record index — exhibits. At the close of
the transcript, the clerk shall certify, in substance, that it contains
a true and complete copy of the record, or of such parts thereof as
he may have been required to copy, according to the truth ; and
shall append an index referring, consecutively, to the pages on
which the copy of each pleading, or other separate part of the
record, commences; and describing briefly the exhibits, if any.
13. Transcript made according to this section regarded as complete
record — exception. Subject to the provisions of sections seven
hundred and forty-two and seven hundred and forty-three, tran-
scripts and transmissions of parts of records, made pursuant to the
foregoing provisions of this section, shall constitute complete
records for the purposes of appeals.
§ 738. Time io which traascript mast he filed. The appellant shall file
the transcript in the office of the clerk of the Court of Appeals at
least twenty days before the first day of the second term of said
court next after the granting of the appeal, unless the court extend
the time ; as, for cause shown, the court may do. {See further as to
time to file transcript , sec. 745)
§ 739. Statement to he filed with transcript hy appellant. It shall be the
duty of the appellant to file with the transcript —
1. A statement showing —
a. The names of the appellants, accompanied by the word
" appellants."
b. The names of the appellees, accompanied by the word " appel-
lees;" or the words "unknown appellees," if their names be
unknown.
sustain the decision the appellant must can not be filed within time allowed by
include such paper, or this court will Code, but when the appellant is ready to
presume the decision appealed from to perfect the record when motion to dis-
bave been correct. Huffaker v. Bank, miss is made or before dismissal, the
13 Bush 644; Bowman v. Holloway, 14 court will permit him to do so. 86 Ky.
Bush 426. 504.
§ 738. (1) Time to file transcript When (3) This section is applicable to appeals
a transcript has in good faith been filed granted by clerk of Court of Appeals,
and is defective or contains only a part Wearen v. Smith, 80 K}'. 216.
of the record, a supplemental record may § 739. (1) Noo-rcsldeit— attorney for. The
be filed at any time before submission. clerk of the Court of AppeaU has no au-
Bush V. Lisle, 86 Ky. 504. thority to appoint a corresponding attor-
(2) The proper practice is to ask ney. The appointment must be made
further time to file transcript when it by the court. The affidavit must state
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872 APPEALS TO COURT OF APPEALS — HOW GRANTED. [tITLE XVIII
c. The term or day when the judgment appealed from was
rendered, and the page of the record on which it may be found.
d. Whether or not the appellant wishes to have a summons
issued, or a warning order made ; and, if any, for whom and to
what county the summons shall be issued; and against whom the
warning order shall be made.
. 2. An affidavit conforming to sections fifty-seven and fifty-eight,
if a warning order be desired.
[3. The appellant's assignment of errors, unless he shall have filed
it in the clerk's office of the inferior court pursuant to the provis-
ions of section seven hundred and thirty-seven.] (Words in brackets
repealed by act of 1884-.)
§ 740. Statemeot must be filed before appeal docketed. Ko appeal shall
be docketed by the clerk until the appellant complies with the pro-
visions of section seven hundred and thirty-nine, and if he fail to file
the transcript within the time allowed by section seven hundred and
thirty-eight, or by the court pursuant thereto, his appeal shall be
dismissed.
§741 [880] Appellee may file copy of record. The appellee may file an
authenticated copy of the record in the clerk's office of the Court of
Appeals with the same effect as if filed by the appellant.
§ 742 [881] Writ of certiorari — ^wheo may be issaed. If any party to an
appeal file in the clerk's office of the Court of Appeals his affidavit,
or that of his attorney, that the judge of the inferior court has
refused or failed to order the clerk, as is authorized by subsection two
of section seven hundred and thirty-seven, to copy a material part of
that the person against whom the warn- 171 ; but in Doty v. Trustees, 12 R. 904,
Ing order is desired is a non-resident of where a judgment was reversed because
this State, and believed to be absent of failure to serve summons, the appel-
therefrom. The court will not dismiss lee was afterward permitted to have
the appeal because the affidavit is de- record corrected by showing that process
fective, but will quash the warning or- was executed and the case was then af-
der. Arthurs v. Harlan, 78 Ky. 138. firmed ; and see Stanford v. Parker, 13
(2) This section applies to appeals R. 878, where court refused to permit
granted by clerk of Court of Appeals. party to have error corrected ; the cir-
Wearen v. Smith, 80 Ky. 216. cumstances however being different from
§742. (1) Defects la record— bow sup- Doty case; and in Long v. Kerrigan, 13
plied. When the record is defective by R. 433, the court permitted record to be
reason of a clerical misprision time will corrected.
be given by the court to have it corrected (3) The Court of Appeals will, of their
and brought up by certiorari. Williams motion, award a certiorari to the clerk of
V. Thompson, 80 Ky. 325. the inferior court where there is a strong
(2) A rehearing will not be granted in presumption from the facts appearing in
order to enable the parties to perfect the the record that the clerk has copied a
transcript, Yeager v. Groves, 78 Ky. paper erroneously. Franklin v. Hall, 16
278 ; Christopher v. Searcy, 12 Bush B. M. 472.
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TITLE XVin] APPEALS TO COURT OF APPEALS — HOW GRANTED. 373
the record — which shall, in general terms, be described in the affi-
davit— or shall file in said office a statement of himself, or of his
attorney, that the clerk of the inferior court has refused or failed to
copy a part of the record which a judge pursuant to subsection two
of section seven hundred and thirty-seven, or which a party pursuant
to subsections three, four, five, six or seven, of section seven hundred
and thirty-seven, may have ordered to be copied — which parts of the
record shall, in general terms, be described in the statement — the
clerk of the Court of Appeals shall, upon the application of such
party, issue a writ of certiorari^ describing, in general terms, such
omitted parts of the record, and commanding the clerk of the inferior
court, forthwith, to transmit copies thereof to the Court of Appeals.
§ 743 [MS] Court may issae certiorari or order original papers filed. 1. If the
appellees, having been defendants in the original action in the inferior
court, be under any disability, other than coverture, or infancy and
coverture combined, the Court of Appeals may, by writ of certiorari
directed to the clerk of the inferior court require him to transmit a
transcript of such parts of the record as the parties may have failed
to require him to copy.
2. The Court of Appeals, if satisfied that a view of any part of
a record may be important to a correct decision of an appeal ; or
that the copying of any part of a record would cause great and
unnecessary cost or delay, may, by a writ of sabpmna duces tecum
directed to the clerk of the inferior court, cause him to transmit
such part of the record to the clerk of the Court of Appeals. It
shall be identified by the clerk of the inferior court, by his cer-
tificate indorsed thereon or appended thereto; and, after the cause
shall have been decided by the Court of Appeals, shall be returned
by its clerk to the clerk of the inferior court, and be kept by him
subject to the order of the inferior court. The cost of such trans-
mission and return shall be paid by the party at whose instance
the transmission is made, and be taxed as part of the costs.
§ 744 [8881 Costs — ^appellaat may be required to secure. The appellant may
be required to give security for costs, as plaintiff's in civil actions
may be so required {See as to security for costs, see. 616,)
1 743. Sabpoena daces tecam. The court the bill of exceptions. Meaux v. Meaux,
will not grant the writ of subpoena duces SI Ky. 475; see further, notes to sec. 742.
Ueum that the original bill may be in- § 744. (1) Costs. An attorney prose-
spected unless there is an affidavit that cuting an appeal for a non-resident de-
the instniotions embodied in the bill fendant is not liable for costs. Christmas
were not those oflfered, given or refused v. Russell, 2 Met. 112.
by the court on the trial, and so with (2) Appellants may be required to
reference to any exhibit made part of give security for costs where they would
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SUPERSEDEAS ON APPEALS.
[title xvin
§ 745 [8841 Limitotioo of rifht to appeal. An appeal shall not be granted
except within two years next after the right to appeal first accrued,
unless the party applying therefor was then a defendant in the
action, and an infant not under coverture; or of unsound mind; or
a prisoner who did not appear by his attorney — in which cases an
appeal may be granted to such parties, or their representatives, with-
in one year next after their deaths or the removal of their disabili-
ties, whichever may first happen. (See further as to time to appealy
sec. 738.)
§ 14A [885] Tax 00 appealjs. The tax on an appeal shall be one dollar.
CHAPTER II.
SUPERSEDEAS ON APPEALS.
§ 747. Supersedeas to stay proceedings — practice as to injunctions.
§ 748. Supersedeas bond— conditions of.
§ 749. Cleric wlio shall take bond and issue supersedeas.
§ 750. Supersedeas may be discharged if bond insufficient.
§ TSl. Part of judgment may be superseded.
§ 752. Supersedeas defined.
§ 747 [8tf] << Supersedeas to stay proceediofs — practice as to iojaoctioas. An
appeal shall not stay proceedings on the judgment unless a superse-
If plaintiffs be so required. Paducah
Hotel Co. V. Long, 92 Ky. 278.
§745. (1) Infants — limitation. Where
a decree was rendered at the joint in-
stance of several parties, some oT whom
were adults and some infants, one of the
infants could not alone prosecute an ap-
peal when the right of all the others to
appeal had been barred. The right of
appeal in such case being barred as to
one was barred as to all. Helm v. Bent-
ley, 1 Met. 510. Nor can the wife ap-
peal from a joint judgment against her-
self and husband when his right to ap-
peal is barred. Farlee v. Rodes, 11 Bush
305.
(2) infants— 4ippeal by. An infant ma}-
appeal at anytime before arriving at the
age of twenty-one, but such appeal will
be a bar to any appeal after arriving at
age. Moss v. Hall, 79 Ky. 40 ; and see
note 5 to sec. 391.
(3) Guardian ad litem may prosecute
an appeal in the name of and for the in-
fants, although the statutory guardian
has accepted the amount adjudged in
their favor by the circuit court. Reed
V. Bridge Co., 8 Bush 69.
(4) Limitation most bt pleaded. Where
an appeal is sought to be dismissed on
the ground that it is barred by limita-
tion, the statute must be pleaded. A
motion to dismiss will not be considered.
Riley v. Reed, 13 Bush 411.
(5) Time— bow computed. It was held
under a statute providing that an appeal
should not be granted ** except in three
years after the judgment," that the day
on which judgment was rendered must
be counted. Chiles v. Smith, 13 B. M.
461.
§ 746. Tax on appeal. It is the duty of
the clerk to require the tax to be paid
before he grants appeal or files the rec-
ord, but his failure to require payment
of tax will not be cause for dismissing
appeal. Emerson v. Dye, 81 Ky. 660.
§747. (1) Cross-appeal— supersedeas.
Appellee who prosecutes a cross-appeal
may supersede the judgment on his cross-
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TITLE XVIIl] BUPEBSBDBAS ON APPEALS. 875
deas be issued. The provisions of the Civil Code concerning super-
sedeas on appeals shall not apply to judgments granting, modifying,
perpetuating or dissolving injunctions. When an appeal shall be
taken from any judgment granting, modifying, perpetuating or dis-
solving any injunction, the court which rendered the judgment may,
in its discretion, if the ends of justice so require, at the time the
appeal is taken, make an order suspending, modifying or continuing
the injunction during the pendency of the appeal, upon such terms
as to bond or otherwise as may be proper for the security of the
rights of the opposite party. Either party, within twenty days after
the entry of such order, may take a transcript of the record, or all
parts thereof appertaining to the injunction, and upon reasonable
notice in writing to the opposite party, move the Court of Appeals,
or, if in vacation, any judge thereof, to revise the order of the lower
court, and finally determine how far the injunction shall be sus-
pended, modified or continued pending the appeal. Pending such
application to the Court of Appeals or judge thereof, but not longer
than for twenty days, the status existing immediately before the
entry of the judgment appealed from shall be maintained, and the
lower court shall so provide in the judgment upon the request of
either party. K, at any time, upon reasonable notice to the party
affecting, it may be made to appear that the sureties upon the bond
required in the court below are insufficient, the Court of Appeals,
or a judge thereof in vacation, may set aside the order suspending,
modifying or continuing the injunction pending the appeal, unless
sufficient surety be furnished by a day fixed by the court or judge."
(Sec. as amended by act of 1894-)
appeal, but the bond must be approved by Appeals, the appellee is entitled, upon
the court and not the clerk. Gov. Transfer motion made in the Court of Appeals, to
Co. V. Piel, 9 R. 665 ; and where appellee have the supersedeas discharged with
supersedes jiidgment and prevents appel- damages. City v. Elrod, 14 Bush 216.
lant from enjoying benefit of his judgment (3) Order of sapersedeas mut issoe.
he is not entitled to the ten per cent Damages will not be awarded on the af-
damages ordinarily allowed. Cov. Trans- firmance of the judgment unless an or-
fer Co. V. Piel, 87 Ky. 267 ; when judg- der of supersedeas is issued. The judg-
ment is affirmed on original and reversed ment is not superseded by the execution
on cross-appeal appellee is not entitled to of the bond, nor until the order of super-
damages. Wade V. First Nat. Bank, 11 sedeas has issued. Reed v. Lander, 5
Bush 697, and see note 10, sec. 757. Bush 598 ; Jones v. Green, 12 Bush 127.
(2) Dlscbarse of supersedeas. Where an (4) The law does not require any record
appeal is prayed in the lower court, and of the issual of the order of supersedeas,
a supersedeas bond executed in that and when the bond has been executed,
court and an order of supersedeas issued, unless it appears that no order of super-
if that appeal is abandoned and an ap- sedeas was issued, the presumption will
peal granted by the clerk of the Court of be that one was issued, and this pre-
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SUPERSEDEAS ON APPEALS.
[title xvm
§ 748 it8T] Supersedeas bond — conditioiis of. A supersedeas shall not be
issued, until the appellant cause to be executed before the clerk of
the court which rendered the judgment, or the clerk of the Court of
Appeals, by one or more sufficient sureties, to be approved by such
clerk, a bond to the effect that the appellant shall pay to appellee all
costs and damages that shall be adjudged against the appellant on
the appeal; also, that he will satisfy and perform the judgment
sumption will not be overcome by the
certificate of the clerk that he does not
remember to have issued the order.
Whitehead v. Boorom, 7 Bush 399.
(5) See further, notes to sees. 748, 749.
§ 748. (1) Appellant is not required to
sign bond. Gilpin v. Hord, 85 Ky. 213,
(2) Cross-appeal— supersedeas. See note
1, sec. 747.
(3) Dainases. Where a judgment for
money which is superseded does not
bear interest, the plaintiff, in an action
on the bond, is not entitled to interest by
way of damages ; he is only entitled to
the ten per cent damages allowed by sec.
704. L. & N. R. R. V. Sharp, 91 Ky.
411 ; and see note 1, sec. 747.
(4) Effect of. Whether or not the ap-
peal is properly prosecuted is a question
for the Court of Appeals to determine,
and until it has passed on the question the
supersedeas stays proceedings on judg-
ment. Daugherty v. Ringo, 1 R. 272.
(5) After a supersedeas bond has been
executed and supersedeas issued, the ap-
pellee has no power to bring a suit on the
judgment or otherwise enforce its collec-
tion pending the appeal. His remedy is
on the bond. Johnson v. Williams, 82
Ky. 45.
(6) Injaoctloo— mandamu. Itwasheldin
Smith V. W. U. T. Co., 83 Ky. 269 ; K. &
I. Bridge Co. v. Krieger, 91 Ky. 625 ; and
E. R. R. Co. V. Ashland R. Co., 94 Ky.
478, that where an injunction was dis-
solved the execution of a supersedeas
bond and service of the order left the
injunction in full force. See now
sec. 747 as amended ; and the execution
of a writ of mandamus may be stayed
by supersedeas. Atchison v. Lucas, 83
Ky. 451.
(7) Jodfrneot io persooam and io rem —
cross-appeal. Where in an action to en-
force a lien on land judgment is rendered
for the debt and for a sale of the prop-
erty, if the entire judgment is super-
seded the plaintiff is entitled to damages
upon the affirmance of the personal
judgment, although the judgment for
the sale of the property is reversed.
Leopold v. Furber, 8i Ky. 214. When
the judgment is affirmed on the original
and reversed on the cross-appeal, the
appellee is not entitled to damages.
Wade v. First Nat. Bank, 11 Bush 697.
(8) Obligors in bood-UabiUty of. In a
contest between two creditors over a
fund due their common debtor, the
obligors in bond of creditor who super-
seded judgment directing payment of
fund to the other creditor are liable for
amount of judgment. Mahlman v. Will-
iams, 89 Ky. 282.
(9) After an execution issued on a
replevin bond had been levied on suffi-
cient property of the principal to pay it,
the judgment was superseded, and the
collection of the execution stayed. The
judgment being affirmed, the surety in
the replevin bond was compelled to pay it,
the principal being then insolvent. Held
that he could recover the amount so
paid from the surety in the supersedeas
bond. Kellar v. Williams, 10 Bush 216.
(10) A recovered a judgment against
B ; B filed petition in equity and en-
joined the collection of the judgment.
The injunction was dissolved ; B ap-
pealed and executed supersedeas bond.
The judgment being affirmed it was
held that the surety in the bond was not
liable for the amount of the judgment.
Steele v. Wilson, 9 Bush 699.
(11) Where a party could be proceeded
against in the county court, independent
of a judgment in the circuit court which
he had superseded, he was not liable on
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TITLE XVin]
SUPBRSEDBAS ON APPEALS.
377
appealed from, if it should be affirmed, and any judgment or order
which the Court of Appeals may render, or order to be rendered by
the inferior court, not exceeding in amount or value the original
judgment, and all rents, or hire, or damages to property, during the
pendency of the appeal, of which the ajjpellee is kept out of posses-
sion by reason of the appeal, (Farm of supersedeas and bondj page
650.)
§ 749 [•»•, 8tf] derk who shall take bond and imie supersedeas. 1. The bond
must be executed before the clerk of the court rendering the judg-
ment, if the appeal be granted by that court. In other cases, it
must be executed before the clerk of the Court of Appeals.
2. The clerk of the court rendering the judgment shall issue the
supersedeas, if the bond be executed before him before the expira-
the supersedeas bond executed to stay
proceedings in the circuit court, except
for such damages as may have resulted
from the stay of proceedings on the
Judgment appealed from. Roberts v.
Jenkins, 80 Ky. 666.
(12) The appellee may sue on the
bond without issuing execution on his
Judgment against the defendant, but if
he causes execution to issue and it is
levied on the defendant's property, if -the
levy is released by the appellee, the
surety in the bond will be released. Dills
V. Cecil, 4 Bush 579. As to correction of
bond by lower court at term at which it
is executed, see Ross v. Wilson, 7 Bush 29.
(13) A surety in a bond superseding a
Judgment rendered against several is
liable if the Judgment is affirmed as to
any one of them. Bridgford v. Fogg, 12
R. 570 ; Gilpin v. Hord, 85 Ky. 213.
(14) Surety of cotenant in possession
of premises, who superseded Judgment
of partition, is liable for the value of the
rents of the property between execution
of bond and affirmance of Judgment.
Armstrong v. Bryant, 13 R. 128.
- (15) It is not necessary in order to re-
cover on bond that the court should
award damages upon the affirmance ; in
the absence of an order allowing dam-
ages, the sureties are liable for the judg-
ment, interest and costs. Gilpin v. Hord,
85 Ky. 213.
(16) Personal represeBtative. A personal
representative is not bound personally on
a supersedeas bond executed by him in
his representative capacity, and is bound
only to pay the damages and costs of the
appeal and the Judgment in case of af-
firmance out of the assets which have or
may come to his hands in the due course
of administration. Fitzpatrick v. Todd,
79 Ky. 524.
(1*^ Void order gnuitlBS appeal Where
the lower court granted the appeal at
the succeeding term after judgment was
rendered, the order was void, and the ap-
pellee is not entitled to damages on the
bond as a statutory obligation ; whether
it is valid as a common law bond not de-
termined. American Accident Go. v.
Reigart, 92 Ky. 142 ; and an appeal and
order of supersedeas granted by clerk of
Court of Appeals before expiration of
term of lower court at which judgment
was rendered are void and may be disre-
garded. Schmidt v. Mitchell, 95 Ky. 342.
(18) Wroof officer— executioo of bood be-
fore. Although the clerk who took bond
and issued supersedeas had no author-
ity to do so, if the supersedeas had the
effect to stay proceedings on the judg-
ment the obligors in bond are liable.
Spooner v. Best, 8 R. 185.
§ 749. (1) Issaiof of sapersedeas. A
supersedeas can not be issued by the
clerk of the court rendering the judg-
ment unless an appeal was granted by
that court. Jones v. Green, 12 Bush 127.
(2) See further, as to who must grant ap-
peal and take bond, note 17, sec. 748.
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378 SUPBRSBDBAS ON APPEALS. [tITLB XVni
tion of the time for filing a copy of the record in the clerk's oflice
of the Court of Appeals pursuant to section seven hundred and
thirty-eight. In other cases, it must be issued by the clerk of the
Court of Appeals.
* § 750 [tso] Supersedeas may be discharged if Iwiid iosnffficieiit. The appellee
may move the Court of Appeals, if in session ; or, on reasonable
notice to the appellant, may move a judge of said court in vacation,
to discharge the supersedeas ; and, if the court, or judge shall consider
the sureties insufficient, or the bond substantially defective in secur-
ing the rights of the appellee, the court or judge shall make an order
discharging the supersedeas, unless a good bond with sufficient
sureties be forthwith executed. The order, if made by a judge, shall
be in writing and signed by him ; upon the filing of which, or of a
certified copy of order, if made by the court, in the clerk's office of
the inferior court, executions and other proceedings for enforcing the
judgment may be immediately taken, as if no supersedeas had been
issued. But another supersedeas may be issued by the clerk of the
Court of Appeals upon the execution of a new and lawful bond, with
sufficient sureties, as hereinbefore provided.
§ 751 [s»i] Part of iadinnent may be superseded. The supersedeas may be
issued to stay proceedings on a part of a judgment, and in such case
the bond shall be varied so as to secure the part superseded.
§ 752 [•»!] Supersedeas defined. The supersedeas is a written order,
signed by the clerk, commanding the appellee and all others to stay
proceedings on the judgment or order.
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TITLB XVIIl] TRIAL AND DECISION. 879
CHAPTER m.
TRIAL AND DECISION.
§ 753. Appeal — ^when stands for trial.
§ 754. Docket arranged, printed, distributed by clerk.
§ 755. Cross-appeal — how taken.
g 756. Error must be substantial to authorize reversal — additional transcript.
§ 757. Dismissal of appeal — enforcement of judgment, effect on appeal.
8 758. Pleading to show cause for dismissal of appeal.
§ 759. Appeal taken for delay — motion to affirm.
§ 760. Rules of court — mandate, when to issue.
§ 761. Proceeding in lower court upon return of case.
§ 762. Mandates — power of court to enforce.
§ 763. Judgments that court will not reverse.
§ 764. Damages upon affirmance.
§ 765. Written opinions to be delivered.
§ 766. Reporter of court and duties.
§ 767. Provisions concerning revivor applicable.
§ 753 [8»s] Appeals — ^whcn staod for trial. Appeals shall stand for trial
during the first term twenty days before which the transcript is filed
in the clerk's office, if —
1. The appeal be granted by the inferior court ; or,
2. The appearance of the appellee be entered five days before
the day on which the case is set for trial on the docket ; or,
3. The appellee be summoned actually twenty days, or con-
structively thirty days, before said day.
§ 754 [•»«] Docket arraoged, printed, distributed by clerk. 1. The clerk shall
arrange the appeals upon the docket, setting a proper number for
each day of the term ; and in arranging them may have due regard
to the convenience of litigants, in placing together the appeals from
the several judicial districts.
2. He shall, at least fifteen days before each term, furnish a copy
of the docket to the public printer ; who shall immediately print
not less than five hundred copies thereof, and send one of said
copies to the clerk of each circuit court, chancery court and court
of common pleas, for public use ; and the claim of the printer shall
be approved and certified by the court, and be paid as other claims
upon the treasury.
§ 755 [8»B] Cross-appeal — how taken. 1. The appellee [if he have filed
§ 755. (1) Cross-appeal. If a cross- appellant. No schedule is required
api)ea] is desired the appellee may file when the entire record is copied. L. &
his schedule in the court below, either N. R. R. Co. v. Brice, 83 Ky. 210; but
before or after the schedule is filed by the party taking cross-appeal has right to
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380
TRIAL AND DECISION.
[title xvni
an assignment of errors in the clerk's office of the inferior court,
pursuant to the provisions of subsections four and seven of sec-
tion seven hundred and thirty-seven ; or, in any case, upon filing
such assignment in the Court of Appeals] may obtain a cross-appeal,
at any time before trial, by an entry on the records of the Court of
Appeals. ( Words in brackets repealed by act of 1884^,)
[2. The failure of the appellee to take a cross-appeal after assign-
ing cross-errors pursuant to the provisions of subsections four or
seven of section seven hundred and thirty-seven, and not other-
wise, shall bar his right to an appeal.] ( Words in brackets repealed
by act of 1884)
3. The failure of an appellant to prosecute an appeal, or his
dismissal of it [after the appellee shall have assigned cross-errors
pursuant to the provisions of subsections four or seven of section
seven hundred and thirty-seven, or subsection one of this section],
shall not prevent the appellee from prosecuting a cross-appeal.
( Words in brackets repealed by act of 1884.)
§ 756 [s»e] Errors must be substantial to authorize reversal — ^additioflal record may
be filed. 1. [Every appellant or cross-appellant must, by his assignment
of errors, specify the particular errors on which he means to rely ; and
file schedule and cause entire record
copied, and if he fail to do this it will be
presumed that omitted record will sus-
tain judgment against him. Adams v.
Bement. 16 R.—
(2) A cross-appeal can not be consid-
ered when the parties to be affected by
it are not before the court. Daviess Co.
V. Howard, 13 Bush 101.
(3) *♦ The legal effect of the affirmance
on the original appeal, there being a re-
versal of the judgment on the cross-
appeal, was not to leave the judgment un-
reversed, but to decide that there was no
error to the prejudice of the appellant,
and that he was not entitled to a revers-
al." In such case the appellee is not
entitled to damages on the bond exe-
cuted by the appellant. Wade v. First
National Bank, 11 Bush 697.
(4) Cross-appeal is only allowable in be-
half of the appellee against the appel-
lant and not against a co-appellee. Smith
V. Bank, 1 Met. 575 ; Gaar v. Banking
Co., 11 Bush 180; Home Ins. Co. v.
Gaddis, 3 R. 159.
(5) When either party appeals from a
final judgment his adversary may have
a cross-appeal for the purpose of correct-
ing any error to his prejudice or any
interlocutory order that controlled or in-
fluenced the judgment, but he can not
have a cross-appeal from a judgment
wholly distinct from the judgment ap-
pealed from. Brown v. Vancleaye, 86
Ky. 381.
(6) Cross-appeal can not be granted
by circuit court. Murphy v. Blandford,
11 R. 125 ; it must be granted by Court
of Appeals. Mud v. Mullican, 11 R. 417.
(7) Appellee prosecuting cross-appeal
may supersede judgment on his cross-
appeal, but the bond must be approved
by court and not clerk. Cov. Transfer
Co. V. Piel, 9 R. 665; and see note 1,
sec. 747.
(8) Cross-appeal must be heard with
the original appeal. 9 R. 665.
§ 756. (1) Cbanse la law. A judgment
which was right when rendered will not
become erroneous by a subsequent
change in the law, and will not for such
reason be reversed. Parrish v. Hill, 3
Duv. 396.
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TITLB XVni]
TRIAL AND DECISION.
381
no others shall be passed upon by the court], nor shall a judgment be
reversed or modified, except for an error to the prejudice of the sub-
stantial rights of the party complaining thereof; but the Court of
Appeals may, on motion, after ten days' notice to the adverse party,
(2) Costs 00 appeal As to discretiou of
cjurt in awarding see Ky. Stat., sec.
891, and CJounts v. Kitchen, 87 Ky. 47.
As to effect of tender before appeal taken,
see Ky. Stat., sec. 800.
(3) Error most be sabstaotiaL To au-
thorize a reversal the error complained of
must affect the substantial rights of the
appellant, and that it does so affect them
must as clearly ap|)ear as the error itself.
Williams v. Rogers, 14 Bush 776. And
thte Court of Appeals will presume that
the decision of the lower court is correct,
unless it affirmatively appears from the
record that the decision complained of is
erroneous. Huffaker v. Bank, 13 Bush
644 ; Bowman v. HoUoway, 14 Bush 426.
(4) A judgment against a divorced
wife, and also against her late husband,
for her debt; as to him, to be levied on
any property received from her during
marriage, although erroneous as to him
is not prejudicial to her. Joyes v.
Hamilton, 10 Bush 544.
(5) An error in not directing the com-
missioner to sell only enough land to pay
the debt will not be available when the
entire tract sold for less than the amount
of the debt. Doughty v. Moss, 1 Bush
161.
(6) Although a deposition was erro-
neously rejected, the court will consider
the effect of it, and if, when admitted, it
would not change the result, the case
will not be reversed on that ground.
Walrath v. Viley, 1 Bush 266 ; Millett v.
Parker, 2 Met. 608 ; Tudor v. Tudor, 17
B. M. 383. So with evidence rejected.
Smith V. Bank, 1 Met. 575.
(7) The refusal of the court to allow a
party to testify will not authorize a re-
versal when it does not appear that he
would have stated any fact beneficial to
himself. Francis v. Com., 3 Bush 4.
(8) Refusal of court to pass upon ex-
ceptions to depositions on the ground
that they are incompetent and irrelevant
will not warrant a reversal, when the
depositions are competent and relevant.
Root V. Merriwether, 8 Bush 397. Nor
is an error in overruling a demurrer to u
pleading prejudicial when no instruction
based on the pleading is given. Beaven
v. Phillips, 83 Ky. 88.
(9) An error in refusing to strike out
Irrelevant matter in a pleading will not
warrant a reversal unless it appear that
the party was prejudiced by the error.
Buckles V. Lambert, 4 Met. 330.
(10) An error of five dollars in amount
of judgment is too small to authorize a
reversal. German Ins. Co. v. Landram,
88 Ky. 433 ; as is an error of thirty-five
dollars in a case involving many thou-
sands. Seller v. Northern Bank, 86 Ky.
128. Nor will an error of six dollars and
fifty cents in the judgment against the
appellant justify reversal. Moore v.
Estes, 79 Ky. 282.
(11) Joint aod several Judfoieot A judg-
ment against persons jointly liable is an
entirety, and if void as to one is void as
to all ; but where it is several as to the
parties it may be reversed as to one and
affirmed as to another. Joyes v, Hamil-
ton, 10 Bush 544.
(12) Jndfrneot correct, bot reason wronf.
A correct judgment must be affirmed,
although it may have been erroneously
made, to rest on a different ground by
the lower court. Poor v. Robinson, 13
Bush 290; or given for a wrong or in-
sufficient reason. Ireland v. Berry man,
3 Bush 356 ; American Nail Co. v. Bay-
less, 91 Ky. 94.
(13) Reversal with direction to enter Judf
ment in a common law case is not an
invasion of the right of trial by jury
where the evidence wholly fails to sus-
tain the verdict rendered. Rosenfield v.
Gloldsmith, 11 R. 662; and court may,
when a new trial has been granted and
there is an appeal from second judg-
ment, direct entry of first judgment.
Couadeau v. Am. Ace. Co., 95 Ky. 280;
in Mendenhall v. Tungate, 95 Ky. 208, in
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TRIAL AND DECISION.
[title xvni
or his attorney, allow a party to file a transcript of an additional por-
tion of the record. (Sec. as amended by act 1880; words in brackets
stricken out by act 1884^)
§ 757 [•91] Dismissal of appeal— eoforcement of Judfineiit, effect oo appeal. If
it appear from the record that an appeal was improperly granted, or
that the appellant's right to prosecute it further has ceased, the
appellee may, upon stating the grounds, in writing, move the court
to dismiss the appeal. The motion shall not be heard without the
reversing a will case the court directed
county court to reject will.
(14) Three verdicts. Where there have
been three verdicts for the same party
the court will not disturb the last one,
although the weight of evidence is
against it. L. & N. R. R. Co. v. Graves,
78 Ky. 74; Sand ford v. Smith, 5 Bush
471. See sec. 341.
(15) Verdict against evidence. The court
will not reverse on the ground that the
verdict is not sustained by the evidence,
unless it is clearly and palpably against
the weight of evidence. Sand ford v.
Smith, 5 Bush 471 ; Becker v. Crow, 7
Bush 198; Varble v. Bigley, 14 Bush
098 ; Com. v. Williams. 14 Bush 297.
(16) The judgment of the court, when
the law and facts are submitted to the
court, will not be disturbed unless fla-
grantly against the evidence. Helm v.
Coffey, 80 Ky. 176 ; Russell v. M. & C.
T. Co., 13 Bush 307 ; Coleman v. Meade,
13 Bush 358 ; 12 Bush 451 ; 12 Bush 469 ;
and see n(>te 1, sec. 10.
(17) Waiver of error. No error can be
taken advantage of on the appeal unless
it was relied upon in the grounds for a
new trial. Com. v. Williams, 14 Bush
297; McLain v. Dibble, 13 Bush 297;
Alexander v. Humber, 86 Ky. 565. See
further, notes to sees. 333, 335, 340.
fl8) Unless there is a motion and
grounds for a new trial there is nothing
before the court except the sufficiency
of the pleadings. Helm v. Coffey, 80
Ky. 176 ; Henderson v. Dupree, 82 Ky,
678; Harper v. Harper, 10 Bush 447 ; see
further, note 31 to sec. 340.
(19) In an action attacking a convey-
ance as fraudulent, it is too late to object
for the first time in Court of Appeals
that plaintiff did not have a " return of
no property." Behan v. Warfield, 90 Ky.
151 ; and see further, as to waiver, Hare
V. Anderson, 12 R. 303 ; Brown v. Van-
cleave, 14 R. 821 ; and see further, as to
waiver by failure to take proper excep-
tion, notes to sees. 333. 335.
§757. (1) Dismissal of appeal— parHal
IndfoieBt When an appeal is sought to be
dismissed on the ground that it is barred
by limitation, a written plea must be
filed. The objection can not be made by
motion. Riley v. Reed, 13 Bush 411.
(2) A motion to dismiss an appeal on
the ground that appellant had compro-
mised with appellee will not be enter-
tained unless the plea is presented by a
verified answer, as required in sec. 758.
Empire Co. v. Mcintosh, 82 Ky. 554.
(3) The fact that appellant had agreed
to pay, and appellee to receive, a less sum
than the judgment as a compromise in
full satisfaction of the judgment ap-
pealed from can not be pleaded in the
Court of Appeals to show that appellant
had no right to prosecute the appeal.
Parks V. Doty, 13 Bush 727.
(4) Accepting satisfaction of judg-
ments bars right of appeal. See notes 1,
2, 3, sec. 734; but where party only re-
covers judgment for part of debt that he
sues for he may enforce collection of that
part and appeal as to part he failed to re-
cover. O'Connor v. Henderson Bridge
Co., 95 Ky. 633.
(5) Whenever any person occupying a
fiducial relation resigns or is removed
from ofllce his right to prosecute an ap-
peal terminates, and this fact may be
brought to the notice of the court by an
answer; so, when the right of a bank*
rupt passes to his assignee. Parks v. Doty,
13 Bush 727.
(6) When appellant dies after Judgment
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TITLis XVni] TRIAL AND DECISION. 883
appellant's consent, before the day on which the case is set for trial
on the docket, except upon five days' notice served upon the appel-
lant or upon his attorney of record. [But when a party recovers
judgment for only part of the demand or property he sues for, the
enforcement of such judgment shall not prevent him from prosecut-
ing an appeal therefrom as to so much of the demand or property
sued for that he did not recover.] {Sec, as amended by act 1880; words
in brackets added by act 1888.)
§ 758 [•»si Pleading: to show cause for dismissinn; appeal. If the facts men-
tioned in section seven hundred and fifty -seven be not shown by the
record, the appellee may plead them by a verified answer, to which
the appellant may file .a verified reply ; and the questions of law or
fact thereon shall be heard and determined by the court on or after
the day on which the case is set for trial on the docket.
§ 759 i«t9i Appeal taken for delay — motion to affirm. If an appeal with a ^ ^««/«. Ki
supersedeas be taken for delay merely, the appellee may at any time
move the court to affirm the judgment as a delay case; before mak-
ing which motion, he or his council shall indorse on the record, in
substance, that he has carefully examined the record and believes
the appeal is prosecuted for delay merely; whereupon, the court
shall examine the record, and if they find no error in the proceed-
ings, and believe the appeal was prosecuted for delay merely, they
shall affirm the judgment.
§ 766 [»oo] Rules of court — mandate when to issue. 1. The Court of Appeals
may make rules for the convenient dispatch of business, the preser-
and before appeal, or pending the appeal, (10) Where a party fails to recover
his death should be taken advantage of amount he sues for he may enforce judg-
in the Court of Appeals by a plea under ment he does obtain, and appeal from
the provisions of sec. 758. When an ap- judgment against him as to balance of
peal is prosecuted in the name of a dead his claim, and if the appellee supersedes
person the judgment reversing the case the collection of judgment obtained and
is not void. Spalding v. Wathen, 7 Bush prays a cross-appeal, upon the affirmance
659; and see further, note 11 to sec. 734. of cross-appeal damages will be awarded
(7) The Court of Appeals will take on amount of judgment superseded,
judicial notice of the law of a case as O'Connor v. Henderson Bridge Co., 95
settled by the Supreme Court of United Ky. 633, and see further, as to damages
States. Alexander v. Gish, 13 R. 515. in appeal notes, sec. 748.
(8) Notice of motion to dismiss appeal » ^^ g^^ ^^^^3 1_3^ ^^^ 757^
is necessary if motion is made without
consent and before day case is set for S ^^9. Cross-appeaL Motion to affirm
hearing. Empire Coal Co. v. Mcintosh, cross-appeal as delay case will not be
5 R. 599. heard until original appeal is heard.
(9) If an appeal is irregularly granted Gov. Transfer Co. v. Piel, 9 R. 665.
the proper remedy is by a motion to dis- § 7M. (1) Defective record. A rehear-
miss the appeal or discharge the super- Ing will not be granted to enable the par-
sedeas. Schmidt v. Mitchell, 95 Ky. 342. ties to perfect the transcript. Yeager v.
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384 TRIAL AND DECISION. [TITLE XVIH
vation of order, the argumeiit of cases or motions, and the manner
and time of presenting motions or petitions for rehearing, therein;
and the time for issuing" its mandates and decisions, and the mode
of enforcing its mandates and orders, and may change the same:
Provided^ That no mandate shall issue, nor decision become final, until
after thirty days, excluding Sundays, from the day on which the
decision is rendered, unless the court, in delay cases, otherwise direct;
and, if said thirty days expire during a vacation or recess of the
court, a written order of one of its judges, filed in its clerk's office,
within said thirty days, shall have the same effect to suspend the
mandate, by allowing a petition for a rehearing to be filed, or by
allowing time to file such petition, as if such order were made by
the court. {Power to enforce mandates^ sec. 76^.)
2. The rules of said court in force when this Code takes effect,
and consistent with its provisions, shall continue in force until
changed by the court. {Rules of courty page 693,)
§ 761 [901] Proceedinp in lower court upon return of case. 1. Upon the affirm-
ance of, or the dismissal of an appeal from, a judgment for the payment
of money or delivery of personal property, the appellee may title in
the clerk's office of the inferior court a copy of the mandate of affirm-
ance or order of dismissal — upon which the clerk shall indorse the
time of its being filed; and, thereupon, such writs of execution may
be issued as if the mandate or order had been entered in the court.
Groves. 78 Ky. 278 ; Christopher v. by law or the permissioH of the court to
Searcy, ]2 Bush 171 ; and see further, as file a petition for a rehearing." L. & N.
to correction of record, after opinion R. R. Co. v. Turner, 81 Ky. 599.
has been delivered, notes 1, 2, sec. 742. (5) Powers of court. See Constitution,
(2) Where it is suggested that the rec- sec. 110, and Ky. Stat., sec. 949; and
ord is defective by reason of a clerical notes to sec. 762.
misprision, time will be given to have it * (6) Time mandate shall Issoe as provided
corrected in the lower court. Williams in this section applies only to civil cases ;
V. Thompson, 80 Ky. 325. in criminal cases mandate may issue
(3) Pinal termioatioo of case There is immediately. Nelson v. Com., 94 Ky.
no final termination of a case in Court of 594.
Appeals until the time for filing petition §761. (1) Mandate. "Wherever the
for rehearing has expired, or until peti- record, as it stood at the time the de-
tion has been filed and overruled. Cline cision was rendered, when considered in
V. Wrightson, 7 R. 215. connection with the opinion when de-
(4) Petition for rehearing. " All exten- livered, shows that the clerk has made a
sions of time for presenting petitions for mistake in entering the mandate, this
rehearing, unless otherwise expressed in court has power, at any rate during the
the order, should be counted from the succeeding term, to correct the error."
expiration of the thirty days allowed by Wade v. First Nat. Bank, 11 Bush 697 ;
law, and Sundays should be excluded and see Whitehead v. Boorom, 7 Bush
from the extension of time granted by 399 ; Finnell v. Jones, 7 Bush 359.
the court. Such motion, however, must (2) The mandate must be considered
be made while the party has the right with reference to the opinion preceding
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TITLE XVIU]
TRIAL AND DECISION.
385
2. If a judgment be reversed, and the case remanded for a trial,
or other proceedings, it shall stand for trial, or for such other pro-
ceedings, in the court whence the appeal was taken, at the next
succeeding term thereof: Provided, That the mandate of the Court
of Appeals be filed in the clerk's office of the lower court, and
notice thereof given to the adverse party, if he be in the county ;
or, if he be absent from the county, to his attorney, ten days before
the commencement of such term. Such case shall have the same
position on the docket of such court, as if no appeal had. been
taken; and, at any time after the mandate is filed and notice
thereof given, as aforesaid, either party may take depositions, as in
other cases.
it, and it must be entered before the
chanceUor has power to suspend the exe-
cution of the order directed by it, even
for good cause. Watson v. Avery, 3
Bush 635.
(3) The judgment ordered by the
mandate should be entered. The court
has no discretion concerning it. Scott
V. Scott, 9 Bush 174 ; McLean v. Nixon,
18 B. M. 708.
(4) The Court of Appeals has power by
rule against an inferior court to enforce
obedience to its mandate. Watson v.
Avery, 3 Bush 635 ; Smith v. Cochran, 7
Bush 548 ; and see note to sec. 762.
(5) When a cause has been heard by
the Court of Appeals and remanded to
the circuit court with directions to ren-
der a particular decree or judgment, the
cause is finally disposed of to that ex-
tent, and no pleadings can be filed in the
circuit court which will have the effect
of avoiding the mandate of the Court of
Appeals, unless the pleadings are of such
a character as would authorize a final
decree or judgment to be reviewed or va-
cated after the expiration of the term at
which it was rendered. Denny v. Wick-
liffe, 1 Met. 216 ; McLean v. Nixon, 18
B. M. 768 ; see Woodcock v. Bowman, 2
Duv. 508.
(6) ProccediBfs in lower coart When
opinion and mandate are filed in open
court no notice is required to be served
on the adverse party in order to give case
position it had on docket before appeal
was taken, and the case stands ready for
submission subject to an order of contin-
uance which the court may grant. Baker
V. Baker, 87 Ky. 461 ; but in Lloyd v.
Matthews, 92 Ky. 300, it is held that the
above quotation from Baker case was
obiter, and that where a case is reversed
it does not stand for trial or other pro-
ceedings at the next succeeding term of
lower court unless the mandate is filed
in the clerk's office and notice given ten
days before commencement of term ; and
this rule applies as well where the
mandate directs a particular judgment
to be entered as where case is remanded
for trial or further preparation.
(7) Restttntioii of property. Money re-
ceived under an erroneous judgment
before its reversal may be restored to
party entitled to receive it by rule of
court or by action on the return of case.
Defenses that arose after rendition of
erroneous judgment may be presented
against restitution, but defenses that
might have been or were relied on prior
to such judgment can not be. Gray v.
Patton, 3 R. 393 ; and see Hays v. Grif-
fith, 85 Ky. 375.
(8) Restitution of property sold under
a judgment declared by Court of Appeals
to be void ; chancellor has power to or-
der. Brown v. Vancleave, 14 R. 821 ;
and see further, Gregory v. Lltsey, 9 B.
M. 44 ; Dickerson v. Morgan, 8 Dana 130.
(9) Ordinarily, where there is no super-
sedeas, the plaintiff, who recovers in his
fiducial capacity and pays out the money
before a^ reversal of the judgment, will
not be i)ersonally liable. Sbultz v. Beatty,
6 R. 662.
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886 TRIAL AND DECISION. [TITLB XVIH
§ 762 [9ot] MMdfltM-^power of cotfrt to eitforce. I'he Court of Appeals
tnay enforce its mandates upon inferior courts and officers by fine and
imprisonment, which imprisonment may be continued until the man-
dates are obeyed. {Mandate when to issue, sec. 760.)
§ 763 [908] Judinneots that court will not reverse. Neither a void judgment,
nor a judgment against a defendant who shall have been only con-
structively summoned, and shall not have appeared in the action;
nor any judgment which can be set aside or modified by the court
which rendered it, upon motion made after the term during which it
was rendered, shall be reversed or modified by the Court of Appeals,
until a motion to set aside or modify the judgment shall have been
made in the inferior court and overruled. (Judgments that inferior
court may vacate or modify^ sees. 4-^4-^ 517, 618.)
§ 764 [904] Damaii:es upon affirmance. Upon the affirmance of, or the dis^
missal of an appeal from, a judgment for the payment of money, the
collection of which, in whole or part, has been superseded, as pro-
vided in chapter two of this title, ten per cent damages on the
amount superseded shall be awarded against the appellant.
§ 762. (1) Bflforcement of mandates. The
Court of Appeals can not undertake to
dictate or control the manner in which
the judgment of the lower court, when
affirmed by it, is to be enforced, unless
the court should absolutely refuse to en-
force it ; in such case mandamus might
be issued by Court of Appeals, but
where the lower court attempts to en-
force the judgment rendered on appeal
by a judgment, the remedy is by appeal.
Rohmeiser v. Bannon, 15 R. 114; see
further, notes 1-5, sec. 761.
(2) Powers of coort "This court has
no power to determine the question of
the liability of a sheriff for failing to
make money on an execution issued from
this court," but it has power to compel
obedience to its process. Marchand v.
Russell, 78 Ky. 517 ; see to the contrary,
Mitcheson v. Foster, 3 Met. 325.
(3) As to its power to punish for con-
tempt, see In re Wool ley, 11 Bush 95.
§ 763. (1) Clerical misprisloB. The
failure of the court to allow a credit of
forty-one dollars is not misprision, but a
reversible error. Tong v. Eifort, 80 Ky.
152. See further, as to misprision, Sees.
516, 517 and notes thereto.
(2) Noo-resideot. It was held under
the Code of 18.54 that a non-resident
might appeal for errors apparent in the
record without attempting to have judg-
ment corrected in lower court. See notes
to sec. 414. That Code, sec. 903, pro-
vided that '*a judgment or final order
shall not be reversed for an error which
can be corrected on motion in the infe-
rior court, until such motion has been
made there and overruled." Note differ-
ence between that section and this.
(3) Void lodgmeBt— notion to set aside.
A motion to set aside a void judgment
must be made and overruled in the lower
court before an appeal lies to reverse it.
Bullitt v. Com., 14 Bush 74 ; Easterling
V. Chiles, 93 Ky. 315 ; Louisville R. & L.
Co. V. Kerr, 78 Ky. 12 ; Curd v. Williams,
13 R. 855 ; but a party may waive objec-
tion to the hearing of an appeal from a
void judgment by failing to move to
dismiss appeal, and in such case the
opinion of Court of Appeals is binding.
Brown v. Vancleave, 14 R. 821.
§764. (1) Damaces oa affflnaaace. See
further, notes to sec. 748.
(2) The appellee is not entitled to dam-
ages against the appellant when the judg-
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TITLE XVin] TRIAL AKD DECISION. 387
[And upon the affirmance of, or the dismissal of an appeal from,
a judgment for money rendered against any insurance, railroad,
corporation or company, or against any corporation not created
by or organized under the laws of the Commonwealth of Ken-
tucky, ten per centum damages on the amount of the judgment
appealed from shall be awarded against the appellant, although
such judgment be not superseded. ( Words in brackets added by act
of 1888)
§ 7d5 [»ot] Writteo opinions to be delivered. The court must deliver
written opinions in all cases.
§ 766 [»oi] Reporter of court and duties. The reporter of the decisions of
the Court of Appeals shall make a brief statement of the facts
involved in the decisions, unless they be stated in the opinion of the
court, and a brief statement of the legal propositions of counsel on
both sides, and a statement of the authorities cited by counsel in sup-
port of each proposition. {See further as to reporter, Ky. Stat.j sec.
956.)
§ 767 [»07] Provisions concerning: revivor applicable. The provisions of title
eleven shall, so far as applicable, regulate cases in the Court of
Appeals.
[Sections seven hundred and sixty-eight to eight hundred and
thirty-six inclusive, related to the Louisville Chancery Court and
the Jefferson Court of Common Pleas, and being impliedly if not
expressly repealed by the new Constitution and laws made in pursu-
ance thereof are omitted, and in place thereof I have added the sec-
tions of the Ky. Stat, relating to courts having four judges and to
courts having continuous sessions; these laws will be found on
pages 563 and 557.]
ment of the lower court is affirmed on coostltutioiuil ? See opinion of superior
the original and reversed on the cross-ap- court in C, N. O. & T. R. R. v. Clark,
peal. Wade v. First Nat. Bank, 11 Bush 11 R. 808.
C97. (5) Void appeal No damages. Ameri-
(3) The claim for damages does not can Accident Co. v. Reigart, 92 Ky. 142 ;
constitute a lien upon the property of the and see notes 17, 18, sec. 748.
appellant. It is secured if at all by the § 767. Death of plaintiff in Judfaient.
sureties in the supersedeas bond. N. & Appeal — revivor. Hopkins v. Hopkins,
C. Bridge Co. v. Douglas, 12 Bush 673. 91 Ky. 310 ; Spalding v. Wathen, 7 Bush
(4) Is amendment to this section an- G59,
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888
CONCLUDING PROVISIONS.
[title xvni
CONCLUDING PROVISIONS.
g 837. Certain sections applicable to pending cases.
§ 838. Code regulates proceedings hereafter.
§ 839. Time of going into eflfect.
§ 837 [T4t, Tfs] Certain sectioos applicable to peoding cases. The provisions
of sections three hundred and thirty-three to three hundred and
thirty-nine, both inclusive, of section six hundred and five, section six
hundred and six, and of sections seven hundred and thirty-four to
seven hundred and sixty-seven, both inclusive, shall regulate future
proceedings in civil cases now pending; and, subject to those provis-
ions, such cases shall be governed by laws heretofore in force.
§ 838 rT4t, Tff. sTe] Code regulates proceedings hereafter. The provisions of
this Code shall regulate pleadings and practice in civil cases com-
menced hereafter in courts which now exist, or [which] may hereafter
be created ; and, as to such cases, laws within the purview of those
provisions are repealed; and this repeal does not revive any law
which may have been repealed by laws which are hereby repealed.
§ 839. Time of going into effect. This act shall take efl:ect on the Ist
day of January, 1877.
§ 837. Coostmction of sectioo. See Saun-
ders V. Moore, 14 Bush 97.
§ 838. Repealing provlsloos. In Newman
V. Ecton, 14 R. 793, it is held that the
Code did not repeal the provisions of the
Gen. Stat, concerning the sale of contin-
gent interests in real estate, but the pro-
visions of Statute referred to are omitted
from Ey. Stat., and also from editions of
Gen. Stat., edited by Bullitt & Feland,
upon the idea that they were at least
impliedly repealed by Code provisions,
and see Grigsby v. Barr, 14 Bush 330,
holding that where the Code provides a
method of procedure it is to be taken as
exclusive of all others. See further, notes
to sec. 16, where are cited the other cases
bearing on this question.
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THE CODE OF PRACTICE
IN
CRIMINAL CASES.
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THE CODE OF PEACTICB
IN
CRIMINAL CASES.
PRELIMINARY PROVISIONS.*
§ 1. Name of the act-^regulates all prosecutions and penal actions.
§ 3. Proceedings commenced before January 1, 1877.
§ 3. Laws within purview of Code repealed^-exoeption.
§ 1. Name of act — rei^alates prosecotloas and penal actions. That the pro-
visions of this act shall regulate the proceedings in all prosecutions
and penal actions in all the courts of this Commonwealth, from and
after the first day of January, 1877, and shall be known as "The Code
of Practice in Criminal Cases."
§ 2. Proceeding commenced prior to January 1, 1877. That all prosecu-
tions or proceedings in criminal or penal cases, which shall be com-
menced before the first day of January, 1877, and which, by the
existing laws, would be valid, shall not be rendered invalid by this
act, but may be prosecuted to their conclusion, and enforced accord-
ing to the existing laws, as if this act had not been passed.
§ 3. Laws within purview of Code repealed — exception. That all laws
coming within the purview of this act shall become repealed when
this act goes into effect, except as provided in the preceding section.
*(1) ApplicatioB of Criminal Code. The (2) Conflict between Statntes and Code.
Criminal Code was intended to provide a In Com. v. Watts, 84 Ky. 537, the court
new and complete mode of procedure in say: ** It was not intended that either
all criminal and penal cases. It pre- the act adopting the Civil or the one
scribes the form and manner in which adopting the Criminal Code should repeal
indictments must be prepared and pre- the General Statutes as a whole or any
sented, and these regulations apply to all part thereof, except such as in the Ian-
prosecutions, whether for felonies or mis- guage of the repealing sections of both
demeanors. Com. v. Patterson, 2 Met. comes within the purview of the acts
374; and see further, as to application of respectively."
Code, Walston v. Com., 16 B. M. 15; (3) The words •* coming within the j
Com. V. Craig, 15 B. M. 534. purview" should be understood as repeal- :
(391)
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392 PUBLIC OFFBNSBS — PREVBNTING AND PROSBCUTINO. [TITLE I
TITLE I.
PUBLIC 0FFEN8ES AND THE MODES OF PREVENTING AND PROSE-
CUTING THEM.
§ 4. Public offenses defined.
§ 5. Divided into felonies and misdemeanors.
§ 6. Felony defined.
§ 7. Misdemeanor defined.
§ 8. Arrest of persons charged with offense.
§ 9. Indictable offenses — offenses not indictable.
§ 10. Offenses prosecutable by warrant or summons.
§ H. Offenses that may be prosecuted by penal action.
§ 12. Prevention of offenses.
§ 4 ri] Public offense defined. A public ofiense, in the meaning of this
Code, is any act or omission for which the law has prescribed a
punishment.
§ 5 rt] Divided into fdooies and oilsdemeaDors. Public offenses are felonies
and misdemeanors. {See same definition ^ Ky. Stat.y sec. 1127.)
§ k fs] Felony defined. A felony is an offense of which the punishment
is death, or confinement in the penitentiary.
§ 7 [«] Misdemeanor defined. All other public offenses are misdemeanors.
§ 8 [s] Arrest of persons ctiarged with offense. Persons charged with the
commission of a public offense shall be liable to be immediately
arrested and proceeded against in the manner hereinafter directed.
{By whom and how arrest made — proceedings upon, sees. 35 to 49i)
ing all acts in relation to all cases which ** there shall be no distinction in the
are provided for by the repealing act, construction of statutes between crimi-
and that the provisions of no act are nal or civil and penal enactments,
thereby repealed in relation to cases not All statutes shall be construed with a
provided for by it. 84 Ky. 537. view to carry out the intention of the
(4) Where some of the provisions of Legislature."
the General Statutes upon a particular (7) Provisioas of Civil Code do aot apply
subject are within the purview of the to proceedings under Criminal Code
Code and others are not, if to hold the unless it is so provided. The Civil Code,
former repealed and the latter not re- sec. OOC, provides that no prisoner in the
pealed leads to an absurdity, none of the penitentiary shall testify, but the court
provisions upon the subject is to be held held that this provision did not apply to
repealed. 84 Ky. 537. criminal prosecutions, and that a prisoner
(5) Coastrnctioaof statntes. In Buchan- might testify in a criminal case. Com.
non V. Com., 95 Ky. 334, the court v. Minor, 89 Ky. 555 ; and see Combs v.
held that the act of April 10, 1893— Com., 15 R. 600.
chapter 36, Ky. Stat., crimes and punish- (8) Repeal of statute does not affect
ments — was intended to be a complete prosecution for or punishment of crimes
system of statutory law relating to committed before its repeal. Ky. Stat.,
crimes and punishments, and repealed sec. 465 ; Waddell v. Com., 84 Ky. 276,
all existing statutes on that subject. Com. v. Sherman, 85 Ky. 686 ; Com. v.
(6) Sec. 459, Ky. Stat., declares that Duff, 87 Ky. 586.
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friTLE l] PUBLIC OFFENSES — PREVENTING AND PROSECUTING.
393
§ 9 [•] Ifldidable offeoses — offenses not Indictable. All public offenses may
be prosecuted by indictment, except —
1. Offenses of public officers, wbere a different mode of pro-
cedure is prescribed by law.
2. Offenses exclusively witbin tbe jurisdiction of justices of the
peace, or of police or city courts. {Jurisdiction of Justices j page 550 ^
Police Courts^ page 551)
3. Offenses arising in the militia, of which a military court has
exclusive jurisdiction. {See Ky. Stat.j sees. ^684-^687.)
§ 10 [T] Offenses prosecutable by warrant or summons. Offenses within the
jurisdiction of a justice of the peace, or of a city or police court, the
punishment of which is a fine limited to one hundred dollars, may
be prosecuted by a summons or warrant of arrest, in which shall be
stated, in general terms, the offense charged to have been committed.
(Form of warranty sec. 27 ; form of summons^ page 652 ; prosecution by
information^ see Ky. Stat.^ sec. 1141)
§ 11 [8] Offenses that may be prosecuted by penal action. A public offense,
of which the only punishment is a fine, may be prosecuted by a
penal action in the name of the Commonweath of Kentucky, or in
I 9. (1) Contempt The court has the
power to punish contempts in a suin<
mary way, and no indictment is neces-
sary. Arnold v. Com., 80 Ky. 300; and
flee In re R. W. Woolley, 11 Bush 95.
See city of Newport v. Newport Light
Co., 92 Ky. 445, and note difference be-
tween criminal and civil contempt.
(2) Joritdictton of Justices and Police
courts, see page 550 of this Code. Justices
of the peace and county judges have
jurisdiction of the offense of carrying
concealed a deadly weapon. Smith v.
Com., 3R.364.
(3) Militia. Jurisdiction of offenses
concerning. Ky. Stat., sees. 2684-2687.
I 11. (1) Penal action. The proceed-
ings in penal actions are regulated by
the Code of Practice in civil cases, and
when the matter in controversy does not
exceed fifty dollars the pleadings may
be oral ; section 705 Civil Code. Wilson
V. Com., 7 Bush 536.
(2) A person guilty of usurpation of
office may be proceeded against by in-
dictment or penal action ; and the right
of the Commonwealth to recover a fine
in either of these modes is not affected
by sec. 483 of the Civil Code. Com. v.
Adams, 3 Met. 7.
(3) A railroad company guilty of vio-
lating the Sabbath day may be pros-
ecuted by penal action. Com. v. L. &
N. R. R., 80 Ky. 291.
(4) A civil action may be maintained
to recover a fine or forfeiture. Com. v.
Sherman, 85 Ky. 686 ; Com. v. Avery, 14
Bush 625.
(5) Jurisdiction of courts. See Civil
Code, sec. 63 ; 85 Ky. 686.
(6) Pleading— practice. Action brought
in name of State of Kentucky may be
amended so as to read Commonwealth of
Kentucky, and no summons is necessary
on amendment. 85 Ky. 686.
(7) In a penal action for violating
Sabbath day, it is sufficient to aver that
acts complained of were done on the
Sabbath day without stating day of the
month. L. & N. R. R. v. Com., 92 Ky. 114.
(8) In the absence of a motion for a
new trial in penal actions, the only ques-
tion that can be considered on appeal is
the sufficiency of the pleadings to sup-
port the verdict and judgment. L. & N.
R. R. V. Com., 92 Ky. 114.
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894 CWMINAt JUWSDICTION OF THE COURTS OF THB STATE. [tlTLB II
the name of an individual or corporation, if the whole fine be given
to such individual or corporation. The proceedings in penal actions
are regulated by the Code of Practice in civil actions, ( Venue of
action^ Civil Code, sec. 63)
§ 12 [tj Preventiofl of offenses. The commission of public offenses may
be prevented by proceedings —
1. For suppressing riots, and resistance to lawful authority.
2. For requiring security to keep the peace, or for good behavior.
3. For arresting and confining insane, drunken and disorderly
persons, {Proceedings to suppress riotSy sec. 371 ; to keep the peace^
sec. 388; to arrest drunken persons ^ sec. 394..)
TITLE n.
CRIMINAL JURISDICTION OF THE COURTS OF THE STATE.
g 13, Jurisdiction of various courts,
§ 14. Indictment In circuit court-^jurisdlction.
§ 15. Removal of prosecutions from circuit to inferior courts.
§ 16. Grand jury to state where misdemeanor committed.
§ 17. Jurisdiction of Senate and Court of Appeals.
§ 18. Local jurisdiction of circuit and justices* courts.
§ 19. Local jurisdiction of police or city courts.
§ 20. Jurisdiction on river between counties,
§ 31. Prosecution in either of several counties — libel.
§ 32. Importing property into State— jurisdiction.
§ 33. Kidnaping — ^jurisdiction of offense.
§ 34. Trial in county of arrest — exception.
§ 35. Writs of prohibition from circuit court.
§ 13 [10] JnrisdictioD of various courts. The jurisdiction of the courts of
this Commonwealth, for the trial of oiFenses, shall be as follows :
1. Senate of Kentucky. The Senate of Kentucky shall have ex-
clusive jurisdiction of impeachments. {Constitution^ sec. 67)
2. Court of Appeals. The Court of Appeals of Kentucky shall
have exclusive jurisdiction of proceedings for the removal of clerks
of courts from office. {Constitution^ sec. 1^4)
§13. (l)Jori8dictioa. Removal of fence across a public road, where the tin^
clerks. See Constitution, sec. 134, and is one dollar for each day the fence is
Com. V. Rodes, 1 Dana 595; Com. v. allowed to remain, the prosecution may
Arnold, 3 Litt. 309 ; Com. v. Rodes, a be before a justice if the liability does
B. M. 171. not exceed ten dollars ; if the liability is
(3) Justices* and police courts— juris- over that amount the prosecution may
diction of. See pages 560, 551. be by indictment in Circuit Court. Com.
(3) In a prosecution for erecting a v. Mills, 6 Bush 396.
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MXLJ n] CRIMINAL JUEIgDICTION OP THE COUKTS OF THB STATB. 396
8. Circuit courts. The circuit courts shall have general juris-
diction for the trial of all prosecutions and penal actions, unless
exclusive jurisdiction be given to other courts. {Exclusive juriS"
diction of justices' courts^ see page 660 ; of police courts f page 661.)
4. CUy and police courts. City and police courts shall have
exclusive jurisdiction of all prosecutions and actions, for an infrac*-
tion of the by-laws or ordinances of the city or town in which
they are located, and concurrent jurisdiction with the circuit courts,
and justices' courts, of prosecutions for misdemeanors committed
in the town or city, the punishment of which is a fine not exceed-
ing one hundred dollars, and, also, such jurisdiction as is, or may
be, provided by the special statutes creating or regulating such
courts. (Jurisdiction of police courts page 661.)
6. Justices* courts. Justices' courts shall have jurisdiction, con-
current with city or police courts, but exclusive of circuit courts
(except of indictments in the circuit court against surveyors of
public roads), of prosecutions for offenses the punishment of which
is limited to a fine not exceeding ten dollars, and concurrent juris-
diction with the circuit courts in prosecutions for offenses the
punishment of which is limited to a fine not exceeding one hun-
dred dollars.
[Or imprisonment not exceeding fifty days, or both such fines
and imprisonment; and in all cases of riots, routs, breaches of
the peace, affrays and unlawful assemblies.
6. Judges of county courts. Judges of county courts shall have
the same original criminal jurisdiction as justices' courts.] {Words
in brackets added by acts 1878.)
§ 14 [11] lodictmcDt Id circuit court — ^lurisdictlon. If an indictment be
found in the circuit court for an offense within its jurisdiction, such
court shall have jurisdiction in that prosecution of all the degrees of
such offense, and of all offenses included in the one charged, although
some of those degrees or included offenses are within the exclusive
jurisdiction of an inferior or local court. ( What offenses included in
one charged; degrees of offenses defined^ sees. 26:2 to £66.)
§ 15 [It] Removal of prosecutioni from circuit to inferior courts. When pros-
ecutions have been commenced in the circuit court, of which a city,
(4) A city court having jurisdiction § 14. Jurisilictiofl. Where a city court
where the punishment did not exceed was given exclusive jurisdiction of of-
flve hundred dollars and imprisonment fenses under felony committed in city
for one year had no jurisdiction of of- limits, the circuit court under the gen-
fenses the punishment of which might ex- eral law had jurisdiction to punish a
oeed that limit. Flynn v. Com., 3 Bush 590. person for a misdemeanor that was a
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896 CRIMINAL JURISDICTION OP THE COURTS OF THE STATE. [tITLE II
magistrates' or police court has concurrent jurisdiction, they may, by
an order of the circuit court, be removed into such city, magistrates' or
police court for trial. Upon such order being made, the clerk of the
circuit court ishall deliver to the clerk of the city, magistrates' or
police court, all the papers relating to the prosecutions, and a copy
of the order of removal, and thereupon the defendant shall be bound
to appear in said police, magistrates' or city court, and the prosecu-
tion be carried on to final judgment and execution, as if commenced
in such court. {See as to jurisdiction of inferior courts^ see. 13; transfer
of misdemeanors to county courtj Ky. Stat.j sec. 1076.)
§ 1^ lit] Grand iuriesto state where niisdemeaiior coanitted. The judges of
circuit courts may require the grand juries, in prosecutions for mis-
demeanors within the local jurisdiction of city or police courts, to
state in the indictments that such misdemeanors were committed
within the town or city, or other local limits of the jurisdiction of the
city or police courts.
§ 17 [i«] Jurisdiction of Senate and Coort of Appeals. The jurisdiction of
the Senate and Court of Appeals embraces the whole Commonwealth.
§ 18 [15] Local jurisdiction of circuit and justices' courts. The local jurisdic-
tion of circuit courts and justices' courts shall be of offenses committed
within the respective counties in which they are held. {See further^
as to jurisdiction^ sec. 13 and Ky. Stat.^ sec. 1143)
§ 19 [It] Local jurisdiction of police or city courts. The local jurisdiction
of police or city courts shall be of offense, committed within the
limits of the jurisdiction of such courts, as prescribed by the special
statutes creating or regulating them. ( VHiat are police courts^ sec.
321. See further^ as to such courts , sec. 306 ^ and as to jurisdiction ^ page
551.)
§ 20 [IT] Jurisdiction on river l>etween counties. If a river be the bound-
lower degree of the felony for which he tried, although no evidence of county
was indicted. Com. V. Pointer, 5 Bush 301. was introduced. Com. v. Patterson, 10
I IS. (1) Evideoce — venoe. After the R. 167; and in Hays v. Com., 12 R. 611,
Commonwealth's attorney announced it is held that where evidence is intro-
through with his evidence, the question duced showing commission of crime in
was made that the venue of the offense a certain named precinct in county
had not been proven. The court should where trial is in progress, that a verdict
have permitted him to introduce evi- of conviction will not be disturbed
dence to show the venue. Com. v. Pat- although there is no proof of county in
terson. 10 R. 167. which offense was committed.
(2) Where evidence was introduced (3) Justices' coorts— |>risdictioi of. See
showing that an offense was committed page 550.
in the county seat town where trial was § 19. Police courts— Inrisdktioi of. See
in progress, the court and jury had the pa^e 551.
right to presume that the town referred § 20. Over Ohio river. The boundary
to was in county where case was being and jurisdiction of this State extend to
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TITLB n] CRIMINAL JURISDICTION OF THE COURTS OF THE STATE. 897
ary between two counties, the criminal jurisdiction of each county
shall embrace offenses committed on the river, or on any island
thereof. {See further^ Ky. Stat.^ sec. II4S.)
§ 21 [18] Prosecotiofl in either of several couoties — libel. If- an offense be
committed partly in one and partly in another county, or if acts and
their effects constituting an offense occur in different counties, the
jurisdiction is in either county. [But all prosecutions against per-
sons publishing a newspaper for any libelous matter contained
therein shall be had in the county where the same is printed and
issued, or in the county where the party complaining resides.]
{Words in brackets added by act 1886; and see further ^ Ky. Stat.j
sec, 1146.
§ 22 [19] Importiof property ioto State — ^jiirisdictioD. If the offense consist
of importing any property into the Commonwealth, the jurisdiction
shall be in any county into which the property may be imported.
§ 23 [SO] Kidaapinf — jarisdiction of offeose. If the offense consist of
kidnaping, or seizing or confining a person without lawful author-
ity, the jurisdiction shall be in the county in which the kidnaping,
seizing or confining was committed, or in any county in which it
was continued.
§ 24 [«i] Trial in county of arrest — exception. If the jurisdiction of an
offense be in two or more counties, the defendant shall be tried in the
county in which he is first arrested, unless an indictment for the
offense be pending in another county. {See further^ Ky. Stat., sec. 1145.)
low-water mark on the western or north- mitted in one county and the accessorial
western side of the Ohio river, and one acts are done in another, the accessory
who commits an offense on that river must be indicted in the county in which
may be punished by the courts of this the accessorial acts are done. Tully v.
State. McFaU v. Com., 2 Met. 394. See Com., 13 Bush 142.
Ky. Stat., sec. 1144. (4) Where false pretenses are made in
§ 21. (1) Jaritdiction. Receiving stolen Ohio and the money or property obtained
property, knowing it to be stolen, is a in this State, the indictment should
complete offense, and the circuit court be found in county of latter, where
of the county in which the property is money or property was obtained. Com.
received, and not of the county in which v. Van Tuyl, 1 Met. 1.
the larceny is committed, has jurisdic- § 22, Importlag property. Where a
tion of the offense. Allison v. Com., 83 horse was stolen in Tennessee and
Ky. 254. brought into this State and sold, the
(2) A thief can be indicted for a com- thief could be prosecuted in the county
plete larceny either in the county whete in which he disposed of the property,
he first took the property, or in any Ferrill v. Com., 1 Duv. 153.
county into which, the intent to steal § 24. Jaritdictlofl. Where a horse was
continuing, he carries it. Thomas v. stolen in M county and taken to B
Com., 12 R. 903; 83 Ky. 264; and see county and the thief there arrested and
Massie v. Com., 90 Ky. 485. carried back to and tried in M county,
(3) When the principal crime is com- the conviction in latter county was
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898 dtlMINAL JUKI8D10TI0N OF THE COURTS OF THE BTATE. [tITLB 11
§ 25 [««i Wrlt8 of prohlMtkm from circuit courts. The circuit court of any
county may, by writ of prohibition, restrain all other courts of infe-
rior jurisdiction in the limits of the county from exceeding their crim-
inal jurisdiction. {How writ obtained and prosecuted^ see Civil Code^ sec.
[Ky. Stat., § 1073.] Persoos ia ]ail cliarged with misdemeaoors — notice. Wlien
any person charged with a misdemeanor shall be lodged in jail in
default of bail, it shall be the duty of the jailer to at once notify the
county judge and county attorney of the fact, if the court in which
the prisoner has been indicted, or before which he has been ordered
to appear, is not in session.
[Ky. Stat., § 1074.] Trial of persons in jail charged with misdemeanors. The
judge shall thereupon direct the clerk of the circuit court to deliver
to him a certified copy of the record in his possession, by virtue of
which the prisoner was arrested and is detained, and shall, upon
receiving such record, order the prisoner to be brought before him at
the court-house, and give notice of the fact to the county attorney,
who shall prosecute. He shall give the accused notice of the charge
against him, and proceed at once to try the case, or fix a day for its
trial, and issue summons for such witnesses as may be needed by
either party. If the prisoner has no attorney, and is too poor to
employ one, the court shall, at his request, appoint an attorney to
defend him.
[Ky. Stat., § 1075.] Proceedings after jndfment. The trial and proceed-
ings after judgments shall be in all respects the same as if the case
was tried in the circuit court.
[Ky. Stat, § 1076.] Transfer of misdemeanor cases by circuit court If at
the end of any term of a circuit court, there shall be persons in jail
under indictment for misdemeanor, the court shall make an order
transferring all such indictments to the county court, and the circuit
clerk shall immediately upon the adjournment furnish a copy of the
record in such cases to the county judge, who shall proceed to try
such persons as hereinbefore provided.
[Ky. Stat, § 1077.] Appeals in misdemeanor cases. An appeal may be
taken from the judgment of the county judge in misdemeanor cases,
as provided in the Criminal Code in appeals in misdemeanor cases.
propel. The object of this section is to county officials for the purpose of being
prevent a conflict of jurisdiction where tried in that county, the M county court
it belongs to more than one county, and would not have had jurisdiction. Mas-
if the thief had been arrested by the B sie v. Com., 90 Ky. 485.
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TITLE in] WARRANT OF ARREST. 399
TITLE in.
PROCEEDINGS FOR THE ARREST OP CRIMINALS.
Chaptbr T. Warrant op arrest, 26.
II. Arhsst, by whom akd how madb« 35.
CHAPTER I.
WARRANT OP ARREST.
§ 26. Warrants, issual and execution — magistrates and peace officers.
§ 27. Warrant, requisites and form of.
§ 28. Persons arrested for misdemeanor may give bail — sheriff may take.
§ 29. Officer taking bail to fix day for appearance.
§ 30. Deviation from last section will not invalidate bond.
§ 31. Warrant, when magistrate shall issue — penalty.
§ 32. Examination of witnesses to ascertain offender.
§ 33. Return on warrant — what it shall state.
§ 34. Officer may transmit warrant by mail — when.
§ 26 [ts] Warraots, issual and execotioo — magistrates and peace officers. A
warrant of arrest may be issued by the following officers, who are
called magistrates in this Code, viz.: judges of the county courts,
judges of city or police courts, mayors, chairmen of the trustees of
towns and justices of the peace ; and may be executed by the fol-
lowing officers, who are called peace officers in this Code, viz.:
fiheriffs, constables, coroners, jailers, marshals and policemen.
§ 27 [S4] Warrant, requisites and form of. A warrant of arrest shall, in
general terms, name or describe the offense charged to have been
committed, state the county in which it was committed, and com-
mand the officer to whom it is directed to arrest the person named
therein as the offender, and bring him before some magistrate of the
county in which the offense was committed, to be dealt with accord-
ing to law. It may be substantially in the following form, varying
the terms to suit the case :
The Commonwealth of Kentucky to any sheriff, constable^ coroner^
jailer y marshal or poUcemaUy of the State of Kentucky :
It appearing that there are reasonable grounds for believing that
A B has committed the offense of larceny in the county of Frank-
I 27. laforouitioa. The same technical ing by information that is required in an
Strictness is not required in a proceed- indictment. Drisooll v. Oom^ 93 Ky* 893.
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400 WARRANT OF ARREST. [tITLB IH
lin, you are therefore commanded forthwith to arrest A B, and
bring him before some magistrate of Franklin county, to be dealt
with according to law.
, justice of the peace for Franklin county.
Summon as witnesses E F and J K, {See act at end of sec. 71.)
§ 28 [SB] Persons arrested for misdemeanor may ^ve bail — ^slieriff may talte.
If the offense charged be a misdemeanor, the person arrested
may immediately give bail for appearing on a day to be named in
the bail-bond, either before the magistrate who issued the warrant or
the judge of the county court, for an examination of the charge, or
before the court having jurisdiction to try the offense; and an in-
dorsement to that effect, stating the amount of the bail to be given,
and that the bail may be taken by the sheriff of the county where
the arrest is made or where the offense was committed [or by any
constable making the arrest] shall be made on the warrant of arrest,
and such indorsement shall authorize the sheriff, or his deputy [or
any such constable] to take the bail. {Words in brackets inserted by
act 1890. Form of bondy page 656 ; form of indorsement^ page 653 . Bail
may be sworn ; qualifications of sees. 76 ^ 77. Sheriff may take bail, sec.
88.)
§ 29 [t<] Officer takinf bail to fix day for appearance. If the defendant
give bail for his appearance before the magistrate for an examination
of the charge, as provided in the last section, the officer taking the
bail shall fix the day of the defendant's appearance, which shall not
exceed five days from the day of arrest, unless the arrest be made in
a different county from that in which the offense was committed, in
which case there may be one day added for every twenty miles of
distance of the place of arrest from the county in which the offense
is charged to have been committed.
§ 30 [ST] Deviation from last section will not invalidate. A deviation from
the provisions of the last section shall not, however, render the bail
bond invalid.
§ 31 [ts] Warrant — when ma^strate shall issue — penalty. A magistrate
shall issue a warrant for the arrest of a person charged with the com-
mission of a public offense, when, from his personal knowledge, or
from information given to him on oath, he shall be satisfied that
§ 28. (1) Ball—Sunday. A bail bond held on, and defendant admitted to bail,
executed or recognizance taken on Sun- 5 Bush 309.
day is binding. Rice v. Com., 3 Bush § 31. Warrant— Sooday. Warrant of
14; Watts V. Ck)m., 5 Bush 309. arrest maybe issued and executed on
(2) Saoday. Examining trial may be Sunday. Ky. Stat., sec. 4567; Rice v.
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TITLE in] WABRANT OF ARREST. 401
there are reasonable grounds for believing the charge. (Penalty for
magistrate issuing felony warrant except upon his own knowledge until
affidavit filed, Ky. Stat., sec. 137^)
§ 32 [S9] Examioatioii of witoesses to ascertaia offender. A magistrate, if
satisfied that a felony has been committed, shall have power to sum-
mon before him any person he may think proper for examination on
oath concerning it, to enable him to ascertain the ofiender and to
issue a warrant for his arrest. [A magistrate, if satisfied that any
public oftense has been committed, shall have power to summon
before him any person he may think proper for examination on oath
concerning it, to enable him to ascertain the ofiender, and to issue a
warrant for his arrest.] ( Words in brackets added by act 1884^.)
§ 33 [80] Ketom on warrant — ^what it shall state. The officer who has
executed a warrant of arrest shall make a written return on the war-
rant of the time and manner of executing it, and deliver the warrant
to the magistrate before whom the defendant is brought ; or, if bail
be given, as provided in section twenty-eight, the officer shall deliver
the warrant and bail bond to the magistrate before whom, or to the
clerk of the court in which, the defendant is bound by the bail bond
io appear.
§ 34 [81] Officer may transmit warrant by mail — ^when. If the arrest be
made in a different county from that in which the oftense is charged
to have been committed, and bail be there given, the officer may
transmit the warrant and bail bond by mail to the person to whom,
by the last section, he is required to deliver them.
Com., 3 Bush 14 ; Watts v. Com., 5 minister an oath, nor can a person be
Bush 309. legaUy sworn unless the matter concern-
§32. Coastroctionof section. Under this ingwhich the examination is had be a pub-
section a magistrate has no power to ad- lie offense. Kerfoot v. Com., 89 Ky. 174.
(28)
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402
ARREST, BY WHOM AND HOW MADB.
[titlb iir
CHAPTER 11.
ARREST, BY WHOM AND HOW MADE.
§ 35. Who may make arrest.
§ 36. Peace ofllcer may arrest — when.
§ 37. Private person may arrest — when.
§ 38. Magistrate or judge may orally order arrest.
§ 39. Person to be informed of intention to arrest and cause of.
§ 40. Door may be broken to arrest.
§ 41. Oiflcer may summon aid — penalty.
§ 42. Arrest — how made.
§ 43. Unnecessary force not to be used.
§ 44. Prisoner escaping may be pursued and recaptured.
§ 45. Officer arresting under warrant — how to proceed,
§ 46. Proceedings if arrest made without warrant — bail.
§ 47. Bond taken under last section sent by mail.
§ 48. Examination of charge by magistrate.
§ 35 [««] Who may arrest An arrest may be made by a peace officer
or by a private person.
§ 36 [88J Peace officer may arrest — ^wheo. A peace officer may make a^
arrest —
1. In obedience to a warrant of arrest delivered to him.
§ 36. (I) Arrest^Appoiatment of special
bailiff. ** There is no provision of the
Code authorizing any other person than
a peace officer to make an arrest in
obedience to a warrant of arrest." The
sheriff can not authorize a private per-
son to execute a warrant of arrest.
Salisbury v. Com., 79 Ky. 425 ; as to
the law concerning the murder of an
officer while attempting to make an
arrest, see Mockabee v. Com., 78 Ky.,
380; Fleetwood v. Com.. 80 Ky. 1;
Creightou v. Com., 84 Ky. 103; Creigh-
ton v. Com., 83 Ky. 142 ; Dilger v. Com.,
88 Ky. 550.
(2) In York v. Com., 82 Ky. 360. the
court held that a sheriff had a right by
an indorsement on a bench warrant to
authorize a private person to arrest the
defendant, but such person had no right
to go out of county to make arrest.
(3) Peace officer— arrest A peace offi-
cer can only make an arrest without a
warrant *' when a public offense isi com-
mitted in hia presence, or when he has
reasonable grounds for believing that the
person arrested has committed a felony."
Wright v. Com., 85 Ky. 123; Bates v.
Com., 13 R. 132 ; and this provision
applies to policemen in the city of
Louisville. Jamison v. Gaernett, 10 Bush
221.
(4) When a public offense is commit-
ted within the hearing of a peace officer,
and when he is so near that he can not
be mistaken as to the offender, it is com;
mitted within his presence in the mean-
ing of this section, and he may arrest
without a warrant. Dilger v. Com., 88
Ky. 550.
(5) It is the duty of a peace officer to
arrest any drunken person who is at
large and not in the care of some discreet
person, and it is not necessary that he
should be so drunk as to be annoying to
others. Wing v. Com., 7 R. 216.
(6) One who is not a peace officer,
dejure or de facto does not, by assuming to
exercise the duties of such an officer,
acquire any more authority to make an
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TITLE III] ARREST, BY WHOM AND HOW MADE. 403
2. Without a warrant, when a public offense is committed in his
presence, or when he has reasonable grounds for believing that the
person arrested has committed a felony.
[8. That such peace officer with a warrant of arrest, when in
the actual pursuit of an offender, may cross a county line for the
purpose of making the arrest in the adjoining county.] {Words in
bracket.^ added by act 1890. See farther^ as to arrest by peace officer
without warranty sees. 4j6^ 383 ^ 394^ 395 ; who are peace officers^ sec, 26.)
§ 37 [3*1 Private person may arrest — ^wheo. A private person may make
an arrest, when he has reasonable grounds for believing that the per-
son arrested has committed a felony.
§ 38 [ss] Ma^strate or Jndfe may orally order arrest A magistrate or
any judge may orally order a peace officer or private person to arrest
any one committing a public offense in the magistrate's or judge's
presence, which order shall authorize the arrest. {See further as
to oral direction to arrest, sec, 383.)
§ 39 [••] Person to be informed of intention to arrest and cause of. The
person making the arrest shall inform the person about to be
arrested of the intention to arrest him, and of the offense charged
■against him for which he is to be arrested, and if acting under a
warrant of arrest, shall give information thereof, and if required,
shall show the warrant. {Sheriff may take bail, sees. 28, 83.)
§ 40 [STj Door may be broken to arrest. To make an arrest, an officer
may break open the door of a house in which the defendant may be,
arrest than a private person. Oreighton is an illegal act which the person about
V. Com., 83 Ky. 142. to be arrested is not required to submit
(7) A person who has been elected to to. Wright v. Com., 85 Ky. 123; Ham-
an office — town marshal — but who fails lin v. Com., 11 R. 348.
to qualify or attempt to qualify, is not a (2) If there be reasonable opportunity,
peace officer. 83 Ky. 142. the person attempting to make the arrest
§ 37. Private person— arrest The only must inform the party about to be ar-
oases in which a person not a peace offi- rested of his intention, of the offense
cer can make an arrest are where he has charged and, if acting under a warrant,
reasonable grounds to believe that the must say so, and, if demanded, show it.
person arrested has committed a felony. Bates v. Com., 13 R. 132.
or, under section 38, where he is ordered (3) When a person knows that he is
by a magistrate or judge to arrest a per- about to be arrested and the offense
son committing an offense in his pres- charged against him, it is not necessary
ence. Wright v. Com., 85 Ky. 123; that the person making the arrest should
Bates V. Com., 13 R. 132 ; and see notes give him the information required by
1, 2 to sec. 36. this section. Bowling v. Com., 7 R.521.
§19. (1) Maoner of arrest An arrest 9 40. Breaking door to arrest The
made in substantial compliance with the sheriff, in order to make an arrest, has
terms of this section is a legal arrest, but the right to break the outer or inner
to make, or attempt to make, an arrest doors, but he can not break the house of
in disregard or violation of this section a third person to arrest a criminal who
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404 ARREST, BY WHOM AND HOW MADE. [tITLE ni
after having demanded admittance and explained the purpose for
which admittance is desired. {See further j as to powers of officer^ Ky.
Stat., sec. 4S83.)
§ 41 [tt] Officer may sonmoo aid — penalty. An officer making an arrest
may orally summon as many persons as he deems necessary to aid in
making the arrest, and all persons failing, without reasonable excuse,
to obey the summons, shall be guilty of a misdemeanor, and be pun-
ished by fine and imprisonment, or either. {Penalty for refusing to aid
officer, Ky. Stat., sec. 13JtO.)
§ 42 [19] Arrest — liow made. An arrest is made by placing the person
of the defendant in restraint, or by his submitting to the custody of
the person making the arrest.
§ 43 [40] Uimecessary force aot to be used. No unnecessary force or vio-
lence shall be used in making the arrest.
§ 44 [4i: Prisoner escaping may l>e pursued and recaptured. K the defend-
ant, after an arrest, escape or be rescued, the person in whose custody
he was may immediately pursue and recapture him in any part of the
Commonwealth.
§ 45 [««] Officer arresting under warrant — liow to proceed. The officer
making the arrest in obedience to a warrant shall proceed with the
defendant as directed by the warrant. {Sheriff may take bail, sees.
28, 83.)
§ 46 [«8] i>roceedinf8 if arrest made witlioat warrant — haiL If an arrest be
does not dwell in that house unless the extent as to place the ofBcer in danger
person to be arrested be actually in the of loss of life or great bodily harm,
house at the time of the entrance. Dilger v. Com., 88 Ky. 550.
Hawkins v. Com., 14 B. M. 395; Ky. (2) The above rule applies when an
Stat., sec. 4583 officer is attempting to arrest a felon who
§ 41. Persons not suninoned have no has escaped, but in misdemeanor cases
right to aid an officer in making an ar- when the offender is not resisting, but
rest. Hamlin v. Com., 11 R. 348 ; as to fleeing, the officer has no right to kill or
right of person to resist arrest by an offl- shoot and wound. Head v. Martin, 85
cer accompanied by a posse when he be- Ky. 480 ; Doolin v. Com., 15 R. 408.
lieves that the attempt to arrest is a (3) The provision that **no unneces-
mere pretext to do him harm, see Min- sary force or violence shall be used"
niard v. Com., 87 Ky. 213; Bowling v. necessarily means that no more force
Com., 7 R. 821 ; and no person but an shall be used than '^reasonably appears"
officer making an arrest can summon per- to the person making the arrest to be
sons to aid in it. Salisbury v. Com., 79 necessary. Bowling v. Com., 7 R. 821;
Ky. 425. Hamlin V. Com., 11 R. 34a
I 4a. (1) Force efflcer may use. Where §46. Mailstrale lias n« aathority tn lake
an officer is attempting to make an ar- a bail bond from a prisoner brought be-
rest for felony he may use such force as fore him for examination of a charge
is necessary to capture the felon, even to of felony committed in another county,
killing him when in flight; but where it is nor has he any right to take temporary
a misdemeanor the officer can not kill the bail for the appearance of the accused
offender unless he is resisting to such an before him. Com. v. Salyer, 8 Bush 461.
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TITLE m] ARRBST, BY WHOM AND HOW MADB. 406
made without a warrant, whether by a peace officer or private person,
the defendant shall be forthwith carried before the most convenient
magistrate of the county in which the arrest is made, and the grounds
on which the arrest was made shall be stated to the magistrate ; and
if the offense for which the arrest was made be charged to have been
committed in a different county from that in which the arrest was
made, and the magistrate believe, from the statements made to him
on oath, that there are sufficient grounds for an examination, he shall,
by his written order, commit the defendant to a peace officer, to be
conveyed by him before a magistrate of the county in which the
offense is charged to have been committed; or, if the offense be a
misdemeanor, the defendant may give bail before the magistrate for
his appearance before the judge of the county court of the county in
which the offense was committed, on a day to be named in the bail
bond, or for his appearance before the court having jurisdiction to
try the offense, on a day to be fixed by the magistrate. {Form of
bond, page 666.)
§ 47 [44] Bond taken onder last section sent by mail. The magistrate tak-
ing bail, as provided in the last section, shall transmit by mail the
bail bond to the officer before whom, or to the clerk of the court in
which, the defendant is bound to appear.
§ 48 [45] Examination of charge by magistrate. If the arrest be made in
the county in which the offense is charged to have been committed,
the magistrate before whom the defendant is carried shall forthwith
proceed to an examination of the charge, as provided in title four, or
to a trial, as provided in titles seven and eight. {See act at end of
$ec. 71)
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406 PROCEEDINGS IN THE EXAMININQ COURT. [TITLE IV
TITLE IV.
PROCEEDINGS IN THE EXAMINING COURT.
§ 49. Magistrate to examine charge— judgment.
§ 50. Examination into charge forthwith.
§ 51. Duty of magistrate — notice to county attorney.
§ 52. Defendant may object to the magistrate.
§ 53. Proceedings when objection to magistrate made.
§ 54. Adjournment of examination not exceeding two days.
§ 55. Disposition of defendant during adjournment.
§ 56. Directions concerning money deposited as bail.
§ 57. Peace officer liable for money deposited.
§ 58. Forfeiture of bail during examination — proceedings.
§ 59. Extension of time for defendant's appearance.
§ 60. Amount to be deposited in lieu of bail.
§ 61. Witnesses— attendance how secured.
§ 62. Witnesses may be separated.
§ 63. 8|;>ectators may be excluded.
§ 64. Substance of testimony to be reduced to writing.
§ 65. Defendant to be discharged if charge not proven.
g 66. Defendant guilt}' of any offense to be held over.
§ 67. Order of commitment to state amount of bail.
§ 68. Who may take bail after commitment.
§ 69. Magistrate to recognize witnesses to appear.
§ 70. Magistrate to return papers to clerk of trial court.
§ 71. Examining trial— who may hold — practice.
§ 49 [4ei Magistrate to examine charge — iodgment A magistrate of the
county in which a public offense has been committed is authorized
to examine the charge, and commit to jail or hold to bail the person
charged with its commission, except as provided in section seventy-
one. (See act at end of sec, 71, Bail may be sworn ; qualifications o/*,
sees, 76, 77,)
§ 50 :4T] Examinatioa into charge forthwith. When a person who has
been arrested shall be brought, or, in pursuance of a bail bond, shall
§ 49. (1) Magistrates— power of. Judges aminin<? court. Roberta v. Com., 7
of county or police or city courts, Bush 430.
mayors, chairman of the trustees of (3) Saaday — bail A bail bond or recog-
towns and justices of the peace are nizance executed on Sunday before an
magistrates (sec. 20), and any one of officer authorized to take the same is
them may commit or hold to bail except legal and binding on the defendant and
as provided in sec. 71; see amendment his sureties. Rice v. Com., 3 Bush 14;
to that section. Com. v. Cummings, 18 Watts v. Com., 5 Bush 309.
B. M. 20 ; Rice v. Com., 3 Bush 14. (4) Saaday— examioios trial maybe held
(2) Recogaizaace. Bail may be taken on and defendant admitted to bail,
by recognizance entered into before ex- Watts v. Com., 5 Bush 309.
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TITLE IV] PROCEEDINGS IN THE EXAMINING COURT. 407
come, before a magistrate of the county in which the offense is
charged to have been committed, the charge shall be forthwith
examined as directed in this title.
§ 51 [4T] Doty of mafistrate — notice to county attorney. The magistrate,
before commencing the examination, shall state the charge, and
inquire of the defendant whether he desires the aid of counsel, and
shall allow a reasonable opportunity for procuring it. He shall also,
if the offense charged be a felony, give to the county attorney, if
not present, reasonable notice in writing, of not more than one day,
to attend and prosecute such charge. The notice may be served by
any sheriff, constable or marshal, and it shall be the duty of such
officer to serve the same when placed in his hands. (Fdony defined^
sec, 6. County attorney to be notified in all cases, Ky. Stat., sec. 128.)
§ 52. Defendant may object to the magistrate. If a defendant shall
make and present his affidavit that he does not believe that he uan
secure a fair trial and examination, before the judge, officer or
justices constituting the court, he or they shall retire from the case,
and another or other magistrates shall take his or their places ; but
where only one of the two justices is objected to, he only shall retire
from the case, and another justice shall take his place. When a
judge or justice has retired from the ease, by reason of the filing of
the affidavit as provided above, and his place has been supplied by
another judge or justice, no affidavit can be filed nor objection
made, by the party first objecting, to parties then constituting the
court.
§ 53. Proceedings when objection to mafistrate is made. When the affida-
vit provided for in section fifty-two is filed, and there is but one
magistrate ; or if there be two and the objection apply to both ; if
the defendant be in custody, the peace officer, having him in custody,
shall take him before some other magistrate to be examined. If the
defendant be on bail, the examination shall be continued, and the
peace officer in attendance shall notify another magistrate to attend
and preside in the case. If the examination be before two justices of
the peace, and the objection apply to but one of them, the other shall
associate another justice with himself and pr6ceed as directed in
section seventy-one.
§ 54 [4tj Adjournment of examination not exceeding two days. For the pur-
pose of procuring the attendance of witnesses, or for other sufficient
reasons, the magistrate may adjourn the examination from time to
time, not, however, exceeding two days at a time. {See further as to
extension of time, sec. 59.)
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408 PBOOBBDINGS IN THE BXAMINING OOUBT. [TITLE IV
§ SS CM] Disposition of defendant dari«( adjonrnnent. During the periods
of adjournment the defendant may give bail when the offense with
which he is charged is a bailable one. The court may, in bailable
cases, fix a sum equivalent to bail, and if the defendant, or any one
for him, deposit money to the amount named with the magistrate in
attendance, unless he be a policeman, as security for the defendant's
appearance at the time or times appointed, he shall be released from
custody during the periods of the adjournment of the examination;
but if the defendant fail to give bail, or to deposit money as indicated
herein, or if the offense is not a bailable one, he shall, during such
adjournment, be confined in the county jail : Provided^ That said de-
fendant may be committed to the custody of an officer if he will pay
the expense of being guarded. (Sec. as amended by act 1882. Form
of bail bond, page 657; form of order of commitment, page 661.)
^56 [»•] Directions conceminf money deposited as Imll. The magistrate
shall make an entry, on the minutes of the examination, of the
deposit and by whom made ; and, if the defendant appear at the times
appointed for his appearance, or at such other times to which the
magistrate may extend the time for his appearance, or die during an
adjournment, the money shall be returned by the peace officer to the
person depositing it, or his representatives ; but if the defendant fail
to appear, the peace officer shall, within ten days after such failure,
pay over the money to the trustee of the jury fund of the county.
{Form of entry concerning money deposited, page658. If defendant sur-
rendered, or grand jury fail to indict, money to be returned, sees. 88, 115.)
§ 57 [01] Peace officer responsible for money deposited. The peace officer
shall be responsible on his official bond for the money deposited as
provided in the last two sections.
§ 58 [es] Forfeiture of ball dorinf examination — proceedings. If the defend-
§55. (1) Bail during adjounnneot It (3) Deposit of money in lieu of bail,
was held in Com. v. Moore, 3 Met. 477, See further, sec. 89 and notes,
that a bail bond taken during the prog- § 58. (1) ReqnisiteB of bond taken by
ress of the examining trial, where the nafittrate. It is necessary to the validity
defendant was charged with a felony, of a bond that some judgment should
was unauthorized and vpid. But see be entered or memoranda made in writ-
now section as amended permitting bail. ing, signed by the justice showing that
(2) Bali— who may take. The charter of an examining court was held and that
the city of Lexington provides that *' as the accused was admitted to bail. Mor-
to committing criminal offenders and gan v. Com., 12 Bush 84.
sending them on for trial, said court (2) Return of papers to circuit court is
(city court) shall have the powers of two necessary before the bond is forfeited ;
justices of the peace," but a bail bond it is too late to file them after forfeiture
taken by the clerk of said court was of bond. 12 Bush 84.
held void. Dugan v. Com., 6 Bush 305.
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TITLB IV] PROCBBDINGS IN THE EXAMINING COURT. 409
ant give bail for his appearance daring the examination, according to
section fifty-five, and fail to appear at the time specified, or at the
time extended, according to section fifty-nine, the magistrate shall
indorse on the bail bond the word " forfeited," with his signature
thereto, and return the bond to the clerk of the circuit court of the
county, who shall proceed thereon as directed in section ninety-four,
and such indorsement shall be sufficient evidence of the forfeiture of
the bond.
§ 59 [Btj Extension of time for 4efendaiit*8 appearance. When a deposit of
money has been made, or bail given, the magistrate may, for suffi-
cient cause, extend the time for the appearance of the defendant, not
exceeding, however, ten days.
§ M [5tj Amount to be deposited in lien of liail. The sum of money to be
deposited, as provided in the preceding sections, shall not be less
than the full amount in which bail would be required, upon the
defendant's being held for trial of the charge.
§ 61 [M] Witnesses* attendance, liow secured. The magistrate shall, when
requested to do so, issue subpoenas for witnesses, which shall be exe-
cuted by a peace officer, and shall coerce their attendance by the
same process as in the circuit courts. {Form of subpoena^ page 654-;
attachment^ page 656. See also, as to attendance of witnesses, sec. 161.)
§ iil [65] Witnesses may l>e separated. During the examination the
magistrate may cause the witnesses to be kept out of hearing of the
witness testifying, and also separate from each other ; and he shall do
so upon the request of the prosecuting attorney, or of the defendant.
§ 63 [M] Spectators may he excluded. Upon the request of the defend-
ant, all persons may be excluded from the room in which the
examination is made, except the magistrate, his clerk, the peace
officer, the prosecutor, the attorney or attorneys representing the
Commonwealth, the prisoner, his counsel and the witness under
examination. {Exclusion of infants during certain trials, Ky. Stat,,
sec. 979.)
§ 64 [5T] Sulmtance of testimony to l>e reduced to writing. The magistrate
in the minutes of the examination shall state the name and place of
residence of each witness examined, and the substance of his testi-
mony. But such statement shall not of itself be evidence for any
purpose. {Form for minutes of examining trial, page 660.)
§ 65 [fts] Defendant to l>e discharged if cham^e not proven. When the
examination is closed, if the magistrate be of opinion that there is
not sufficient cause for believing that the defendant has committed a
public offense, he shall discharge the defendant from custody, and
make an entry thereof on the minutes.
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410 PROCEEDINGS IN THE EXAMINING COURT. [tITLE IV
§ 66 [»t] Defendant i:aUty of any offense to be held over. If, however, the
magistrate be of opinion, from the examination, that there are reason-
able grounds to believe the defendant guilty of the offense charged,
he shall be held for trial, and committed to jail, or discharged on
bail, if the offense be bailable : Provided^ however ^ That if, upon the
trial, it shall appear that the defendant is guilty of a public offense,
other than that charged in the warrant, he shall be held in custody
of the officer and tried for such offense, q. reasonable opportunity
having been given him to obtain his witnesses and prepare his
defense.
§ 67 [«•] Order of commltnient to state amoont of ball. If the defendant be
committed to jail, the magistrate shall make out a written order of
commitment, signed by him, which shall be delivered to the jailer by
the peace officer who executes the order of commitment. If the
offense be bailable, the magistrate must fix the sum for which bail is
to be given, and if sufficient bail be offered, take the same and dis-
charge the defendant. If, however, sufficient bail be not offered, the
sum in which bail is required must be stated in the order of commit-
ment. {Form of order of commitynent, page 661.)
§ 68 [ei] Who may take bail after commitment. The defendant, after
commitment, and before the commencement of the next term of the
court having jurisdiction to try the offense, may be admitted to bail,
in the sum fixed by the committing magistrate, by such committing
magistrate or by the judge of the county court ; but, after the com-
mencement of the term of the court, can only be admitted to bail by
the court or the judge thereof. After the term, if the amount of the
bail have been fixed, the bail may be taken by the clerk of the court
in which the defendant is held to appear. (Form of bond^ page 657;
bail may be sworn, qualifications of, sees. 76, 77 ; application for, how
made, sec. 81.)
§ 69 [es, e4] Witnesses recognized to appear. On holding the defendant to
answer the charge, the magistrate shall cause each of the material
§ 67. Requisites of bond takea by magls- (2) The clerk has no authority to take
trate. See notes to sec. 58. bail when the amount has not been fixed
§ 6& (1) Bail after commitmeat After by the court. Wallenweber v. Com., 3
the commencement of the term of the Bush 68.
circuit court, the committing magistrate (3) The defendant, having been in-
or county judge has no authority to ad- dieted for murder and confined in jail
mit the defendant to bail ; if the bail is without any order as to ball being made,
fixed the clerk of the court may take it. sued out a writ of habeas corpus, and was
A bail bond executed before an officer admitted to bail bj' the two justices who
not authorized by law to take it is not heard the application (sec. 423); failing
obligatory on the bail. Branham v. to appear the sureties in the bond -were
Com., 2 Bush 3. held liable. Creekmore v. Com., 5 Bush
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TITLE IV] PROCEEDINGS IN THE EXAMINING COURT. 411
witnesses on behalf of the Commonwealth, and, at the defendant's
request, each of such of the witnesses for him as he may suggest, to
enter into a recognizance before him, to the effect that he will attend
and testify in the court to which the defendant is sent for trial, or
forfeit a sum, not less than one hundred dollars, to the Common-
wealth of Kentucky. K witnesses for the defendant be recognized, it
shall be stated in the recognizance that they are such. {Form of
recognizaneCy page 656.)
§ 70 [et] Ma^strate to retam papers to clerk of trial court. The magistrate
shall within ten days, and before the commencement of the next
term of the court to which the defendant is sent for trial, deliver to
the clerk of such court the warrant, if any, the minutes of the exam-
ination including the statements of the witnesses, the instruments of
writing and other things used in evidence, the decision and action of
the magistrate, the bail bond, if any, and the recognizances of the
witnesses.
§ 71 [e4] Examining trial wlio may hold — practice. If the magistrate^
before whom the defendant is brought for an examination of the
charge against him, be a justice of the peace, and the offense charged
be a felony, he shall proceed with such defendant to another justice
of the county, who shall be associated with him, and the two com-
pose the examining court and perform the duties and exercise the
powers as provided in this title, subject to the following rules : {See
act 1886y next page,)
1. If they do not concur in the opinion that there are reasonable
grounds for believing the defendant to be guilty of a public offense^
he shall be discharged.
2. If they concur in the opinion that there are reasonable
grounds for believing him to be guilty of a public offense, but
differ as to the offense of which he is guilty, he shall be held
for trial for the offense for which the least punishment is pre-
scribed.
313 ; and see Bethuram v. Black, 11 party to give bail shall be filed in circuit
Bush 628. court before there is a forfeiture. Mor-
(4) A jailer has no authority to take gan v. Com., 12 Bush 84.
bail, and a bail bond taken by him is not § 71. Ball boad taken by siogle Justice
binding on the sureties either as a statu- from a defendant charged with felony
tory or common law bond. Com. v. Rob- was held invalid in Com. v. Fisher, 2
erts, 1 Duv. 199. Duv. 376 ; Murphy v. Com., 11 Bush 217;
§ 70. Failure to comply with many of Revill v. Pettit, 3 Met. 315 ; Tharp v.
\he provisions of this section are mere Com., 3 Met, 412; but now one justice
irregularities, but it is indispensable can hold an examining court. See act
that the decision of the court requiring next page. ]
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412 PROCBEDINQS IN THB BXAMDnNa OOURT. [TITLE IV
8. If they differ as to the Bum in which the defendant should be
held to bail, he shall be held in the smaller sum.
4. K they differ in the decision of any other question, the decis-
ion most favorable to the defendant shall prevail.
5. The justice before whom the defendant is first brought shall
deliver the papers to the clerk, as prescribed in section seventy,
and the other justice shall write down the evidence, unless they
otherwise agree. {Felony definedy sec. 6.)
[Act 1886.]
§ 1. County iudge exclusive jurisdiction la homicide. That the judges of
the county courts, in their respective counties, shall have as an
examining court exclusive jurisdiction in all cases of homicide.
§ 2. Trial held at county seat The examining trial for the offense in
the first section of this act mentioned shall be held at the county
seat of the county in which the oflense is alleged to have been
committed.
§ 3. Who may preside if county iudj^e can not When any person is
arrested, charged with homicide, he shall be carried before the county
judge, if in the county, for an examining trial. If the county judge
is absent from the county, or can not properly preside in the case,
the party arrested shall, by the oflicer or person having him in
charge, be carried to the justice of the peace living nearest to the
county seat for an examining trial, or to the police judge of the
town which is the county seat for an examining trial. If the jus-
tice of the peace is absent from his district or police judge is absent
from the town, or either of them can not properly preside, then
any other justice of the peace may act as an examining court in the
trial of the person arrested.
§ 4. One jastice may act. One justice of the peace shall have all the
rights, powers and jurisdiction now conferred by law on two just-
ices of the peace as an examining court, provided said justice shall
have no jurisdiction to act as an examining court in case of homi-
cide, unless the party charged with said offense is brought before
him pursuant to section three of this act.
§ 5. County iud^e may act in any case. This act shall not be construed
' as limiting the jurisdiction of the county judges as an examining
court to the offense of homicide.
§ 6. County Judge receives no fee. The county judge shall not receive
any fee for services rendered as an examining court.
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TITLB IV] PBOCBEDINGS IN THE EXAMINIKG COURT. 418
§ 7. Pee for Mdiof court A justice of the peace, police judge or
other officer (except the county judge), acting as an examining court,
shall receive for the first day as fee for his services two dollars ;
for each day thereafter one dollar: Provided^ That in no case shall
the fees exceed four dollars. The fees to be allowed, certified and paid
as such fees are now paid: Provided^ That nothing in this act shall
deprive any police judge, city judge or mayor of a city in this Com-
monwealth of any jurisdiction they now have in regard to holding
examining courts. And it is further provided — ^the provision of this
section as to fees shall not apply to the judge of the city court of
Louisville, and the judge of said city court of Louisville shall not
receive any fees whatever for services rendered as an examining
court, but shall be paid the same salary as now provided by law. {See
jurisdiction of police courts ^ page 661; fee for holding courts Ky. Stat.,
sec. 35S.)
§8, Validity of ball bood. Abondfortheappearanceof the defendant
at any court shall be valid when taken by any officer having the
power and right to sit as an examining court or who does in the
case sit as an examining court.
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414 ADMISSION TO BAIL. [tITLE V
TITLE V.
BAIL.
Ohaftbr I. Admission to bail, 72.
II. Surrender op the dbfekdakt, 86.
III. Deposit op money in lieu op bail, 89.
IV. Porpeiture op bail, 93.
V. Rbcommitmbnt aptbr giving bail and dbpositinq money, 99.
CHAPTER I.
ADMISSION TO BAIL.
§ 72. Admission to bail defined.
§ 73. Taking of bail defined.
§ 74. , Defendant may be bailed before conviction.
§ 75. Bail not allowed after conviction.
§ 76. Qualifications of bail.
% 77. Bail to be examined on oath as to qualifications.
§ 78. Insufficient bail not to be taken.
§ 79. Bail to be taken if sufficient in the aggregate.
§ 80. Persons not to be taken as bail.
§ 81. Application for bail how made.
§ 82. Form of bail bond.
§ 83. Sheriff may take bail — responsibility for.
§ 84. Peace officers who may take bail.
§ 85. Irregular bail bond, validity of— duty of defendant.
§ 72 [eT] Admission to bail defined. Admission to bail is an order from
a competent court or magistrate, that the defendant be discharged
from actual custody on bail. ( Who are magistrates^ sec, ^6.)
§ 73 [6t] Taking of bail defined. The taking of bail consists in the
acceptance by a competent court, magistrate or officer, of the under-
taking of sufficient bail for the appearance of the defendant accord-
§72. (1) De facto officer. "Where a of de facto officer, Creighton v. Com.,
man is exercising and discharging the 83 Ky. 142.
general duties of an officer, claiming (2) Order admittlflg to bail need not be
right thereto under commission or ap- entered on the regular order book, but
pointment, he is an officer de facto, and some memoranda on paper signed by the
generally, if not universally, his acts are justice is necessary to show that a trial
good as to third parties," and where the was had and the defendant admitted to
validity of a bail bond taken by a police bail. Morgan v. Com., 12 Bush 84.
judge was questioned on the ground that (3) See further, notes to sec. 49.
he had not taken the oath of office, the §73. (1) Bond of defeadaat A bail
bond was held valid. Rice v. Com., 3 bond or recognizance by a de/iwirfannn an
Bush 14; and see further, as to definition indictment is unauthorized by law, and
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TITLE V]
ADMISSION TO BAIL.
415
ing to the terms of the undertaking, or that the bail will pay to the
Commonwealth the specified sum. {Who may take bail after commit-
ment^ sec. 68; and see references under sec. 74; who are magistrates^ sec.
S6.)
§ 74 [TO] Defeadaat nay be bailed before convictloo. Before conviction
the defendant may be admitted to bail —
1. For his appearance before a magistrate for an examination of
the charge, if the offense charged be a misdemeanor ; or,
2. Forhisappearancein the court to which he is sent for trial; or,
3. For his appearance to answer an indictment which has been
found against him ; or,
4. For his appearance in a penal action. {Defendant may remain
on bail during trials sees. 183^ 184 / bail in police or justices* courts^
sees. 309 y 324; bail to answer indictment — who may take, sees. I4I,
143y 144; or misdemeanor y sees. 28 ^ 4^ ; peace officers who may take
baily sec. 84.)
§ 75 [71] Bail aot allowed after convlctloii. After conviction, the defend-
ant can not be admitted to bail.
§ 76 [Ti] Qualifications of bail. The bail shall be residents of the Com-
monwealth, owners of visible property, over and above that exempt
is not obligatory on him either as a stat-
utory or common law bond, but is binding
on his surety. Com. v. Radford, 2 Duv. 9.
(2) Invalid bail beads. Bond taken by
county judge after commencement of
term of court to which defendant was
held to appear, sec. 68; Branham v.
Com., 2 Bush 3 ; Creekmore v. Coin., 5
Bush 312 ; bond taken by jailer, Com. v.
Roberts, 1 Duv. 199; bond taken by
sheriff from person whom he had arrest-
ed by authority of his bail, Schneider v.
€om., 3 Met. 410. In each of the fore-
going cases it is held that a bond exe-
cuted before an officer not authorized by
law to take bail is not obligatory on the
bail ; and see further, notes to sec. 85,
and as to exoneration of bail, see notes
to sec. 93.
(3) Pereofl flot to be accepted as bail See
sec. 80; but if such persons become bail
they are liable. 11 Bush 617.
§74 (1) Bond taken by examiains court
is invalid unless it appear from the
record that an examining trial was held
and the accused admitted to bail. Mor-
gan V. Com., 12 Bush 84.
. (2) Doty of ball It is the legal duty of
the bail to act as the friendly custodian
of his principal, and to see that he ap-
pears to answer the charge against him.
Ratcliflf V. Smith, 13 Bush 172.
(3) See further, sees. 46, 55 as to bail by
examining court ; and sec. 68 as to bail
after commitment.
(4) Sunday— bail. A bail bond or recog-
nizance executed on Sunday before an
officer authorized to take bail is binding.
Rice V. Com., 3 Bush 14 ; Watts v. Com.,
5 Bush 309.
(5) Surety— authority to fill bond. Where
a suretj' authorizes an officer to fill up a
bail bond that he has signed, the officer
has no power to delegate the authority to
fill up the bond to another person. Com.
V. Ball, 6 Bush 291 ; nor is surety who
authorizes another verbally to sign his
name bound, although the person so au-
thorized signed name in presence of
surety. Billington v. Com., 79 Ky. 400.
§ 76. Qualifications of bail Although
this section requires the surety in a bail
bond to be a resident of this State, yet
if a non-resident be received as bail he
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416 ADMISSION TO BAIL. [tITLE V
from execution, to the value of the sum in which bail is required, and
shall be worth that amount after the payment of their debts and
liabilities.
§ 77 [78] Bail to be examined on oath as to qualifications. The person or
persons offered as bail shall be examined on oath in regard to their
qualifications as bail, and any olficer authorized to take bail is
authorized to administer the oath, reduce the statements on oath to
writing, and require the person offered as bail to sign the statement.
Other proof may be also taken in regard to the sufficiency of the
bail. {Form of affidavit of bail^ page 668)
§ 78 [T4] Insufficient ball not to be taken. No person shall be taken as
bail, unless the court, magistrate or officer be satisfied, from proof
aiid examination on oath, of the sufficiency of such person, according
to the requisitions of the preceding sections.
§ 79 ITS] Bail to be taken if sufficient in the afgr^ate. If more than one
person be oftered as bail, they shall be deemed sufficient, if in the
aggregate they possess the qualifications required.
§ 80. Persons who shall not be taken as bail. No officer shall take as bail
any attorney at law, sheriff or deputy sheriff, judge, clerk or deputy
clerk or master commissioner of the court in which the defendant is
held to appear.
§ 81 [Te] Application for bail, how made. K the defendant be committed
to jail, and the application for bail be made to a magistrate or judge
of the circuit court during vacation, it must be by a written petition,
signed by the defendant or his counsel, briefly stating the offense for
which he is committed, and naming the persons offered as bail. In
all other cases, the application may be made orally to the court, mag-
istrate or officer. ( Who may take bail after commitment^ sec, 68.)
§ 82 [77] Form of bail bond. The undertaking of the bail shall be sub-
stantially as follows :
"A B, being in custody, charged with the offense of (naming or
briefly describing it), and being admitted to bail in the sum of
will be bound. Com. v. Ramsay, 2 Duv. words *' said charge and " and the words
885. **if he fails to perform either of these
§ 80. Sureties aot qmllfied ~ Hable if conditions that we will pay to the Corn-
taken. If any of the persons mentioned monwealth of Kentucky the sum of
in this section becomes surety in a bail dollars" were left out, and the word
bond he will be bound. Hollandsworth ** obedient " used in place of ** amenable/*
V. Com., 11 Bush 617. A contract be- but these omissions and alterations did
tween sureties in a bail bond that all not render the bond invalid. Miller v.
were to be bound or none would be is not Com., 1 Duv. 14.
binding on the Commonwealth, lb. (2) A bond that omitted the oon-
§82. (1) PornantfymlMttyof fcoi4. The eluding provision that if defendant
words ** shall at all times" after the "failed to perform either of these ccm-
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TITLE V] ADMISSION TO BAIL. 417
dollars, we, C D of (stating his place of residence), and E F (stating
his place of residence), hereby undertake that the above-named A B,
shall appear in the — ■■ — court day of its term (or before
the judge of the — — county court, on the day of ), to
answer said charge, and shall at all times render himself amen-
able to the orders and process of said court in the prosecution
of said charge ; and, if convicted, shall render himself in execution
thereof; or, if he fail to perform either of these conditions, that
we will pay to the Commonwealth of Kentucky the sum of
dollars." (Irregular bond is valid^ sec, 85.)
§ 83 [Tt] Sheriff may take bail — responsibility for. A sheriff or deputy
sheriff arresting a person under a warrant or other process, in which
it appears that the person is to be admitted to bail in a specified sum,
may take the bail and discharge the person from actual custody.
The sherift* shall be officially responsible for the sufficiency of bail
taken by himself, or his deputy, as in taking bail in civil actions.
(Form of bondy page 657; bail may be stoorn, qualifications o/, sees. 76^
77 \ see further^ as to officers who may take bail^sec. 28)
§ 84 [T»] Peace officers who may take bail. Only the following peace
officers shall take bail :
1. A sheriff or his deputy as authorized by law. {See sec. 28.)
2. The coroner of any county, in which the office of sheriff is
vacant, may take bail, whenever the sherift* could have done so ;
and he shall be officially responsible for the sufficiency of bail
taken by him, in the same manner as sheriffs are. {Duty of other
officers arresting persons entitled to bail, sec. 144")
ditioQS that we will pay to the CummoQ- the bond that the bail undertook that
wealth of Kentucky the sum of dol- the defendant should appear before a
lars/' but valid in all other respects, is magistrate for the examination of a
binding on the sureties. Ck)m. v. O'Dan- charge, or before the court for trial
iel, 9 Bush 551. thereon, it will be invalid. Henry v.
(3) Bond is not Invalid because of Com., 4 Bush 427.
omission of the name of the circuit ^'7) See further, notes to sec. 85.
court to which defendant was required | 83. Sheriff may take bail— wken. The
to answer. Com. v. Stegala, 3 R. 686. sheriff arresting a person by authority
(4) A bond or recognizance that does of his bail is not authorized to take new
not show that the bail undertook that bail; he can only take - bail when he has
the accused should appear before a mag- made the arrest under a warrant, or
istrate or court, but is merely condi- other process in which it shall appear
Honed cls the law direcUy is invalid. Rob- that the person is to be admitted to bail
erts V. Com., 7 Bush 430. in a specified sum. Schneider v. Com.,
(5) In Baird v. Com., 2 Duv. 78, it was 3 Met. 410.
held that a single recognizance on two § 84. Jailer cai flot iakt iMiiL A jailer
indictments was valid. has no authority to take bail, and a bail
(6) Unless it can be ascertained from bond taken by him is not binding on the
(27)
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418
ADMISSION TO BAIL.
[title V
§ ft5 [to] Irrefnlar bail bond, validity of — doty of defeodaat Xo bail bond
or bail recognizance shall be deemed to be invalid by reason of any
variance between its stipulations and the provisions of this Code, nor
by the failure of the magistrate or officer to transmit or deliver the
same at the times herein provided, nor by any other irregularity,
provided it be made to appear that the defendant was legally in cus-
tody, charged with a public offense, and that he was discharged by
reason of the giving of the bond or recognizance, and provided it can
be ascertained from the bond or recognizance that the bail undertook
that the defendant should appear before a magistrate for the exami-
nation of the charge, or before a court for the trial thereof. If no
day be fixed for such appearance, or an impossible day, or a day in
vacation, the bond or recognizance, if for his appearance before a
magistrate, shall be considered as binding the defendant so to appear
and surrender himself into custody, for an examination of the charge,
within twenty days from the time the bond or recognizance was
given; and if for his appearance in a court for trial, shall be con-
sidered as binding the defendant so to appear and surrender himself
into custody, on the first day of the next term of the court, which
shall commence more than ten days after the time when the bond or
recognizance is given.
sureties, either as a statutory or common
law obligation. Com. v. Roberts, 1
Duv. 199 ; and see note 2, sec. 73.
I 85. (1) Joint recofnlzaoce. The de-
fendant being indicted for burglary and
larceny in separate indictments, but for
the same offense, he and his surety en-
tered into a joint recognizance for his
appearance to answer both indictments.
The bond was valid, as there could be
but one conviction and one punishment,
the two indictments being in effect no
more than two counts in the same in-
dictment. Baird v. Com., 2 Duv. 78.
(2) Requisites of bond. It is essential to
the validity of a recognizance or bail
bond that it appear that the defendant
was, when recognized or bailed, legally
in custody, charged with a public
offense, and was discharged therefrom
by reason of the giving of the bond or
recognizance and that it can be ascer-
tained from the bond or recognizance
that the bail undertook that the defend-
ant should appear before a magistrate
for an examination of the charge or be-
fore a court for the trial thereof. Henry
V. Com., 4 Bush 427; Com. v. Cum-
mings, 18 B. M. 26.
(3) The omission of the concluding
undertaking, that if the defendant
failed to perform either of the condi-
tions of the bond the sureties would pay
to the Commonwealth the amount of
the bail, did not render the bond invalid.
Com. V. O'Daniel, 9 Bush 551 ; and see
Miller v. Com., 1 Duv. 14.
(4) It is indispensable to the validity of
the bond that some judgment should be
entered or memoranda made in writing,
signed by the magistrate, showing that
an examining court was held, and that
the accused was admitted to bail. Mor-
gan v. Com., 12 Bush 84.
(5) See further, as to exoneration of
bail, notes to sec. 93.
(6) Void bond. A surety whose name is
signed to a bond by another person (al-
though in his presence) without written
authority so to do is not bound. Billing-
ton v. Com., 79 Ky. 400.
(7) The defendant being required to
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TITLE V]
SURRENDER OF THE DEFENDANT.
419
CHAPTER n.
SURRENDER OF THE DEFENDANT.
§ 86. Surrender of defendant discharges bail.
§ 87. Bail may arrest or have defendant arrested.
§ 88. Money deposited returned on surrender of defendant.
§ 86 [ii] Surreoder of defeodaot discbarses bail. At any time before the
forfeiture of their bond, the bail may surrender the defendant, or the
defendant may surrender himself, to the jailer of the county in which
the prosecution is pending, but the surrender must be accompanied
with a certified copy of the bail bond to be delivered to the jailer,
who must detain the defendant in custody thereon as upon a commit-
ment, and give a written acknowledgment of the surrender; and the
bail shall thereupon be exonerated. {Form of acknowledgment of sur-
render^ page 669)
give bond in the i)enalty of two hundred
and fifty dollars in each of four separate
and distinct prosecutions, executed a
bond with surety for one thousand dol-
lars, conditioned in the usual form. The
sureties were held not bound, as the bond
was for too great a penalty, they being
liable under it for one thousand dollars
in each case. Cooper v. Com., 13 Bush
654.
(8) Unless the bond is taken by an offi-
cer authorized by law to accept bail, the
bond will be void. Covington v. Com., 3
Bush 478. Where a surety signed a blank
bond with authority to the magistrate to
fill it up, the magistrate had no power to
authorize another person to fill up the
bond ; and the bond having been filled up
by another person was not binding. Com.
V. Ball, 6 Bush 291.
(9) Where the minutes of the examin-
ing court recited only ** that the defend-
ant and A and B, his sureties, were duly
recognized in the sum of two hundred
dollars, conditioned as the law directs,"
the sureties were not bound; the condi-
tions should have been set out in the re-
cognizance, or in the minutes of the ex-
amining court. Roberts v. Com., 7 Bush
430.
§86. (1) Samflderofdefefldaflt Before
the forfeiture of their bond the bail have
a right to surrender the defendant to the
jailer, whose duty it will be to detain him
in custody **as upon a commitment," he
may then be admitted to bail in the mode
prescribed by sees. 68 and 81. Schneider
V. Com., 3 Met. 410.
(2) "A delivery to the jailer so as to
exonerate the bail must be such as to
gl\Q the jailer dominion over the ac-
cused, and this can ordinarily be done
only by putting the accused in the apart-
ment of the jail where prisoners are
usually confined. McKinney v. Com., 3
R. 465.
(3) Sureties in a recognizance are en-
titled to a jury to try whether there
was a delivery by them of the defend-
ant to the jailer. 3 R. 465.
(4) After the trial begins in a felony
case the defendant is in the custody of
the court, and the bail are not amen-
able for his presence unless they consent
that he may remain on bail, but in or-
der to be exonerated before the trial be-
gins the bail must either surrender the
defendant to the jailer or to the custody
of the court if in session. Willis v.
Com., 85 Ky. 68.
(5) The surety in a bail bond can not
exonerate himself by delivering the ac-
cused to the jailer of a county other
than that in which prosecution is pend-
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420 ^ DEPOSIT OF MONEY IN LIEU OF BAIL. [tITLB V
§ 87 [tsj Bail may arrest or have defendant arrested. For the pnrpoBe of
surrendering the defendant the bail, at any time before judgment
against them, and at any place within the State, may arrest him ; or,
by an indorsement upon a certified copy of the bail bond or recogni-
zance, signed by them, may direct the arrest to be made by any peace
officer in the State, or by any other person over twenty-one years of
age designated in the indorsement. (Form of indorsement by bail^jpiige
669; see farther as to arrest after bail^ sec. 99.)
§ 88. Money deposited returned on surrender of defendant If money have
been deposited in lieu of bail, the defendant, at any time before the
forfeiture thereof, may surrender himself to the jailer of the county
in which the prosecution is pending, and procure from him a certifi-
cate of such surrender, and upon the production of such certificate,
together with proof that the attorney for the Commonwealth has
been served with a copy of the certificate and notice, of five days,
that the application would be made; the court in which the prosecu-
tion is pending, or the judge thereof, must order the money to be
returned to the person who deposited it. {Form of certificatey page
659; notice^ page 659)
CHAPTER in.
DEPOSIT OF MONEY IN LIEU OF BAIL.
§ 89. Defendant may deposit amount of bail and be discharged.
§ 90. Bail exonerated if amount of bond deposited.
§ 91. Money to be held by trustee of jury fund subject to order of court.
§ 92. Court may apply money deposited to pay fine and costs.
§ 89 [•«] Defeodant may deposit bail aod be discharsed. Whenever the
defendant is admitted to bail in a specified sum, he may deposit said
sum with the trustee of the jury fund of the county in which the
trial is directed to be had, and take from the trustee a certificate of
such deposit, upon delivering which to the oflicer in whose custody
he is he shall be discharged. {Form of certificate^ page 659.)
mgy but when he does so and the prls- (2) Sheriff arrestiof a person by author-
oner is released on a writ of habeas eor- !ty of his bail Is not authorized to take
pus the surety will be exonerated. Smith new bail. Schneider v. CJom., 3 Met. 410.
V. Com., 91 Ky. 588. § 89. Deposit io lien of bail. Money
§ 87. (1) Arrest by bail. Bail can not deposited with the committing officer in
authorize the arrest of the accused by a lieu of bail in order to secure the release
third person in any other way than by of a prisoner, and by him paid to the
his written indorsement on a certified trustee of the jury fund, will be forfeited
copy of the bail bond or recognizance. by the failure of the defendant to ap-
Marking v. Needy, 8 Bush 23. pear. Dean v. Oom., 1 Bush 20.
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TITLB y] FORFBITURS OF BAIL. 421
§ 91 [Ml Bail exonerated if amowit of iMMid deposited. After bail has been
taken, a deposit may, in like manner, be made of the sum mentioned
in the bail bond, which shall exonerate the bail.
§ 91 [tej Money to l>e held by trustee of jury fund. If money be deposited,
the trustee of the jury fund shall hold and pay the same according
to the orders of the court having jurisdiction to try the offense, and
he and his sureties shall be liable for the same on his official bond.
{If grand jury fail to indict money to be returned^ sec. 115.)
§ 92 [tTj Court may apply money to pay fine and costs. Upon judgment
being rendered against a defendant for a fine or costs, the court ren-
dering judgment may order any money deposited, agreeably to the
foregoing sections, to be applied to the payment thereof.
CHAPTER IV.
FORFEITURE OF BAIL.
§ 93. Forfeiture of bail if defendant fails to appear.
§ 94. Proceedings upon forfeiture.
§ 95. Attachment against property of bail.
§ 96. Court may discharge forfeiture at same term.
§ 97. Money forfeited placed to credit of jury fund.
§ 98. Remission of bail by court before judgment.
§ 93 [it] Forfeitnre of bail if defendant fail to appear. If the defendant
fail to appear for trial or judgment, or at any other time when his
presence in court may be lawfully required, or to surrender himself
§93. (1) Exoocratioa of ML The charge of the recognizance she certainly
surety in the bail bond will be released, should not enforce the penalty for non-
if, after the execution of the bond, the appearance," as where the defendant Is
defendant is arrested by the United arrested in another county and thereby
States authorities and thereby prevented prevented from appearing. Kirby v.
from appearing. Com. v. Overby, 80 Com., 1 Bush 113.
Ky. 208; overruling Com. v. House, 13 (4) Sureties in a bail bond are dls-
Bush 680 ; and see Com. v. Webster, 1 charged by the rearrest of the accused
Bush 616. and his commitment to jail, from which
(2) That the defendant was absent in he made his escape during the pendency
the Federal army at the time he was of a second examining trial for the same
bound by a recognizance to appear in offense. Medlin v. Com., 11 Bush 605.
court to answer an indictment and was (5) It is indispensable that the de-
unable to procure a furlough to attend cision of the examining court requiring
the court is a valid defense against the the defendant to give bail should be
recognizance. Com. v. Terry, 2 Duv. filed in the circuit court before there is a
383. forfeiture of the bond. Morgan v. Com.,
(3) "If the Commonwealth by her 12 Bush 84.
own act prevented an appearance in dis- (6) See further, as to pxonoration of
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422
FORFEITURE OF BAIL.
[title V
in execution of the judgment, the court must direct the fact to he
entered on the record, and thereupon the bail bond, or the money
deposited in lieu of bail, is forfeited. {Forfeiture of bail in examining
courts sec, 5S,)
§ 94 [to,fi,f«] Proceediop upoo forfeiture. 1. Upon the forfeiture of a bail
bond the court shall order a summons to be issued against the bail,
requiring them to show cause, upon the lirst day of the next term of
the court, why judgment should not be rendered against them, on the
forfeiture, for the sum fixed in the bail bond.
2. If the court fail to make such order, the attorney for the
Commonwealth may, at any time after the close of the term, cause
such summons to be issued by the clerk of the court.
3. No pleadings shall be required on the part of the Common-
wealth, but the summons shall be served, and all subsequent
proceedings shall be the same as in an ordinary civil action. {Form
of summons^ page 66Z; proceeding if bail forfeited in examining courts
sec, 58.)
bail by surrender of accused, sec. 86 and
notes ; and by fact that bond is Invalid,
notes to sees. 73, 82, 85.
(7) The surrender of the defendant in
execution of the judgment rendered
against him releases the surety, although
he may fail to pay the fine imposed ex-
cept by laying it out in jail. Mitchell
V. Com., 12 Bush 247.
(8) Order of court abating an inclict-
ment terminated the prosecution under
that indictment ; and the indictment
having been reinstated on the docket and
the defendant arrested, the sureties on
the bond for his appearance were not
bound. Henry v. Com., 4 Bush 427. See
further, notes to sec. 85.
(9) Where a defendant who had given
bail for his appearance to answer an in-
dictment for felony appeared in dis-
charge of the recognizance and was put
upon trial, during the progress of which
he escaped, his bail was not liable. A
different rule would apply in misde-
meanors. Askins v. Com., 1 Duv. 275;
compare with Com. v. Coleman, 2 Met.
382.
(10) Liability of bail. The defendant
was held by an examining court to an-
swer at the ensuing October term of the
circuit court, no indictment was found
against him at that term ; at the next
April term an indictment was found,
and failing to appear the bond was for-
feited and the sureties held liable. It is
not necessary that there should be a trial
and conviction in a misdemeanor case
before the bond is forfeited. Walker v.
Com., 79 Ky. 293.
(11) The continuance of the case at
the instance of the defendant, and the
permission given him to stand upon his
bond without the consent of his sureties,
did not release them. The controlling
principle is that until the defendant is
surrendered, or his appearance entered
in discharge of his bond, the sureties
have the control of him and the court
has not. Miller v. Com., I Duv. 14 ; Com.
v. Coleman, 2 Met. 382.
(12) The accused, being under bail, ap-
peared in court, pleaded not guilty, but
before the jury was impaneled, on his
motion the indictment was set aside.
The court ordered the case submitted to
another grand jury and that the defend-
ant be permitted to stand upon his bond.
Another indictment being found the de-
fendant failed to appear. The sureties
were held liable. Brewer v. Com., 3
Bush 550, sec 159.
(13) The failure to forfeit the bond at
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TITLE V]
FORFEITURE OF BAIL.
423
§ 95. Attachment against property of bail. When the sheriff or other
officer shall return the summons, issued under section ninety-four,
not executed, in whole or in part, and that the defendants, or any of
them, are non-residents of this Commonwealth, or so conceal them-
selves or himself that the summons can not be executed upon them
or him, the attorney for the Commonwealth may sue out an attach-
ment against the estate of the defendants as to whom such return
shall have been made, and proceed as provided in title eight, chapter
three, of the Civil Code, except no affidavit nor bond shall be required:
or he may in any case, after forfeiture, sue out an attachment for any
of the causes enumerated in said chapter by making affidavit and
executing bond as required therein.
the appearance term operated to extend
the time during which the bail might
surrender the defendant as provided in
sec. 86. Com. v. Branch, 1 Bush 59.
(14) The defendant was held in the
sum of five hundred dollars to answer in
the circuit court ; an indictment was
found against him, and failing to appear
a bench warrant fixing the bail at two
hundred and fifty dollars was issued,
under this warrant the defendant was
arrested and made his escape from the
officer ; failing to appear at the next
term the bond was forfeited and the
sureties held bound for the payment of
five hundred dollars. CJom. v. Branch,
1 Bush 50.
(15) Where a defendant charged with
felony was admitted to ball by the ex-
amining court to appear before the next
May term of the circuit court, and no
court was held at that term, the sureties
were held bound for his appearance at
the next ensuing term. Com. v. Branch,
1 Bush 59.
(16) Bail are not discharged until they
have placed the defendant in the custody
of the court, or have surrendered him to
the jailer. A continuance from one
term to another does not release the bail.
Where a new court is created and all cases
pending in the circuit court are trans-
ferred to it, the bail are bound for the
defendant's appearance in the new court.
Ramey v. Com., 83 Ky. 534.
(17) A« defendant charged with bas-
tardy, who had given bail for his ap-
pearance, appeared and pleaded not
guilty, but was not surrendered or taken
into custody, and having escaped his
bail were not released. Wintersoll v.
Com., 1 Duv. 177.
(18) The arrest and imprisonment in
another State of one who is charged with
crime in this State, and out on bail, is
not a good defense by the surety to pro-
ceedings on the forfeited recognizance.
Wi throw V. Com., 1 Bush 17 ; Yar-
brough V. Com., 89 Ky. 151.
(19) The fact that the defendant could
not appear without danger of losing his
life by mob violence will not exonerate
the bail, unless the authorities were ap-
plied to, and were unable or unwilling to
extend to the accused the protection
necessary to enable him to appear. Wed-
dington v. Com., 79 Ky. 582.
(20) If for any cause the indictment
is defective and liable to be quashed,
that fact does not render the recogni-
zance void. Com. v. Skeggs, 3 Bush 19.
(21) Practice — pleadiof. When a de-
fendant in a criminal case has appeared
in discharge of each of several recogni-
zances, and another is executed and he
fails to appear in discharge of it, an or-
der reciting the failure of the defendant
**to appear in discharge of his recogni-
zance," and declaring the same forfeited,
refers to the recognizance last executed.
In a proceeding against bail upon a for-
feited recognizance all pleadings on the
part of the Commonwealth are dispensed
with ; the office of the summons is sim-
ply to notify the bail of the forfeiture,
and the failure to state in the summons
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424
FORFEITURE OF BAIL.
[title V
§ H [tt] Coort maj discliarfe forfehore at um» tern. If, before the final
adjournment of the court, the defendant appear and satisfactorily
excuse the failure, the court may discharge the forfeiture.
§ 97 [tt] Money forfeited placed to credit of jury faod. If money be deposited
in lieu of bail, after forfeiture and final adjournment of court, the
trustee shall enter the sura deposited to the credit of the jury fund.
§ 98 [t4j Remission of bail by court before jodgmeot. If, before judgment
is entered against the bail, the defendant be surrendered or arrested,
the court may, at its discretion, remit the whole or part of the sum
specified in thp bail bond.
the amount specified in the bond is im-
material. Tenney v. CJom., 3 Met. 415.
(22) A summons which recites the
date and amount of the recognizance,
and by reference to the recognizance suf-
ficiently identifies the oflfense, is suffi-
cient. Baird v. Com., 2 Duv. 78.
(23) The appearance of the parties to
a motion and their agreement to set the
hearing of it for a specified day, and a
trial and judgment upon the merits, is a
waiver of previous irregularities. Com.
V. Marks, 2 Duv. 387.
(24) In proceeding upon a forfeited
bond the defendant must make a written
statement of the facts constituting his
defense. Brown v. Com., 4 Met. 222.
(25) The omission, in the order of for-
feiture, to name the sureties or to give
the date of the recognizance is not a fatal
defect when the recognizance is other-
wise sufficiently identified. Miller v.
Com., 1 Duv. 14.
(26) In a proceeding on a forfeited re-
cognizance the court, on motion of the
surety, quashed the indictment and ren-
dered judgment for the forfeiture ; on
an appeal this judgment was affirmed.
Little V. Com., 3 Bush 22; Com. v. Row-
land, 4 Met. 225.
(27) In a proceeding to recover against
the personal representative of the bail no
demand is necessary. Arnold v. Com.,
80 Ky. 135.
(28) Remission of amount due by bail.
See sec. 98 and notes.
§9a. (1) Remittloo. The Code confers
on the court a judicial discretion to
render judgment in a proceeding on the
bond for such part of the penalty as
may be just and proper ; this discretion
is to be exercised judicially upon a con-
sideration of all the facts of the case.
Com. V. Thornton, 1 Met. 380 ; Com. v.
Coleman, 2 Met. 382.
(2) A defendant indicted for felony,
whose recognizance had been forfeited,
surrendered himself to the court before
a judgment was entered against the bail;
the bail moved the court to dismiss the
proceedings upon the forfeited bond;
this, though not a formal, was a substan-
tial application for remission, and the
motion having been sustained by the
court will not be disturbed. Com. v.
Coleman, 2 Met. 382 ; Com. v. David-
son. 1 Bush 133.
(3) The power of the court to remit,
in whole or In part, the penalty of a for-
feited recognizance Is a judicial, not an
arbitrary, discretion, and the fact that
the defendant has been either surren-
dered or arrested must be alleged and
shown in the defense, and is indispen-
sable to the exercise of the discretion
allowed to be exercised by the court.
Com. V. Rowland, 4 Met. 225 ; Yarbrough
v. Com., 89 Ky. 151.
(4) The court has power to set aside a
judgment against the bail on the for-
feited bond on the day it is entered, and
remit the penalty. Com. v. Runnion, 3
Met. 2. See and compare Com. v. Rad-
ford, 2 Duv. 9.
(5) Neither the Commonwealth's at-
torney nor the clerk is entitled to com-
missions upon a forfeited bond unless a
judgment has been rendered and it has
been collected, in whole or in part.
Where the governor remits the for-
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TITLE V]
EECOMMITMBNT AFTER OIVIKO BAIL.
425
CHAPTER V.
RECOMMITMENT AFTER GIVING BAIL OR DEPOSITING MONEY.
§ 99. Defendant on baU may be arrested.
§ 100. Clerk to issue warrant — defendant may be again bailed.
§ 99 [t«] Defendaot ob bail may be arrested. The court in which a
prosecution for a public offense is pending shall, by an order, direct
the defendant to be arrested and committed to jail until legally
discharged, after he has given bail or deposited money in lieu
thereof, in the following cases :
1. When, by having failed to appear, a forfeiture of bail or of
the money deposited has been incurred.
2. When the court is satisfied that his bail, or either of them, is
dead, or insuflicient, or has removed from the State.
3. Upon an indictment being found for an offense not bailable.
§ 100 [tT] Clerk to issue warrant — defeadant may be agaia bailed. Upon such
order being made, the clerk shall issue process for the arrest and
recommitment of the defendant. If the order be made in either of
the cases mentioned in the first or second subdivisions of the preced-
ing section, the defendant shall be admitted to bail as upon his first
commitment, in a sum to be fixed by the court, and named in the
process for his arrest. ( Who may take baily sees. 68^ 83)
feiture before judgment the attorney is
not entitled to commission. Com. v. *
Oflfut, 82 Ky. 326; Com. v. Spragglns,
18 B. M. 512; Com. v. Ramsay, 2 Duv.
385 ; Brown V. Com., 4 Met. 222.
in remitting the penalty in a bail bond
will not be controlled by the Court of
Appeals unless flagrantly abused. Com.
V. Davidson, 1 Bush 133 ; Com. v. Row-
land, 4 Met. 225 ; Com. v. Coleman, 2
(6) The discretion of the circuit court Met. 382 ; Yarbrough v. Com., 89 Ky. 151.
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426 aBAND JURY, ITS POWERS AND DUTIES. [TITLB VI
TITLE YI.
TRIAL.
Chaftbb I. Grand jury, its powers and ditties, 101.
II. Indictment, 118.
1. The finding op an indictment, 118.
2. Form and requisites of an indictment, 122.
III. Process on an indictment, 138.
IV. Production of evidence, 150.
V. Arraignment and pleadings bt the defendant, 154.
VI. Trial, 180.
1. Mode of trial, 180.
2. Time of trial, 185.
3. Postponement of trial, 188.
4. The JURY, 190.
5. Conduct of jury trial, 217.
6. Verdict, 255.
VII. New trial and arrest of judgment; 269.
VIII. Bills of exception, 280.
IX. Judgment, 283.
X. Execution, 293.
CHAPTER I.
GRAND JURY, ITS POWERS AND DUTIES.
§ 101. Grand jury selection and formation of.
§ 102. Investigation and indictment.
§ 103. Free access to prisons and public records.
§ 104. Grand juror to disclose offenses known to him.
§ 105. Witnesses' attendance, how secured.
§ 106. Foreman can swear witnesses.
§ 107. Evidence that jury may hear.
§ 108. Witness — how compelled to testify.
§ 109. CJourt and Commonwealth's attorney to advise.
§ 110. Presence of persons when charge examined or voted on.
§ 111. Indictment should be found — when.
§ 112. Proceedings to be kept secret.
§ 113. Grand juror may be required to disclose testimony — when.
§ 114. Not responsible for acts or votes except per jury.
§ 115. Papers of examining court laid before— failure to indict— resubmission.
§ 116. Court may order charge dismissed resubmitted.
§ 117. Failure to indict at succeeding term— effect.
§ 101 [til Qraad Jury selection and formation of. The selecting, summoning
and impaneling of a grand jury shall be as prescribed in the General
§ 101. (1) Qraod jnry. The summon- services of sheriff or coroner, the court
ing of bystanders to serve on the grand has no authority to authorize any other
jury is a duty in the performance of person to summon bystanders on the
which the accused is entitled to the grand jury, and is ground for quashing
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TITLE Vl] GRAND JURY, ITS P0WBR8 AND DUTIES. 427
Statutes [now Kentucky Statutes]. {As to grand juries in police courts^
sec. 307. See Ky. StcU., sec. 22J^1^ for provisions concerning juries.)
§ 102 [ft. 109] lovestif atioa aad iidictiDeiit It is the duty of the grand jury
to inquire :
1. Into the case of every person imprisoned in the county jail, or
on bail, to answer a criminal charge in that court, and who is not
indicted.
2. Into the condition and management of the public prisons in
the county.
8. Into the willful and corrupt misconduct in office, of public
officers of every description, in the county.
4. Concerning all public oflfenses of which the court in which
they are impaneled has jurisdiction : and to indict such persons as
they may find guilty thereof. ( When indictment to state locality of
misdemeanor^ sec. 16; as to jurisdiction ^ see sees. 13 to 26)
§ 103 [io«] Free access to prisons and public records. They are entitled to
free access, at all reasonable times, to the public prisons, and to the
examination, without charge, of all public records in the county.
§ 104 [104] Grand juror to disclose offenses known to bim. If a member of
the grand jury know, or have reason to believe, that a public offense has
been committed within the jurisdiction of the court, he must declare the
same to his fellow-jurors, who must thereupon investigate the same.
§ 105 [112] Witnesses' attendance, bow secured. The clerk, on the request
of the foreman of the grand jury, or of the Commonwealth's attor-
ney, during a term or in vacation, shall issue subpoenas for witnesses
to appear before the grand jury, and upon the witnesses failing to
attend, in obedience thereto, the court shall proceed to coerce their
attendance, and may punish their disobedience by fine and imprison-
ment, as in the case of witnesses failing to attend on the trial. {Sub-
pcenafor witnesses in vacation, Ky. Stat,, sec. 381.)
§ 106 [101] Foreman can swear witnesses. The foreman of the grand jury
indictment. Ck)m. v. Graddy, 4 Met. setting it aside. Com. v. Pritchett, 11
223. Bush 277.
(2) It did not appear in the order of (4) See further, as to qualifications of
court that one of those selected as grand juror, Ky. Stat., sec. 2248; as to
grand jurors was appointed by the finding and presentment of indictment^
judge as foreman, which the law re- sees. 118-121 of Code; as to ground upon
quires to be done, or that they were which Indictment may set aside, sec. 158
sworn, but in the absence of evidence to of Code and notes thereto.
the contrary it will be presumed both §102. (1) iH>wer of fraod jury over indict-
were done. Com. v. Pullan, 3 Bush 47. meets. See note 2 to sec. 159.
(3) That a member of the grand jury (2) See, as to foreman and oath to jury,
was a school trustee when the indict- Ky. Stat., sec. 2250; and sees. 118-121,
ment was found, is no ground for and 158 of the Code.
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428 GRAND JURY, ITS POWBRS AND DUTIES. [tITLB VI
shall have power to administer the oath to the witnesses appearing
before the grand jury.
§ 107 [102] Evidence that jury may hear. The grand jury can receive
none but legal evidence ; they are not bound to hear evidence for the
defendant; but it is their duty to weigh all the evidence before
them, and if they believe that other evidence, within their reach, will
explain away the charge, they should order the evidence to be pro-
duced.
§ 108 :iisi Witness — how compelled to testify. When a witness under
examination refuses to testify, or to answer a question put to him
by the grand jury, or by the attorney for the Commonwealth, the
foreman shall proceed with the witness into the presence of the court,
and there distinctly state the refusal of the witness, and if the court,
upon hearing the witness, shall decide that he is bound to testify or
answer the question propounded, he shall inquire of the witness if he
persists in his refusal, and if he do, shall proceed with him as in cases
of similar refusal in open court.
§ 109 [lOT] Court aod CommoBwealth*8 attorney to advise. The grand jury
may, at all reasonable times, ask the advice of the court, or the attor-
ney of the Commonwealth ; and such attorney may, when requested
by the grand jury, interrogate witnesses before it.
§ 110 [101] Presence of others when charge examined or voted on. !No person
except the attorney for the Commonwealth: and the witness under
examination shall be present while the grand jury are examining a
charge ; and no person whatever while they are deliberating or vot-
ing on a charge. {Presence of other persons cause for setting aside
indictment^ sec. 158.)
§ 111 [108] Indictment should be found — when. The grand jury should find
an indictment when all the evidence before them would, in their
judgment, if unexplained, warrant a conviction by the trial jury.
§ 112 [lot] Proceeding to be kept secret. Every member of a grand jury
must keep secret whatever he himself, or any other grand juror, may
have said, or in what manner he, or any other grand juror, may have
voted on a matter before them.
§ 113 [110] Grand juror may be compelled to disclose testimony — ^when. A mem-
ber of the grand jury may, however, be required by a court to disclose
§ 107. Evidence srand iary shall bear. § 112. Proceediafs to be kept secret The
The court has no power to set aside an in- testimony of grand jurors is not compe-
dictment because incompetent testimony tent to explain the grounds of their de-
was heard by the grand jury. Com. v. cision or to impeach the validity of their
Minor, 89 Ky. 555. finding. Com. v. Skeggs, 3 Bush 19. See
§ W. Power of srand jury over ifldictmeflts. notes to sec. 1 58.
See note 2, sec. 159. § 113. False sweariof. It was held be-
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TITLE Vl] GRAND JURY, ITS POWERS AND DUTIES. 429
the testimony of a witness examined before the grand jury, for the pur-
pose of ascertaining its consistency with the testimony given by the
witness on the trial, or for the purpose of proceeding against the wit-
ness for perjury [or false swearing] in his testimony, or upon the trial
of a prosecution of the- witness for perjury [or false swearing]; and
it shall be the duty of the foreman of the grand jury to communicate
to the attorney for the Commonwealth, when requested, the substance
of the testimony before them. {Words in brackets inserted by act 1893)
§ 1 14 [111] Not responsible for acts or votes, except perjury. A grand juror
can not be questioned for anything he may say, or any vote he may
give, relative to a matter legally before the grand jury, except for a
perjury he may have committed in making an accusation, or giving
testimony, before his fellow -jurors.
§ 115 [114] Papers of examinini^ court laid before — ^failure to iodict — resubmission.
All the papers and other matters of evidence relating to the arrest
of, and examination of the charge against, persons committed, or on
bail, returned to court by magistrates, shall be laid before the grand
jury, and if, upon investigation, they refuse to find an indictment, they
shall write upon some one of the papers " dismissed," with the sig-
nature of the foreman, and thereupon the court shall discharge the
defendant from custody, if in jail, or exonerate the bail, if bail have
been given, and order the return of any money which may have been
deposited, in lieu of bail,to the person depositing it, unless the court
be of opinion that the charge should be sub'mitted to another grand
jury, in which case the defendant may be continued in custody, or on
bail, until the next term of the court.
§ 116 [iiB] Court may order chargt dismissed resubmitted. The dismissal of
the charge does not prevent it being again submitted to a grand jury,
as often as the court may direct, but without such direction it can
not again be submitted. (Beference to giandjury^ sees. 159^ 160; dis-
missal^ when not a bar^ sec. 178,)
§ 117 [ii«] Failure to indict at succeeding term — effect Unless an indict-
ment be found at the term of the court next after the first submission
fore amendment to this section that a §117. (1) Failure to iodict releases bail.
grand juror was not a competent witness Where the grand jury fails to indict as
in a prosecution for false swearing. Com. provided in this section tlie bail is ex-
V. Scowden, 93K3'. 120;and8eeKy. Stat., onerated, although no order is entered
»eo. 1174. discharging the bond. Bryant v. Com.,
§ 114 Grand inrar not liable. A grand 3 Bush 9 ; Com. v. Blincoe, 3 Bush 12 ;
juror is not civilly liable in an action for Com. v. Roberts, 4 Met. 219. Sec. 116,
damages for anything he may have said, Code of 1S54, provided that the defendant
or any vote he may have given relative should be discharged ** unUsa for cauae
to any matter legally before the grand shown " the court should otherwise di-
jury. Ullman v. Abrahams, 9 Bush 738. rect; these words are omitted from this
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430 THB FINDING OF AN INDICTMENT. [tITLB VI
of the charge to the grand jury, the same proceedings shall be had as
directed in section one hundred and fifteen upon a dismissal of the
charge, unless the court otherwise direct. {Reference to grand jury,
sees. 159, 160.)
CHAPTER II.
INDICTMENT.
Article 1. The finding op an indictment, 118.
2. The fobm and bequisites of an indictment, 122.
ARTICLE 1.
the finding of an indictment.
§ 118. Indictment defined.
§ 119. Nine jurors must concur — foreman to indorse.
§ 120. Names of witnesses to be written on indictment.
§ 121. Manner of presenting to court^lerk to file.
§ 118 [iiT] ladictmeot defioed. An indictment is an accusation in writ-
ing, found and presented by a grand jury to the court in which they
are empaneled, charging a person with the commission of a public
offense. {Lost or stolen indictment, see Ky, Stat,, sec. II40.)
§ 119 [iiij Nine jurors to coocnr — ^fforemao lo indorse. The concurrence of
[twelve] grand jurors is required to find an indictment ; when so
found, it must be indorsed " a true bill," and the indorsement signed
by the foreman. {Nine may find indictment, see Constitution, sec. 24S.)
section. See Rion v. Com., 1 Duv. 235; which he was tried without any order
Com. V. Roberts, 4 Met. 219, construing having been made disposing of former
sec. 116, Code of 1854. indictment, the court held that the sub-
(2) Attorney for Commonwealth must stantial rights of the accused were not
state in writing reasons for dismissal. prejudiced. Blyew v. Com., 91 Ky. 200.
Ky. Stat., sec. 123. (3) ladictmeat lost or stolen— limitation.
§ 118. (1) Court ao power to change See Ky. Stat., sec. 1140.
charge in an indictment, even with con- (4) Newiadlctmentmaybefooad in county
sent of accused, although the facts to which a change of venue is taken. Ky.
stated in indictment constitute a diflfer- Stat., sec. 1177, and defendant can not
ent olTense from that charged. Com. v. object to it because found in that county.
Adams. 92 Ky. 134. Parker v. Com., 12 Bush 191 ; Jenning V.
(2) Pailare to dispose of an indictment Com., 13 R. 79.
Where a defendant was indicted for mur- (5) See further, sec. 158 and notes,
der, and after the expiration of several § 119. (1) Construction of section. This
years another indictment was found section is mandatory, and the indictment
against him for same offense, under must be Indorsed a ** true bill " and
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TITLE Vl] FORM AND REQUISITES OF AX INDICTMENT. 431
§ 120 [lit] Names of witnesses to be writtea oa iadlctment When an indict-
ment is found, the names of all the witnesses who were examined
must be written at the foot of or on the indictment.
§ 121 [110] Maaaer of presentiof indictmeat to court — clerk to file. The indict-
ment must be presented by the foreman, in the presence of the grand
jury, to the court, and filed with the clerk, and remain in his office
as a public record.
ARTICLE 2.
FORM AND RSQUISrrBS OF AN INDICTMENT.
§ 122. Requisites of an indictment.
§ 123. Form of indictment.
§ 124. Facts concerning which it must be direct and certain.
§ 125. Error in name of accused may be corrected.
§ 126. To charge but one offense— exception.
§ 127. Joinder of offenses in indictment.
§ 128. Statements as to person injured or owner of property.
§ 129. Time offense committed — statement as to.
§ 130. Presumptions of law need not be stated — ^judicial notice.
§ 131. Judgment how pleaded— jurisdictional facts.
§ 132. Libel — allegations of indictment for.
§ 133. Written instruments — description of.
§ 134. Perjury or subornation of— necessary allegations.
§ 135. Larceny or embezzlement of money — sufficiency of indictment.
§ 136. Words of statute defining offense need not be strictly followed.
§ 137. Construction of words used in indictment.
§ 122 iisi, 121, itf] Requisites of an iodictmeBt. The indictment mast
contain —
signed by the foreman. Oliver v. Com., (2) Clerk's indorsement of filing of in-
95 Ky. 372 ; Pence v. Com., 95 Ky. 618; dictment is not essential, and when
86 Ky. 313 ; but the right to object to an omitted may be supplied. Pence v.
indictment because defective in these re- Com., 95 Ky. 618.
spects is waived by bailing to demur or (3) Preseatiag iadictmcBt An indict-
move to set it aside. Patterson v. Com., ment for grand larceny for stealing sheep
86 Ky. 313. was indorsed on its back and described
(2) Poremaa of frand jory— oath to jury, in the order filing it as an indictment
Ky. Stat., sec. 2250. for *' sheep stealing." Held sufficient
§ 121. (1) Piliaf indictmeot. When the identification of the indictment. Com.
record shows that an indictment is re- v. English, 6 Bush 431.
turned into court as required by Code (4) It is not necessary to the validity of
and ordered to be filed, the failure of the an indictment that it should show upon its
clerk to sign the indorsement on back of face that it had been presented on oath by
indictment to the effect that it was filed the grand jury. Jane v. Com., 3 Met. 18.
in oi)en court will not authorize its dis- (5) See further, sec. 158 and notes,
missal. Patterson v. Com., 86 Ky. 313; § 122. (1) Abortion. It is necessary
Pearce v. Com., 10 R. 178. that an indictment for abortion should
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432
FORM AND REQUISITES OF AN INDICTMENT.
[title VI
1. The title of the prosecution, specifying the name of the court
in which the indictment is presented and the names of the parties.
allege that the mother was quick with
child, and that the potion was adminis-
tered with the intention to destroy the
life of the child, and that such was its
effect. Mitchell v. Com., 78 Ky. 204 ;
but where the indictment is for the death
of the mother as the result of an abor-
tion, it is not necessary to allege that de-
ceased was ** quick" with child. Peo-
ples V. Com., 87 Ky. 487.
(2) Accessory. An accessory before the
fact is in legal contemplation guilty of
murder if guilty at all ; and an indict-
ment in which the offense charged is
murder is good, although the particular
circumstances of the offense as set out
in the indictment constitute the person
an accessory before the fact and not a
principal. Stricklin v. Com., 83 Ky.
566 ; and see as to accessory after the
fact, Tully v. Com., 11 Bush 154 ; Tully
V. Com., 13 Bush 142; Able v. Com., 5
Bush 698.
(3) See further, as to accessory before
the fact, Ky. Stat., sec. 1128; after the
fact, Ky. Stat., sec 1129.
(4) Aiders sod abettors. When two per-
sons are jointly indicted for murder, one
as principal and the other as aider and
abettor, the one charged as principal
may be found guilty of aiding and abet-
ting, and the one charged with aiding
and abetfcing may be found guilty as
principal. Benge v. Com., 92 Ky. 1.
(5) Aider and abettor in crime created
by statute punishable. Com. v. Carter,
94 Ky. 527 ; overruling Stamper v. Com., 7
Bush 612; and see Frey v. Com., 83 Ky. 191.
(6) An indictment against A and B,
which in one count charges both of them
with a felony, and in another count
charges A as principal and B as an aider
and abettor, and in the third count
charges B as principal and A as aider and
abettor is good, and one of them may be
found guilty of a felony and the other of
a misdemeanor. Cupp v. Com., 87 Ky.
35 ; and see Ky. Stat., sees. 1128, 1129.
(7) Aiders and abettors in crime of
house-breaking. Ward v. Com., 14 Bush
233; and see Ky. Stat., 1162.
(8) Aiders and abettors in crime of
malicious shooting or wounding. See
Ky. Stat., sec. 1166, and Com. v. Patrick,
80 Ky. 605, where it is held that under
this statute the person who committed
the offense must be charged with it. and
then others may also be charged with
aiding and abetting in it, but all of them
can not be charged as principals ; and
see 87 Ky. 35.
(9) Aiders and abettors in crime of
rape. Kessler v. Com., 12 Bush 18 ; Ky.
Stat., 1152; in crime of house-breaking,
Mullins V. Com., 14 R. 569.
(10) ** In order t<J convict one as aider
and abettor the indictment must include
the principal actor jointly, or disclose
who he is together with a description of
his acts." Mulligan v. Com., 84 Ky.
229 ; and see Benge v. Com., 92 Ky. 1.
(11) Arsoa, The ownership of the
property was sufficiently alleged in an
indictment that charged that the house
was occupied by* Hattie Taylor as a resi-
dence. It is not necessary that the name
of the owner in fee be given. Under an in-
dictment for arson the defendant may be
convicted of. the crime of an attempt to
commit arson. Young v. Com.,12Bush 243.
(12) An indictment charging that of-
fense was committed ** feloniously and
willfully," omitting the word ** ma-
liciously," is sufficient for the common
law offense. Aikman v. Com., 13 R.
894; Young v. Com., 12 Bush 243. The
Ky. Stat., sec. 1170, in defining certain
kinds of arson, uses the word **mali-
ciously " but in cases supra it is held that
the word "feloniously" embraces the
word " maliciously."
(13) The failure of indictment to ex-
pressly aver that dwelling house was oc-
cupied as a residence does not vitiate it,
if it is charged th^ the dwelling-house
was occupied. Com. v. Elliston, 14 R.
216; Ky. Stat., sec. 1170.
(14) See further, as to indictment for
burning a barn or warehouse, Deshaaer
V. Com., 12 R. 453 ; Evans v. Com., 11 R.
573 ; Ky. Stat., sec. 1169 : or church edi-
fice, McDonald v. Com., 86 Ky. 10.
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TITLB Vl]
FORM AND REQUISITES OF AN INDICTMENT.
483
2. A statement of the acts constituting the offense, in ordinary
(15) Assault aad battery. An assault
and battery is punishable by either fine
or imprisonment or both fine and im-
prisonment, in the discretion of the
jury. CJornelison v. Ck)m., 84 Ky. 583.
(16) An indictment charging that the
defendant **did in sudden heat and pas-
sion, without previous malice and not in
self-defense, strike and wound G with a
pair of blacksmith's tongs, which said
tongs was then and there a deadly weap-
on" is good only as an indictment for
assault and battery. Com. v. Hawkins,
11 Bush 603. A former conviction for a
breach of the peace is a bar to a subse-
quent prosecution for an assault and bat-
tery for the same act, lb.
(17) Under an indictment for a simple
assault it is error to admit proof of a
battery ; every battery includes an as-
sault, but an assault does not include a
battery; an assault and battery is an of-
fense of a higher grade than a simple
assault. Furnish v. Com., 14 Bush 180 ;
see further, as to degrees of offense
sees. 362-264.
(18) Blfany. An indictment for big-
amy charging that '* Eliza Davis on the
day of May, 1877, in the county and
State aforesaid, and before the finding of
this indictment, having a husband
then living, unlawfully married John
Mac key," is not sufficient; it should aver
the place of the first marriage and set
out the name of the first husband or
wife. Davis v. Com., 13 Bush 318, over-
ruling Com. V. Whaley, 6 Bush 266 ; and
see Ky. Stat., sec. 1216.
(19) '* It is immaterial in an indict-
ment for bigamy at what particular
date the first marriage occurred, if
the accused had at time of second mar-
riage a living wife to whom he had been
previously married." Faustre v. Com.,
92 Ky. 34; and see as to immaterial vari-
ance in name of first wife, note 3, sec. 124.
(20) The offense of bigamy committed
by marrying in another State while the
former marriage is in force is not an of-
fense against the laws of this State.
Johnson v. Com., 86 Ky. 122.
(21) Bribeiy. As to sufficiency of in-
dictment for, see Ky. Stat., sees. 1586,
(28)
1587 ; and Johnson v. Com., 90 Ky. 53;
Cheek v. Com., 87 Ky. 42 ; Com. v. Sel-
by, 87 Ky. 594. Com. v. Root, 16 R. 491.
(22) Borfiary. An indictment for burg-
lary described the house ** as the house
of A. Dominick " held sufficient descrip-
tion. To make out the offense of burglary
it is not necessary to prove that goods
were actually stolen and carried away, it
is sufficient if the storehouse was felo-
niously broken with the intention of so
doing, nor is it necessary to charge that
the house was ** burglariously " broken
and entered. Charles Olive v. Com., 5
Bush 376 ; see Com. v. Bruce, 79 Ky.
560; and see Ky. Stat., sec. 1159. Lar-
ceny is a degree of the offense. Com. v.
Prewitt, 82 Ky. 240. Triplett v. Oom.»
84 Ky. 193.
(23) Caption of iadictmeot which omits
name of county in which it was found
is not defective when the body of indict-
ment states the county. Johnson v. Com.,
12 R. 835.
(24) Coafedenitiflg and bandiiif together
to intimidate. Ky. Stat., sec. 1223;
Buchanan v. Com., 95 Ky. 334.
(25) Conspiracy to commit crime. Defi-
nition of and necessary allegations in in-
dictment for. Com. V. Ward, 92 Ky.
158.
(26) Corporation liable to indictment for
an offense which is either a misfeasance
or a nonfeasance of duty to the public the
punishment for which is a fine, as for
permitting gaming on premises under its
control. Com. v. Pulaski Co. A. & M.
Association, 92 Ky. 197.
(27) Connteifeitinf. In an indictment
for counterfeiting it is necessary to allege
that the bank on which the bill pur-
ported to be was a bank incorporated by
law. Kennedy v. Com., 2 Met. 36;
Clark V. Com., 16 B. M. 206; and to
identify with reasonable certainty the
coin. Com. v. Fields, 5 R. 610 ; and see
Ky. Stat., sec. 1181.
(28) Defacinf brands on logs— requisites
of indictment for. Com. v. Puckett, 92
Ky. 206 ; Johnson v. Com., 14 R. 257 ; and
see Ky. Stat., sec. 1409.
(29) Directness and certainty in stating
offense, see sec. 124 and notes.
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and concise language, and in such a manner as to enable a person
(30) DneliflS. See Moody v. Com., 4
Met. 1 ; and Ky. Stat., sec. 1209.
(31) Eoibezzlciiieot Ky. Stat., sec. 1202,
and Shelburn v. Com., 85 Ky. 173, hold-
ing that a clerk, business manager or
other agent is not guilty of embezzle-
ment where money converted by him
was collected by him for his principal
and with his authority ; and see Com. v.
Clifford, 16 R. — . Nor is agent of indi-
vidual who fails to pay over money to
his principal guilty of embezzlement.
Com. V. Bull, 5 R. 605. Indictment for,
need not specify the coin or number or de-
nomination of money taken. Jones v.
Com., 13 Bush 356.
(32) Generally where the agent has
received goods or money to carry, de-
liver or control for his principal, unless
the agent parts with the manual pos-
session and delivers the property to
the principal or another for him or
places it in some depository to which the
principal has access, or over which he
has control, he can not be convicted of
larceny for a felonious appropriation of
it, the offense being embezzlement. War-
moth V. Com., 81 Ky. 133: Johnson v. Com.,
5 Bush 430; Barclay v. Breckinridge,
4 Met. 374; Snapp v. Com., 82 Ky.
173.
(33) False pretense. An indictment for
obtaining property under false pretenses
must aver what the false pretenses were
and that th^ related to some pretended
past occurrence or existing fact, and
were made for the purpose of inducing
the party injured to part with his prop-
erty ; no statement of anything to take
place in future is a false pretense within
the meaning of the act. Glackan v.
Com., 3 Met. 232; Com. v. Haughey, 3
Met. 224 ; nor can the prosecution be
maintained if the party defrauded had
the means of detection at hand. Com.
V. Grady, 13 Bush 285 ; and where the
false pretense is made in one State and
the money or property obtained in an-
other, the courts of the latter have juris-
diction of the offense. Com. v. Van
Tuyl, 1 Met. 1; it is not material whether
or not property obtained belonged to per-
son alleged to be owner of it in indict-
ment. Hennessy v. Com., 88 Ky. 301 ;
nor is value of article obtained material.
Jackson v. Com., 86 Ky. 1.
(34) If one obtains a loan of money
from another by a false statement as to
an existing fact, although he intends to
repay it, he is guilty ; as is one who,
while in the possession of money belong-
ing to another, obtains the title by a
false pretense, it is not necessary in latter
case that possession should have been
obtained by false pretense. Com. v.
Schwartz, 92 Ky. 510 ; see Ky. Stat., sec.
1208, and Com. v. Moore, 89 Ky. 542 ;
Com. V. Barnett, 95 Ky. 302.
(35) False swearlas. One can not be
punished for false swearing unless the
false oath was taken on a subject on
which he could be legally sworn and be-
fore a person legally' authorized to ad-
minister an oath. Kerfoot v. Com., 89
Ky. 174; Com.v. Kane, 92 Ky. 457; indict-
ment should follow precise words of
statute. Com. v. Taylor, 16 R. 482; see
Ky. Stat., sec. 1174.
(36) An indictment for false swearing
under the statute will be sufficient if it
allege that the false oath was taken
knowingly and willfully on a subject
concerning which the party could be
legally sworn, and before a person legally
authorized to administer the oath. It is
not necessary that the false oath should
be taken in a matter judicially pending
at the time, or concerning a matter ma-
terial to any point in issue. Com. v.
Powell, 2 Met 10 ; and see Com. v. Still,
83 Ky. 275 ; Richey v. Com., 81 Ky. 524 ;
Biggerstaff v. Com., 11 Bush 169; Com.
V. Maynard, 91 Ky. 131; Spencer v. Com.,
15 R. 182.
(37) The matter alleged to have been
sworn must be negatived by special aver-
ment in the indictment. Com. v. Kane,
92 Ky. 457 ; Com. v. Still, 83 Ky. 275 ;
see further, notes to sec. 134.
(38) Forgery. To charge that the ac-
cused **did forge the name of A to an
instrument of writing purporting to be
the promissory note of M for $380, pay-
able to C fourteen months after date,
and dated 4th of March, 1872, with intent
to defraud," is not sufficient; if the in-
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of common understanding to know what is intended; and
dictment had charged that the accused
3tgned A's name to the instrument with-
out authority, or that he procured
somebody else to so sign it, with the inten-
tion to defraud, it may have been good.
As to whether it is necessary to aver the
person intended to be defrauded is not de-
cided, but the acts constituting the offense
must be set out. Stowers v. Com., 12
l^ush 342 ; and see Mount v. Ck)m. 1 Duv.
00; and see sec. 133, and Ky. Stat.,
sec. 1185.
(39) Indictment alleging that defend-
ant did "utter and publish" as true a
certain false "forged and counterfeited "
order charged but a single offense. John-
son v. Com., 90 Ky. 488. One may be
guilty of forgery by signing a writing in
his own name if it be false in any ma-
terial part and calculated to induce an-
other to give credit to it as genuine.
Com. V. Wilson, 89 Ky. 157.
(40) Indictment for uttering a forged
writing must state the acts constituting
the uttering and not the forging of the
writing. An allegation in the indict-
ment that defendant knew the writing
to be false embraces the charge that it
was so in fact. Lockard v. Com., 87 Ky.
201; Purvis v. Com., 13 R. 744; see fur-
ther as to forgery of bank check, Rawlins
v. Com., 7 R. 595; Kennedy v. Com., 3
Met. 36 ; as to alteration of bank check,
Com. v. Hide, 94 Ky. 517; as to forgery
of witness certificate, Moore v. Com.,
92 Ky. 630.
(41) Pomer coovktiofls. Necessary al-
legations in indictment charging former
convictions. Boggs v. Com., 9 R. 342 ;
Mount v. Com., 2 Duv. 93 ; Taylor v.
Com., 3 R. 783; Stewart v. Com., 2 R.
386 ; Chenowith v. Com., 11 R. 563 ; and
see Ky. Stat., sec. 1130.
(42) Qamlmg. An indictment charging
the defendant with permitting "a game
of chance called pigeon-hole '* to be
played for " greenbacks" in his house is
good on demurrer. Com. v. Branham, 3
Bushl.
(43) An indictment for setting-up and
keeping a keno table must aver that it is
a contrivance ordinarily used for gaming.
Com. V. Monarch, 6 Bush 298; and see
Ritte V. (Dom., 18 B. M. 35; Ky. Stat.,
sec. 1960.
(44) In an indictment for setting-up,
exhibiting and keeping a faro bank, it is
sufficient to allege that it was set-up, ex-
hibited and kept, without adding any
words descriptive or explanatory of the
purpose for which it was or may be used,
the faro bank being mentioned in the
statute by name. Waddell v. Com., 84
Ky. 276; Com. v. Monarch, 6 Bush 298.
(45) An indictment charging that de-
fendant suffered certain named persons
** to play in a house or on premises in the
county aforesaid, then in the occupation
and under the control of the said Perrigo,
a game of cards, at which game of cards
played as aforesaid, money or property
was won and lost " is not sufficient, being
too indefinite. Com. v. Perrigo, 3 Met. 5.
(46) An indictment charging that the
defendant " was the owner, occupier and
controller of a house and ten-pin alley at
which games were played and money
and other things bet, won and lost by his
permission, and that he and others played
at such games, and money and other val-
uable things were bet, lost and won
thereon," is sufficient. Com. v. Fraize. 5
Bush 325.
(47) A corporation may be indicted for
permittinggamingon its premises. Com.
V. Pulaski A. and M. Association, 92 Ky.
197.
(48) Indictment charging that defend-
ant did "unlawfully set-up, exhibit and
keep for himself and another" a faro
bank, charges but a single offense.
Vowells V. Com., 84 Ky. 52 ; see Ky.
Stat., sec. 1960.
(49) Hoose-breakifls. See Ky. Stat.,
sec. 1162 ; and Com. v. Ward, 14 Bush
233, where it is held that indictment
must charge that the taking was with
the intention to deprive the owner of his
property or to convert it to the use of the
accused ; but in Com. v. Wicker, 9 R.
474, the court say it is not necessary to
allege the name of the owner of the
property taken, nor to aver that it was
taken without the owner*s consent and
with the intention to convert it to his
own use; to the same effect is Mitchell
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with such degree of certainty as to enable the court to pro-
V. Com., 88 K}'. 349, where Com. v.
Ward is distinguished, and Johnson v.
Com., 87 Ey. 189, holding that it is not
necessary to describe the owner of the
house, or property taken with any more
certainty than is necessary to inform ac-
cused of the ofifense charged, and bar a
second prosecution therefor. See further,
Com. V. Bruce, 79 Ky. 560 ; Farris v.
Com., 90 Ky. 637; but to constitute
offense there must be a breaking. Webb
V. Com., 87 Ky. 129; and an aider and
abettor may be convicted. Mullins v.
Com., 14 R. 569.
(50) Iflfantklde. An indictment charg-
ing that the defendant ** did feloniously
conceal the birth of a bastard child, the
issue of her body, by secreting the said
child so that it might not be known
whether or not it had been born alive,"
is not good; the acts showing what the
defendant did should have been set out.
Foster v. Com., 12 Bush 373; and see
Com. V. Hopkins, 9 R. 432; Wade v.
Com., 1 R. 408; Frey v. Com., 83 Ky.
190, and Ky. Stat., sec. 1220.
(51) Inlory to property. Sufficiency of
indictment under sees. 1256, 1257, Ky.
Stat.; Ellis v. Com., 78 Ky. 130; Com. v.
Powell, 8 Bush 7; Com. v. Searls, 3 R.394.
(52) Joiflt ifldictment against several, if
it appear in proof that either is guilty
he may be punished the same as if in-
dicted alone. Weatherford v. Com., 10
Bush 196.
(53) Larceny. An indictment charging
the defendant with feloniously stealing,
taking and carrying away " one twenty
dollar note and one ten dollar note, both
of said notes being of the United States
currency commonly called greenbacks.
Said notes are not and were not before
the grand jury, and could not by said
jury be had before it, because the where-
abouts of said notes was not and could
not be known to said jury ; therefore,
said notes can not be more particularly
described, either as to their date, num-
ber, or as to whether they belonged to
the class technically called green or
black backs," is sufficient under section
135. Jones v. Com., 13 Bush 356. Rhodes
V. Com., 2 Duv. 157, was decided under
Code of 1854; and see sec. 135, which
was not In Code of 1854, and Com. v.
Mann, 12 R. 477 ; Ky. Stat., sec. 1194.
(54) An allegation that the property
stolen was ** the property of the Tennes-
see River Packet Company, D. W. Swan,
Little Brothers and others," is sufficient
as to the ownership of the property.
Reed v. Com., 7 Bush 641.
(55) As to what constitutes larceny,
see Elliott v. Com., 12 Bush 176 ; Nichols
V. Com., 78 Ky. 180; Williams v. Com.,
78 Ky. 93; Miller v. Com., 78 Ky. 15;
Warmouth v. Com., 81 Ky. 133; Snapp
v. Com., 82 Ky. 173 ; Ky. Stat., sec. 1194.
(56) Chandeliers attached to the free-
hold are held to be the subject of larceny,
and it is immaterial whether the carry-
ing away was immediate and continu-
ous, or the removal was at different pe-
riods after severance. Smith v. Com.,
14 Bush 31.
(57) Local optkm. *'A person may in
the same indictment be charged with
more than one violation of the local op-
tion law, as it is called ; but each offense
should be separately charged, and the
statement of the particular circum-
stances of each should be direct and
certain." South v. Com., 79 Ky. 493;
and see Young v. Com., 14 Bush 161 ; in-
dicating how indictment should be
drawn ; and Ky. Stat., sec. 2557.
(58) Physician — indictment against
under local option law. Com. v. Green,
80 Ky. 178 ; Com. v. Minor, 88 Ky. 432 ;
Sawls V. Com., 83 Ky. 327.
(59) Lottery. As to indictments for
selling lottery tickets, see Com. v. Bier-
man, 13 Bush 345 ; Com. v. Bull, 13 Bush
656. For promoting and aiding the pro-
motion of a lottery, see Miller v. Com.,
13 Bush 731 ; and Ky. Stat., sec. 2573.
(60) Morder. An indictment charging
murder in the following language, to-
wit : *• The said William White hereto-
fore, to-wit : on the — day of April,
1871, in the Commonwealth and county
aforesaid, did unlawfully, willfully, ma-
liciously, feloniously and of his malice
aforethought, kill and murder his wife,
one Nancy White," is insufficient, in that
it fails to state the acts showing ho^
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nonnce judgment, on conviction, according to the right of the
case.
offense was committed. White v. Com.,
9 Bush 178. Where the indictment
charges that the defendant did ** kill
and murder " it is not necessary to add
that the deceased died within a year
and a day. Jane v. Com., 3 Met. 18;
and see Alford v. Com., 84 Ky. 623. See
Ky. Stat., sec. 1149.
(61) An indictment for a common law
offense (murder) should charge that the
act was done *' feloniously," or "with a
felonious intent." Kaelin v. Com. , 84 Ky.
354. Where the indictment charges that
the defendant shot the deceased, inflicting
wounds from which death resulted, it is
not necessary to aver that the pistol
with which the shooting was done was a
deadly weapon, or that it was at the time
loaded with a leaden ball or other hard
substance. Jeffries v. Com., 84 Ky.
237.
(62) An indictment in which the of-
fense charged is murder is good, al-
though the particular circumstances of
the crime as set out in the indictment
constitute an accessory before the fact
and not a principal. Stricklin v. Com.,
83 Ky. 566.
(63) An indictment charging that
**The said Matt. F. Lightfoot, in the
county aforesaid, did willfully, feloni-
ously and with malice aforethought,
kill and murder Joseph McDermott,
'^ith a pistol, loaded with powder and
leaden ball and other such substance,
which he, the said Lightfoot, then and
there held in his hands," is not aptly
drawn, as it does not appear whether
the accused shot the deceased or beat
him over the head with the pistol, but
there being no demurrer it was held
sufficient after verdict. Lightfoot v.
Com., 80 Ky. 516, and see 11 R. 867.
(64) Nolsaoce. As to indictment for,
see C. R. Co. v. Com., 80 Ky. 137 ; P. &
E. R. R. Co. v. Com., 80 Ky. 147 ; L., C.
& L. R. R. Co. v. C^m., 80 Ky. 143.
(65) Peddling. See Com. v. Smith, 6
Bush 303; Monk v. Com., 6 Bush 397;
Com. v. Dudley, 3 Met. 221 ; and Ky.
8tat., sec. 4215 ; peddlers of patent rights
can not be required to pay a license tax.
Com. V. Petty, 16 R. 188.
(66) Perjory. Ky. Stat., sec. 1173, and
Com. V. Maynard, 91 Ky. 181, holding
that perjury is the willful giving under
oath in a judicial proceeding or in the
course of justice of false testimony ma-
terial to the issue or point of inquiry ;
and indictment must negative by special
averment the matter alleged to have
been sworn and expressly aver that it
was material or state facts so showing,
and also charge that defendant, was
sworn by one authorized to administer
an oath ; and see Com. v. Powell, 2
Met. 10 ; Dowdy v. Com., 13 R. 350; and
see sec. 134 and notes.
(67) Rape. An indictment that fails to
charge that the accused detained the fe-
male, against her will for the purpose, or
with the intent, of having carnal knowl-
edge of her is not good. Wilder v. Com.,
81 Ky. 591 ; and see Blair v. Com., 7 Bush
227; Kessler v. Com., 12 Bush 18; Pens-
ton v. Com., 82 Ky. 549 ; Evans v. Com.,
79 Ky. 414; Bethel v. Com., 80 Ky. 526;
and Ky. Stat., sec. 1152.
(68) As to degrees of rape see notes to
sec. 263; and Fenston v. Com., 82 Ky. 549;
Bethel v. Com., 80 Ky. 526; Young v. Com.,
16 R. 496; unlawfully detaining a woman,
see note 79 and Ky. Stat., sec. 1158.
(69) Receivins illegal vote. See Com. v.
Gray, 2 Duv. 373, and Ky. Stat., sec. 1583.
(70) Robbeiy. An indictment charging
the defendant with having feloniously
taken a mare, the property of William
Rayburn, *' in his presence, and against
his will, by putting him in fear of some
immediate injury to his person" is suffi-
cient. Com. V. Brooks, 1 Duv. 150 ; and
see Ward v. Com., 14 Bush 233 ; Dicker-
son V. Com., 2 Bush 1 ; Taylor v. Com., 3
Bush 508; Lisle v. Com., 82 Ky. 250;
Ky. Stat., sec. 1159 ; larceny is a degree
of the offense. Com. v. Prewitt, 82 Ky.
240 ; as is an assault to rob. See Barnard
V. Com., 94 Ky. 285.
(71) Selling Hqoor. An indictment
against a merchant for selling liquor
without license must state to whom the
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§ 1Z3 [Its] Pom off iadictaeot It may be substantially of the followiDg
form:
The Commonwealth of Kentucky, ^
against > Franklin Circuit Court.
George Smith. j
The grand jury of Franklin county, in the name and by the
sale was made. Wilson v. Com., 14 Bush
159. See Com. v. White, 18 B. M. 492.
An indictment for selling liquor to an in-
ebriate must allege that the defendant
knew the party was an inebriate. Com.
V. Bell, 14 Bush 433 ; Ky. Stat., sec. 1307 ;
and see Com. v. Ewing, 7 Bush 105 ;
Com. V. Davis, 12 Bush 240; Megowan
V. Com., 2 Met. 3 ; and see Ky. Stat.
(72) For selling liquor to a minor. See
Ky. Stat., sec. 1306, and Com. v. Had-
craft, 6 Bush 91.
(73) Statutory offfeoses. Sufficiency of
indictment for, see sec. 136 and notes.
(74) Saaday— for worklaf oa. See r^ui-
sites of petition in penal action to recover
penalty for. Com. v. L. & N. R. R., 80
Ky. 291 ; L. & N. R. R. v. Com., 92 Ky.
114.
(75) Tavera. An indictment against a
tavern-keeper for failing to set up in a
public room a list of rates must allege
when the rates were fixed by the county
court, or that they had been fixed one
month before the offense was commit-
ted. Jackson v. Com., 7 Bush 99.
(76) Time— allegation as to in indict-
ment, see sec. 129 and notes.
(77) Trespass. An indictment proper-
ly describing the offense denounced in
sec. 7, art. 28, chap. 39, Gen. Stat [now
Ky. Stat., sec. 1256], but terming it an
indictment for ** malicious mischief"
instead of "willful trespass," is good.
Com. v. Smith, 6 Bush 263.
(78) An indictment charging that the
defendant "unlawfully and without
felonious intent destroyed, injured and
carried away timber from four trees on
the premises of John W. Wash, which
said property belonged to the said Wash
and was taken without his consent," is
sufficient. Com. v. Powell, 8 Bush 7;
and see Ellis v. Com., 78 Ky. 130.
(79) Ualawfally detaiaias a woaiaa. See
Ky. Stat., sec. 1158 ; and Wilder v. Com.,
81 Ky. 591 ; Gargill v. Com., 12 R. 149 ;
Owens V. Com., 5 R. 174; Higgins v.
Com.. 94 Ky. 54.
(80) Uaaecessaiy partkalarity. Where a
person or thing necessary to be men-
tioned in an indictment is described with
circumstances of greater particularity
than is requisite, yet those circum-
stances must be proved. Clark v. Com.,
16 B. M. 207; but an unnecessary and
immaterial averment will be regarded as
surplusage and it is not necessary to
prove it. Com. v. Jarboe, 89 Ky. 143.
(81) Usarpatioa. For requisites of an
indictment for usurping the office of
judge of an election, see Way man v.
Com., 14 Bush 466. Usurpation of an
officer, see Ky. Stat., sec. 1364; Wayman
V. Com., 14 Bush 446; Com. v. Adams, 3
Met- 6 ; Com. v. Jones, 10 Bush 735.
(82) Warehoase. For requisites of in-
dictment under the act in relation to
warehousemen, approved March 6, 1869,
Ky. Stat., sec. 4768; see Com. v. Mason,
82 Ky. 256.
(83) Weapoa. Under an indictment
charging that defendant carried ** con-
cealed deadly weapons, to-wit, a bowie-
knife, and also a dirk or dagger," proof
that he carried either will authorize a
conviction. Com. v. Howard, 3 Mi
407 ; Ky.Stat., sec. 1309.
(84) Wlllfal IdlUag. Under sec. 1151, Ky.
Stat., see Conner v. Com., 13 Bush 714.
(8.5) Woaadias. Indictment under Ky.
Stat., sec. 1166, need not charge that act
was done feloniously. Cundiff v. Com.,
86 Ky. 196; and Burns v. Com.. 3 Met.
13 ; Flint v. Com., 81 Ky. 186 ; as to
wounding in sudden heat and passion, as
described in sec. 1242, Ky. Stat., see
Com. v Hawkins, 11 Bush — ; Sosh v.
Com., 4 R. 254 ; Com. v. Duncan. 91 Ky.
592.
§ 123. (1) Pom. It is not necessary
now that an indictment founded on a
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authority of the Commonwealth of Kentucky, accuse George Smith
of the crime of [here give the name of the offense, if it have one,
such as treason, murder, manslaughter, arson, larceny, rape, etc., or
the like, or, if it have no general name, then a brief general descrip-
tion as given by law], committed as follows, viz.: The said George
Smith, on the day of , 1858, in the county aforesaid [here
insert the acts constituting the offense], against the peace and dig-
nity of the Commonwealth of Kentucky. (See other formSy pages
668-670.)
§ 124 [iss] Pacts cooceroiog which it most be direct and certaio. The indict-
ment must be direct and certain as regards —
1. The party charged.
2. The offense charged.
3. The county in which the offense was committed.
4. The particular circumstances of the offense charged, if they be
necessary to constitute a complete offense.
statute should conclude ''against the
form of the statute." Com. v. Kennedy,
15 B. M. 531.
(2) It is not necessary that the style of
the court, or the case, or the formal part
of the indictment shall be repeated in
each count when there is more than one
count. Greenwood v. Com., 11 R. 320.
(3) Captiofl of indictment, omitting name
of county, does not render indictment
bad. Johnson v. Com., 12 R. 835.
§ 124. (1) Certainty in statins offense.
A conviction for stealing Philip Daniel's
hog can not be sustained under an in-
dictment for stealing Stephen Daniel's
hog. Hensley v. Com., 1 Bush 11. An
indictment for murder described the per-
son murdered as '* Barbara Kriel." The
proof disclosed her name to be ** Marga-
ret Kriel." The variance was held not
material. Kriel v. Com., 5 Bush 862;
see sec. 125.
(2) On the trial of an indictment for
stealing the horse of A evidence that the
horse stolen belonged to B does not war-
rant a conviction, unless the oflfense be
sufficiently described in other respects to
identify the property and the act. Mc-
Bride v. Com., 13 Bush 337 ; sec. 128.
(3) In a trial for bigamy it appeared
that first wife was sometimes called Mag
Sharp (her real name) and sometimes
Mag White, while the indictment
charged her name as Mag White ; held
not a fatal variance. Robinson v. Com.,
88 Ky. 386.
(4) It is essential that the indictment
shall state correctly the county in which
the offense is committed. When a
change of venue is obtained and a new
indictment found in the county to which
the venue is taken, it should state cor-
rectly the county in which oflfense was
committed. Parker v. Com., 12 Bush
191. An indictment charging that oflfense
was committed •* in the county and cir-
cuit aforesaid" was held sufficient, al-
though county was not named. Arm-
strong V. Com., 16 R. 494.
(5) The omission of the word ** weap-
on" in an indictment charging defendant
with the oflfense of ** carrying concealed
a dpadly " does not vitiate indict-
ment, as the language unmistakably in-
dicates the omitted word, and enables
the court to supply it with absolute cer-
tainty. Com. V. Bary, 1 R. 281.
(6) *'It is essential that an indictment
contain a statement of the acts constitut-
ing the oflfense in ordinary and concise
language, and in such a manner as to en-
able a person of common understanding
to know what is intended." An indict-
ment charging murder in the following
words is insufficient : ** The said William
White heretofore, to- wit, on the — day
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FORM AND REQUISITES OF AN INDICTMENT.
[title VI
125 [is«i Error io oane of defeodaat nay be corrected. An error as to the
name of the defendant shall not vitiate the indictment, nor proceed-
ings thereon, and if his true name be discovered at any time before
execution, an entry shall be made on the record of the court of bis
true name, referring to the fact of his being indicted by the name
mentioned in the indictment, and the subsequent proceedings shall
be in the true name, substantially as follows :
The Commonwealth of Kentucky
against
A B, indicted by the name
§ 126 [1S6] indictment to charge iNit one offense— exception. An indictment,
except in the cases mentioned in the next section, must charge but
ucky I
of C D.j
of April, 1871, in the Commonwealth and
county aforesaid did unlawfully, willful-
ly, maliciously, feloniously and of his
malice aforethought kill and murder his
■wife, one Nancy White, against the
X>eace and dignity of the Commonwealth
of Kentucky," in that it fails to contain
A statement of the acts constituting the
offense. White v. Com., 9 Bush 178;
iind see Com. v. Perrigo, 3 Met. 5 ; Jane
V. Com., 3 Met. 18 ; Jefferies v. Com., 84
Ky. 237; Mulligan v. Com., 84 Ky. 229;
Connor v. Com., 13 Bush 714; Com. v.
Riley, 14 Bush 44 ; Furnish v. Com., 14
Bush 180; Tully v. Com., 11 Bush 154;
Alford V. Com., 84 Ky. 623.
(7) Under an indictment charging that
the defendant carried *' concealed dead-
ly weapons, to-wit, a bowie knife and
also a dirk or dagger," he could be con-
victed on proof that he carried either.
Com. V. Howard, 3 Met. 407.
(8) Indictment charging A with the
offense '*of cutting John Reffit with in-
tent to kill him," committed in manner as
follows : **Thesaid Adid unlawfully, will-
fully and feloniously cut, thrust and stab
John Reffit with a knife, from which cut-
ting and stabbing said Reffit did not die,"
is sufficient. Shouse v. Com., 95 Ky. 021.
(9) Under a statute providing that if
a person '* sell to any person in any quan-
tity whisky, brandy, or other spirituous
liquor" an indictment charging **that
Charles White on the 1st day of July,
1857, in the county aforesaid, did unlaw
fully sell whisky, brandj' and other
spirituous liquors" was held insufficient
in not being specific enough. Com. v.
White, 18 B. M. 492.
(10) Statutory offeasei — Ifldktneit for.
**It is well settled that where provisos
and exceptions are contained in distinct
clauses (of a statute) it is.not necessary to
aver in the indictment that the defend-
ant does not come within the exceptions,
or to negative the provisos it contains."
Com. V. McClanahan, 2 Met. 8; and see
further, sec. 136 and notes.
(11) SarplHsase— onnecessary partic-
■larity. Where an indictment contains a
particular description of the acts consti-
tuting the offense, describing them with
more minuteness than is necessary, the
offense in its character and terms must
be proved as alleged in the indictment.
Com. V. Magowan. 1 Met. 368 ; Clark v.
Com., 16 B. M. 206.
(12) The fact that an indictment for
manslaughter charges that offense was
committed maliciously does not render
it bad, as the word ** maliciousl}' " will
be regarded as surplusage. Coe v. Com.,
94 Ky. 606 ; and see further. Com. v. Jar-
boe, 89 Ky. 143 ; 88 Ky. 368.
§ 125. Name. The omission to set out
the first or Christian name of the de-
fendant will not vitiate the indictment.
Com. V. Kelcher, 3 Met. 485 ; nor is it
fatal variance where indictment for
bipramy stated first wife's name as Mag
White, while her real name was Mag
Sharp, as she went by both names.
Robinson v. Com., 88 Ky. 386.
§ 126. (1 ) Misloioderof offoosei-what it
not. An indictment for murder con-
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FORM AND REQUISITES OF AN INDICTMENT.
441
one offense, but, if it may have been committed in different modes
and by different means, the indictment may allege the modes and
means in the alternative. (Jurisdiction of all degrees of offense included^
sec. 14; degrees of offense defined^ sec. 263.)
§ 127 [is«] Joinder of offenses in indictment. The offenses named in each
of the subdivisions of this section may be charged in one indict-
ment :
tained three paragraphs, "the first of
which charges that the murder was com-
mitted by all five of the accused Jointly ;
the second charges that Hunter com-
mitted the murder and that the other
defendants did with malice aforethought
counsel, advise and persuade the said
Hunter to kill and murder the deceased ;
and in the third paragraph or count it
is charged that the appellant (Thomp-
son) committed the murder, and that
the other defendants in like manner
counseled and advised the commission
of the offense." Held that there was
no misjoinder of offenses, that but one
offense was charged, although alleged
to have been committed in different
modes. Thompson v. Com., 1 Met. 13.
(2) An indictment charging that
defendant did "unlawfully set-up, ex-
hibit and keep for himself and another
a faro bank," charges but one offense.
Vowels V. Com., 84 Ky. 53.
(3) An indictment charging the tak-
ing at the same time and by the same
act of one silver dollar, and a warrant
of arrest issued against the accused and
properly in the hands of the person
robbed for execution as an officer, does
not allege two offenses. Lisle v. Com.,
82 Ky. 250.
(4) An indictment may charge that
three persons did the shooting, and in
separate counts charge that each one of
them did the shooting, and in other
counts that each aided and abetted the
other. Angel v. Com., 14 R. 10.
(5) An indictment for "breaking a
storehouse with intent to steal and steal-
ing articles therefrom" charges but one
offense, although it alleges both a break-
ing with intent to steal and an actual
stealing. Parris v. Com., 90 Ky. 637.
(6) If several articles, each belonging
to different persons be stolen at same
time, only one offense has been commit-
ted. Nichols V. Com., 78 Ky. 180; and
80 if the several articles are owned by the
same person, 1 Bush 211.
(7) Two or more persons indicted as
the actual perpetrators of a crime may be
convicted as principals, although some
of them are only aiders or abettors, or
the aider and abettor may be indicted
alone, but in such case the indictment
should set out the acts of the principal
actor. Mulligan v. Com., 84 Ky. 229.
(8) When two or more persons are
jointly indicted for murder, one as prin-
cipal and the others as aiders and abet-
tors, the one charged as principal may
be found guilty of aiding and abetting,
and the ones charged with aiding and
abetting be found guilty as principals.
Benge v. Com., 92 Ky. 1.
(9) An indictment against A and B,
which in one count charges both of them
with a felony, and in another count
charges A as principal and B as an
aider and abettor, and in the third count
charges B as principal and A as aider
and abettor, is good, and one of them
may be found guilty of a felony and the
other of a misdemeanor. Cupp v. Com.,
87 Ky. 35. See further, Ky. Stat., sees.
1128, 1129.
(10) An indictment charging that de-
fendant destroyed, injured and carried
away timber from four trees, the prop-
erty of another, charges but one offense.
Com. V. Powell, 8 Bush 7 ; Com. v.
Searls, 3 R, 394.
(11) Mis)oinder— what is. Indictment
charging offense embraced by sec. 1256,
Ky. Stat., and also particular acts relat-
ing exclusively to sec. 1257, is bad because
charging more than one offense. Ellis v.
Com., 78 Ky. 130 ; and see Com. v. Smith,
6 Bush 263.
§ 127. (1) Mitjoiflder— practice. See In-
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442
FORM AND REQUISITES OF AN INDICTMENT.
[title VI
1. Larceny and knowingly receiving stolen property.
2. Larceny and obtaining money or property on false pretenses.
3. Larceny and embezzlement.
4. Robbery and burglary.
5. Robbery and an assault with intent to rob.
6. Passing or attempting to pass counterfeit money or United
States currency or bank notes, knowing them to be such, and
having in possession counterfeit money or United States currency
or bank notes, knowing them to be such, with the intention of
circulating the same. {One offense may be dismissed^ if misjoinder y
sec. 168.)
§ 128 [liT] Statement as to person injured, or owner of property. If an offense
involve the commission of, or an attempt to commit, an injury to
person or property, or the taking of property, and be described in
other respects with sufficient certainty to identify the act, an erro-
neous allegation as to the person injured or attempted to be injured,
or as to the owner of the property taken or injured or attempted to
be injured, is not material.
§ 129 [ISO] Time offense committed — statement as to. The statement in the
indictment, as to the time at which the offense was committed, is
dlctment charging two offenses under
sees. 1256, 1257, Ky. Stat.; Ellis v. Com.,
78 Ky. 130 ; and see further, Com. v.
Powell, 8 Bush 7 ; Com. v. Searls, 3 R.
394 ; and see as to practice where there is
a misjoinder, sees. 105, 108.
(2) Offenses tliat may be |olaed. Grand
larceny and receiving stolen goods may
be joined. Upton v. Com., 14 R. 105.
§ 12S. (1) Statement as to persoa iajored
or owner of property. Under an indict-
ment for stealing the horse of W. F. Wat-
son, the defendant can not be convicted
if the proof is that he stole the horse of
Cassan Watson. "In a case 'like this,
where there is a variance in the proof
and the averment as to ownership, it
must prove fatal to the prosecution un-
less the offense be sufficientlj' described
in other respects with such certainty as
to identify the act ; and if in the present
case the horse had been minutely de-
scribed, so as to have identified it whether
it belonged to A or B, as the horse al-
leged to have been stolen, the fact that
the name of the owner had been improj)-
erly stated would have been regarded as
immaterial." McBride v. Com., 13 Bush
337.
(2) In an indictment for housebreak-
ing it is not necessary to describe the
owner of the house broken or the prop-
erty taken with any more precision or cer-
tainty than is necessary to inform the
accused of the nature of the accusation
against him and to bar a second convic-
tion. Johnson v. .Com., 87 Ky. 189.
(3) In an indictment for burglary a de-
scription of the house entered will be
sufficient ; that will bar another prosecu-
tion for the same offense. Olive v. Com-,
5 Bush 370.
(4) Under an indictment for obtaining
money under false pretenses it is not ma-
terial whether the money obtained be-
longed to the person alleged in the in-
dictment. Hennessy v. Com., 88 Ky. 301.
§ 129. (1) Time — statemeot as to. An
indictment found at the May term, 1805,
which charges that the offense was com-
mitted on the — day of July, 1805, and
afterward in describing the offense in the
indictment it is in express terms charged
to have been committed before the find-
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not material further than as a statement that it was committed before
the tiifie of finding the indictment, unless the time be a material
ingredient in the offense.
§ 130 [isi] Presnmptioiis of law — ^judicial notice. Neither presumptions of
law, nor matters of which judicial notice is taken, need be stated in
an indictment.
§ Ul [iss] Jodgmeiit how pleaded — ^Inrisdictional facts. In pleading a judg-
ment or other determination of, or proceeding before, a court or
officer of special jurisdiction, it is not necessary to state the facts
constituting jurisdiction ; but the judgment or determination may be
stated as given or made, or the proceedings had. The facts constitu-
ting jurisdiction must, however, be established on the trial.
§ 132 [1S4J Libel — allegations of indictment for. An indictment for libel
need not set forth any extrinsic facts, for the purpose of showing the
application, to the party libeled, of the defamatory matter ; but it is
sufficient to state generally that the same was published concerning
him. {As to jurisdiction, see sec. ^1.)
ing of the indictment, is good. Jones v.
Com.. 1 Bush 34.
(2) In a prosecution for nuisance the
CJommonwealth was not confined to the
day alleged in the indictment, but had
the right to prove the commission of the
oflfense on any day within twelve months
before the finding of the indictment. C.
R. Co. V. Com., 80 Ky. 137.
(3) The court is authorized on de-
murrer to assume that the offense was
committed at the time charged in the
indictment, although the Commonwealth
on the trial would not be confined to the
time alleged. Com. v. Cain, 14 Bush 525.
(4) An indictment which charges that
the offense was committed on the same
day the indictment is filed in court will
be good if the indictment charge that
the offense was committed before the time
of finding the indictment. Com. v.
Miller, 79 Ky. 451.
(5) Averment that offense was com-
mitted on the — day of July, 1883, im-
ports the commission of it anterior to
the 24th of the same month, when in-
dictment was filed. Vowels v. Com., 84
Ky. 53.
(6) In a prosecution for false swearing
the date of the commission of the of-
fense is noj; material, and a variance be-
tween date charged and record of pro-
ceeding in which false oath was taken
does not render record incompetent.
Com. V. Davis, 94 Ky. 612; Richey v.
Com., 81 Ky. 525.
(7) Where the defendant is indicted
for different offenses of the same char-
acter committed within a year, the Com-
monwealth may in one trial confine itself
to one act, and it will not be a bar ta
other trials. 88 Ky. 368 ; see note 28 to
sec. 176.
(8) An indictment for bigamy charged
that on the — day of September, 1891,
the accused married, having then a wife,
to whom he was married on September
19, 1891; the court hold that the date
was not material, and that figures 1S91
were used by mistake in place of 1881.
Faustre v. Com., 92 Ky. 34.
(9) An indictment for house-breaking,
found on December 28, 1891, alleged that
offense was committed on December 29,
1891, and contained no specific averment
that offense was committed prior to find-
ing of indictment ; held good. Williams
V. Com., 13 R. 893.
(10) An indictment for perjury stated
that offense was committed October 1,
1892; the evidence showed that trial
when accused swore falsely occurred
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444 FORM AND REQUISITES OP AN INDICTMENT. [tITLB VI
§ 133 [iss] Written instnuneiit — description off. K a written instrument,
which is the subject of an indictment for forgery, larceny or other
oftense, have been withheld or destroyed by the act or procurement
of the defendant, and such destruction or withholding be alleged in
the indictment, and proved on the trial, a misdescription of the instru-
ment is immaterial.
§ 134 [lu: Perlury or subomatioo off — necessary allefatioiis. In an indict-
ment for perjury, or subornation of perjury, it is sufficient to set forth
the substance of the controversy or matter in respect to which the
offense was committed, and in what court and before whom the oath
alleged to be false was taken, and that the court, or the person before
whom it was taken, had authority to administer it, with proper alle-
gations of the falsity of the matter on which the perjury is assigned;
but the indictment need not set forth the pleadings, record or pro-
ceedings with which the oath is connected, nor the commission or
authority of the court or person before whom the perjury was com-
mitted.
§ 135. Larceny or embezzlement off money — sufffficiency off indictment. In an
indictment for the larceny or embezzlement of money, or United
States currency, or bank notes, it is sufficient to allege the larceny or
embezzlement of the same without specifying the coin, number,
denomination or kind thereof.
§ 136 [187] Words off statute deffininji; offffense need not be strictly pursued. The
words used in a statute to define aii offense need not be strictly
September 19, 1892, the variance was was sworn in the usual form, the addi-
held immaterial. Com. v. Davis, 15 R. tional averment that he took his **cor-
362. poral oath " was mere surplusage. Com.
(11) Two indictments for same offense v. Jarboe, 89 Ky. 143.
committed at different times. See as to (4) Definition of perjury. Com. v.
when proof in one case is and is not a bar Powell, 2 Met. 10 ; Com. v. Maynard, 91
to prosecution of other indictment. C. Ky. 131.
& O. R. R. V. Com., 88 Ky. 368. § 135. Urceay—safficieacy of description.
(12) An indictment for murder failed An indictment charging that James M.
to state when killing took place, but as Mann did *' feloniously take, steal and
there was no demurrer filed to it the carry away from the possession of Penn
court would not consider the objection and Floyd money, currency of the realm,
made. Lightfoot v. Com., 80 Ky. 516. to the amount of over ten dollars" suffi-
§ 134. (1) PerJHry. See Ky. Stat., sec. ciently describes the money. Com. v.
1173 and notes ; and note 66 to sec. 122 of Mann, 12 R. 477 ; and see Jones v. Com.,
Code. 13 Bush 356; Ky. Stat., sec. 1194; and
(2) A conviction for perjury or false notes 53-56, sec. 122.
swearing maybe had upon documentary § 136. (1) Statute — indictmeot aniler.
or written evidence alone without a liv- '* Where the words of the statute arede-
ing witness. Com. v. Davis, 92 Ky. 460. scriptive of the offense, the indictment
(3) Facts being averred in an indict- will be sufficient if it shall follow the
ment for perjury showing that defendant language and expressly charge the de-
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445
pursued in an indictment, but other words conveying the same
meaning may be used.
§ 1J7 [1S8] Coostmctioo of words used io indictment The words used in an
indictment must be construed according to their usual acceptation in
common language, except words and phrases defined by law; which
are to be construed according to their legal meaning.
scribed offense of the defendant. Bi;t
this rule applies only to offenses which
are complete in themselves, when the
acts set out in the statute have been
done or performed." Davis v. Com., 13
Bush 318; Ward v. Com., 14 Bush 233;
Mitchell V. Com., 88 Ky. 349.
(2) An indictment under the '*kuklux
law" will be sufficient if it charges the
offense in the words of the statute.
Sellers v. Com., 13 Bush 331 ; Buchanan
V. Com., 95 Ky. 334; Ky. Stat., 1223.
(3) ** Where the words of the statute
are descriptive of the offense, the indict-
ment should follow the language and
expressly charge the described offense
on the defendant, or it will be defective."
Com. V. Tanner, 5 Bush 316; Com. v.
Turner, 8 Bush 1 ; Conner v. Com., 13
Bush 714.
(4) ** When a statute contains provisos
or exceptions in distinct clauses, it. is
not necessary to state in the indictment
that the defendant does not come with-
in the exceptions or to negative the
provisos it contains. Com. v. Bull, 13
Bush 656; Com. v. Bierman, 13 Bush
345; but *' if the statute creating an,
offense contains in its enacting clause
exceptions it is necessary' to negative
such exceptions in the indictment so as
to show that the defendant does not
come within any of them." Conner v.
Com., 13 Bush 714.
(5) Under the statute providing that
it should be an offense to carry con-
cealed deadly weapons except by certain
persons who were specified it was not
necessary to state that the defendant did
not come within any of the exceptions.
Com. V. McClanahan, 2 Met. 8.
(6) ** If a statute refers to a common
law offense by its popular name, as, for
instance, * robbery,* and proceeds to im-
pose a penalty for its commission, it is
not sufficient to charge the accused with
its commission in the statutory terms
alone ; in such cases the pleader must
define the offense by stating the common
law elements necessary to its commis-
sion." Mitchell V. Com., 88 Ky. 349.
(7) An indictment for an offense cre-
ated by statute need not charge that the
acts complained of were done ** feloni-
ously" unless the statute requires that
the act should be done feloniously in or-
der to constitute the offense. Higgins v.
Com., 94 Ky. 54 ; Cundiff v. Com., 86 Ky.
196.
(8) An indictment for the violatidn of
a penal statute need not indicate the
statute upon which it is founded ; it is
sufficient to bring the case within the
provisions of the statute. Powers v.
Com.,90Ky. 167.
(9) If the statute declares, as in rape,
that it shall be an offense if the act is
** unlawfully" done, it need not be
charged that accused acted maliciously,
willfully or feloniously ; if he be charged
in the language of the statute creating
the crime and in the manner required by
it, then the charge is complete." Hig-
gins V. Com., 94 Ky. 54.
(10) An indictment under sec. 2, art. 6,
chap. 29, Gen. Stat, [now sec. 1166, Ky.
Stat.], is good, although it fails to charge
that the person wounded ** did not die
thereby " and fails to allege that the pis-
tol was '* loaded with a leaden bullet or
other hard substance." Burns v. Com.,
3 Met. 14.
(11) An indictment charging that '* the
defendant did unlawfully, feloniously
and maliciously, with intent to kill him,
cut and wound one Philip Yeiser." is suf-
ficient under sec. 2, art. 6, chap. 29,
Gen. Stat, [now sec. 1166, Ky. Stat.].
Flint V. Com., 81 Ky. 186 ; 16 R. 465.
(12) Aider and .abettor in statutory
crime may be punished unless it clearly
appear that its provisions were only in-
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446 PROCESS UPON AN INDICTMENT. [TITLE VI
CHAPTER in.
PROCESS UPON AN INDICTMENT.
§ 138. Writs for arrest or summons.
§ 139. Process of arrest bench warrant.
§ 140. Clerk to issue bench warrant when ordered.
§ 141. Court to order process when indictment found.
§ 142. Form of bench warrant.
§ 143. Indorsement as to bail.
§ 144. Officer other than sheriff arresting — how to proceed.
§ 145. Indictment for unbailable offense — proceedings.
§ 146. Summons on indictment — form.
§ 147. Issual and service of summons.
§ 148. Summons in misdemeanor cases only.
§ 149. Bench warrant — when may be issued.
§ 138 [189] Process oo iodictment, writ of arrest or sommons. The process on
an indictment consists of the writs for arresting or summoning the
defendant to appear and answer the indictment.
§ 139 [141] Process of arrest bench warrant The process of arrest on an
indictment shall be a bench warrant. {Fornij sec. 14^, and pageSBi)
§ 140 [i«o] Clerk to issue bench warrant when ordered. A bench warrant
shall be issued by the clerk, upon the order of the court, and may be
re-issued from time to time by order of the attorney for the
Commonwealth.
§ 141 [141] Court to order process on finding of indictment Upon an indict-
ment being found, if the defendant be not in custody, nor on bail,
the court shall forthwith make an order for process to be issued
thereon, designating whether it shall be for arresting or summoning
the defendant; and if for arresting the defendant, and the offense
charged be bailable, the sum in which he may be admitted to bail
shall be fixed. If he be on bail the court may order a bench warrant
to issue, or commit him to custody, and fix the amount of bail to be
given by him. {Forms of orders^ page 671)
tended to apply to party actually com- § 140. Process— coart niiist order. The
mitting crime. Com. v. Carter, 94 Ky. 527, clerk has no authority to issue process
overruling Stamper v. Com., 7 Bush 612. for the arrest of a person who has been
(13) Although an offense is not charged indicted without an order directing it
in the precise words used in the statute to issue, and process issued by the clerk
in defining it, if it is alleged in words without order confers no authority upon
conveying the same meaning it will be the sheriff to arrest the defendant, or
sufficient. Taylor v. Com., 3 Bush 508; take bail. Shaw v. Com., 1 Duv. 1.
Moore v. Com., 92 Ky. 630.
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§ 142 [i4»] Bench wtrrant — ^form of. A bench warrant may be substan-
tially of the following form :
Franklin Circuit Court.
The Commonwealth of Kentucky, to any sheriff, coroner, jailer,
constable, marshal or policeman in this State : You are hereby
commanded forthwith to arrest A B, and bring him before the
Franklin Circuit Court to answer to an indictment found in that
court against him for felony [or misdemeanor, as the case may be],
or, if the court be adjourned for the term, that you deliver him to
the custody of the jailer of Franklin county. Given under my
hand, this day of , 1853.
P. SwiGERT, Clerk F. C. C,
§ 143 [144] Indorsement as to bail. If the offense be bailable, an indorse-
ment shall be made on the bench warrant substantially as follows:
" The defendant is to be admitted to bail in the sum of dol-
lars, and if he desire to give bail, it may be taken by a sheriff of
the county in which he is arrested, or the sheriff of Franklin
county." {Bail may be sworriy qualifications of^ sees, 76, 77 ; what
peace officers may take bail, sec. 84-)
§ 144 [i4»3 Officer other than sheriff arresting — how to proceed. If the bench
warrant be executed by any other officer than a sheriff, such officer,
at the defendant's request, shall take him before a sheriff of the
county in which he is arrested, or of the county in which the indict-
ment was found, for the purpose of giving bail.
§ 145 «•] Indictment for unbailable offense — how to proceed. If the defend-
ant be on bail, and the indictment be for an offense not bailable, and
he appear in pursuance of the bail bond, he shall be forthwith com-
mitted to jail ; and if he do not appear, on being required by the
court, the bail bond shall be forfeited, and a bench warrant issued for
his arrest.
§ 14^ [14T] Summons on indictment — form of. The summons on an indict-
jajent may be substantially of the following form :
Franklin Circuit Court.
The Commonwealth of Kentucky, to any sheriff*, coroner, jailer,
constable, marshal or policeman in this State: You are hereby
commanded to summon A B to appear in the Franklin Circuit
Court, on the first day of its next June term, to answer an indict-
ment for misdemeanor found against him in that court. Given
under my hand, this of , 1853.
P. SwiGERT, aerk F. C. C.
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448 PRODUCTION OF EVIDENCE. [tITLE VI
§ 147 [148] Issnal and service of somfflons. The summons shall be issued
and served in the same manner as a summons in civil actions. {Pro-
visions of Civil Code concerning^ sees, Jfi to 66.)
§ 148 [!«•] Summons io misdemeanor cases only. The summons shall only
be issued on indictments for misdemeanor, if the court have not
ordered a bench warrant to issue, and may be issued without any
order by the court.
§ 149 [iBoj Bench warrant — ^when maybe issued. The court may, at ita dis-
cretion, order a bench warrant to be issued on any indictment; but
if the punishment be limited to a fine of one hundred dollars or less,
a bench warrant shall not be issued, unless the court be satisfied that
there is reason to believe the defendant will escape punishment if a
bench warrant be not issued.
CHAPTER IV.
PRODUCTION OF EVIDENCE.
§ 150. Subpoenas to be issued on request.
§ 151. Witnesses' attendance — how secured.
§ 152. Subpoena duces tecum may be issued.
§ 153. Depositions for defendant — when and how taken.
§ 150 [161] Subpcenas to be issued oo request. The clerk of the court, upon
the request of the Commonwealth's Attorney, or of the defendant, or
his attorney, shall issue subpoenas for witnesses. {Form o/", page 666.)
§151 [isajWitflesses'atteodauce — how secured. The provisions of the Code
of Practice in civil actions shall apply to and govern the summoning
and coercing the attendance of witnesses, and compelling them to
testify in all prosecutions, criminal or penal actions or proceedings,
except that the attendance of witnesses residing in any part of the
State may be coerced, and it shall never be necessary to tender to the
witnesses any compensation for expenses, or otherwise, before proc-
ess of contempt shall issue. {Provisions of Civil Code referred to^ sees.
63'2 to 54^; form of warrant of arrest for icitnesSy page 666 ; non-resident
witness for 'Commonwealth, fees of Ky. Stat., sec. 368; fees generallt/y
Ky. Stat., sec. 367 ; special bailiff to hummon witness, Ky. Stat., sec.
114^.)
§ 152 [15S] Subpceoa duces tecum may be issued. The court on motion of
either party may, by its order and process, compel the production of
any written document, or of any other thing which may be necessary
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TITLE Vl] PRODUCTION OF EVIDENCE. 449
or proper to be produced or exhibited as evidence on the trial, and
may punish a disobedience of its orders or process, as in cases of wit-
nesses refusing to testify. {Form of subpoena duces tecum j page 666.)
§ 153 ii»4] Depositions for defendant, wlien and liow talten. K it appear by
affidavit that a material witness is about to leave this State without
the procurement or consent of the defendant, or is physically unable to
attend for examination in court; or that his death is apprehended;
" or that he is a non-resident of this State, and beyond the reach of
the process of the court," the court or the judge, " or any circuit
judge" in vacation, may authorize the defendant to take his deposi-
tion. The court or judge shall, by written order, prescribe the manner
of taking the deposition, whether by written interrogatories, or upon
notice to the attorney for the Commonwealth ; and such deposition
shall only be used if the witness be dead or is absent from the State,
or physically unable to attend for examination in court at the time
of trial. The deposition may be taken by any officer who is author-
ized to take depositions by the Civil Code: Provided, That the
deposition of a non-resident shall only be taken upon interrogatories
to be filed with the clerk of the court in which the trial is pending,,
and under the same rules that are prescribed in the Civil Code for
taking depositions in civil cases ; and notice of the filing of the inter-
rogatories shall at once be given to the attorney for the Common-
wealth, who may file cross-interrogatories within ten days after the
notice of the filing of the interrogatories shall have been. given him;
and thereupon it shall be the duty of the clerk to issue commissions,
with the copies of the interrogatories and cross-interrogatories, if any,
annexed in the same manner and to the same persons as is prescribed
by section five hundred and seventy-seven of the Civil Code, and said
deposition shall be taken in all respects as is prescribed by the Civil
Code in taking depositions in civil cases. {Sec. as amended by act of
1893.)
§ 153. (1) Depositions can not be used (2) The accused may waive the pres-
by the defendant in any state of case not ence of his own witnesses and allow a
provided for by statute. Kaelin v. Com., statement as embodied in an affidavit
84 K}'. 355 ; nor can the State take depo- to be read as evidence, and he will be
sitions and read them against the ac- bound by his consent to this course.*
cused because he is entitled to be con- Taylor v. Com., 9 R. 316; Nichols v.
fronted with the witnesses against him. Com., 11 Bush 575 ; and see further, as
84 Ky. 355. ' to continuance, sec. 189 and notes.
(29)
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450 ARRAIGNMENT AND PLBADINOB BY THE DEFENDANT. [TITLE VI
CHAPTER V.
ARRAIGNMENT AND PLEADINGS BY THE DEFENDANT.*
§ 154. Arraignment defined.
§ 155. Arraignment may be dispensed with.
§ 156. Trial of sanity of accused — proceedings if insane.
§ 157. Plea or motion by defendant when arraigned.
§ 158. Grounds for setting aside indictment.
§ 159. Proceedings when indictment set aside.
§ 160. Defendant discharged unless new one found.
§ 161. Motion overruled, defendant must plead.
§ 162. Pleadings allowed.
§ 163. Pleading may be oral, but entry made of.
§ 164. Form of entry of demurrer or plea.
§ 165. Demurrer when proper.
§ 166. Demurrer for want of jurisdiction — proceedings.
8 167. Want of jurisdiction appearing on trial — proceedings.
§ 168. Misjoinder of offenses— dismissal of one.
§ 169. Judgment on demurrer when final.
§ 170. Practice if demurrer sustained on certain grounds.
§ 171. Demurrer overruled, defendant may plead.
§ 172. Pleas that may be entered.
§ 173. Plea of guilty must be by defendant in person.
§ 174. Plea of guilty may be withdrawn before judgment.
§ 175. Efl'ect of plea of not guilty.
§ 176. Acquittal on verdict, or conviction, a bar.
§ 177. Acquittal or conviction bars all degrees of offense.
g 178. Dismissal that does not operate as a bar.
§ 179. Written pleadings not necessary— practice.
§ 154 [iB»] Arraigomeot defioed. An arraignment is the reading of the
indictment by the clerk, to the defendant, and asking him if he pleads
* Conseot of deffeBdaat— waiver af errar meanor may consent to be tried by a less
by. In Com. v. Adam's, 92 Ky. 134, the number than the regular jury ; and in
court held that the consent of the ac- Taylor v. Com., 9 R. 316, the accused
cused that the judge might change the who consented that an affidavit of his
charge in the indictment did not bind witness should be read as evidence in
him; in Kennedy v. Com., 78 Ky. 447, his behalf was held bound by it ; and the
an agreement of the accused as to a consent of accused that jury may be
special judge was held binding upon discharged estops him from pleading
him, the court holding that there was former jeopardy. Robinson v. Com., 88
** a broad distinction between an admis- Ky. 386; consent that a change of venue
sionof a fact necessary to put the machin- may be had is binding. Lightfoot v.
ery of the law in motion to the end that a Com., 80 Ky. 516.
trial mightbe had and the consent of one §154. (1) Arraifomeot Does the de-
charged with felony to be tried by less fendant's silence or failure to plead
than twelve jurors or that one not legally amount to a confession of guilt? The
qualified sl^ould preside as judge. In court suggests that where the defendant
Murphy v. Com., 1 Met. 365, it was held refuses to file any plea, the safer rule is
that a defendant on trial for a misde- to have the plea of not guilty entered
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TITLB Vl] ARRAIGNMENT AND PLEADINGS BY THE DEFENDANT.
451
guilty, or not guilty, to the indictment. {Reading indictment and
stating plea, sec. 219,)
§ 155 [106] Arriifimeiit nay be dispensed with. The arraignment shall
only be made on indictments for felony, and may be dispensed with
by the court, with the defendant's consent.
§ 156 [18T] Trial of sanity of defendant — proceedings if insane. If the court
shall be of opinion that there are reasonable grounds to believe that
the defendant is insane, all proceedings in the trial shall be postponed
until a jury be impaneled to inquire whether the defendant is of
unsound mind, and if the jury find that he is of unsound mind, the
court shall direct that he be kept in prison or conveyed by the sheriff
to the nearest lunatic asylum, and there kept in custody by the
officers thereof until he be restored, when he shall be returned to the
sheriff on demand, to be reconveyed by him to the jail of the county.
( Verdict and proceedings on plea of insanity^ sec, 268.)
§ 157 [IBS] Plea or motion by defendant when arral^ed. Upon the arraign-
ment, or upon the call of the indictment for trial, if there be no
and counsel assigned. Triplett v. Com.,
84 Ky. 193.
(2) Where the bill of exceptions shows
that an arraignment was waived, and
that the defendant pleaded not guilty,
the objection that there was no arraign-
ment supported b}^ the defendant's affi-
davit can not avail, as the record is
conclusive of that fact and prevents any
inquiry into its correctness. Farris v.
Com., 14 Bush 362.
(3) The court in a felony case may de-
fer calling on the defendant to plead to
the indictment until the jury is selected,
and then after his plea is entered the
jury may be sworn. Disney v. Com., 9
R. 413 ; and see sec. 217.
(4) Where the trial has commenced
by the examination of a witness and it
is then discovered that defendant has
not been arraigned or entered any plea
the court may, upon the refusal of the
accused to then enter his plea or con-
sent that the jury may be discharged,
discharge on its own motion the jury,
arraign the defendant, reswear the jury
and proceed with the trial. Disney v.
Com., 9 R. 413 ; Minor v. Com., 5 R. 176;
and see Galloway v. Com., 5 R. 213.
(5) The requirement that the in-
dictment shall be read and the plea of
defendant stated to jury is mandatory
and no party can be convicted unless it
is substantially complied with. Gal-
loway V. Com., 5 R. 213 ; but in Meece
v. Com., 78 Ky. 586, the record failed to
show that any plea was entered, but
judgment was not reversed.
(6) See further, sec. 219 and notes
thereto.
§ 116. Iflsaaity. The Court of Appeals
has no authority to direct an inquiry as
to whether the defendant has not be-
come insane since the rendition of the
verdict. Brown v. Com., 14 Bush 398.
§157. (1) MMenetior— iudcoMat by
defonlt Upon an indictment for misde-
meanor a judgment may be rendered
against the defendant by default. Com.
V. Cheek, 1 Duv. 26.
(2) Upon an indictment for misde-
meanor the defendant ma}' be tried in
his absence, and may, by counsel, put in
any plea save that of guilty. His plea
may be put in and defense conducted in
his absence, and this right can not be
taken from him by requiring bail.
Johnson v. Com., 1 Duv. 244; and see
sec. 184 and notes.
(3) Watrer. The right to set aside an
indictment is waived if not made at the
proper time, and when an indictment for
misdemeanor is called for trial, if the de-
fendant fails to move to set it aside or
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462 ARRAIGNMENT AND PLEADINGS BY THE DEFENDANT. [tITLE Yt
arraignment, the defendant must either move to set aside the indict-
ment or plead thereto.
§ 158 [109] Oroaods for settiiv aside indictment The motion to set aside
the indictment can only be made on the following grounds :
1. A substantial error in the summoning or formation of the
grand jury.
2. That some person, other than the grand jurors, was present
before the grand jury when they acted upon the indictment.
8. That the indictment was not found and presented as required
plead to it, he loses his opportunity to
plead as a matter of right and should
thereafter be refused leave to plead any
other than a meritorious plea in bar.
CJom. V. Smith, 10 Bush 476.
(4) Court has no power to change cluirf e in
an indictment, even by consent of the ac-
cused. Com. V. Adams, 92 Ky. 134.
§ 15S. (1) Error in formation of fmnd
fory. Objection to an indictment be-
cause one of the grand Jurors was not a
housekeeper comes too late at the second
term after the defendant is before the
court. Com. v. Smith, 10 Bush 476;
Haggard v. Com., 79 Ky. 366; Com. v.
Prichett, 11 Bush 277.
(2) A white x>erson indicted by a grand
jury composed wholly of persons of the
white race can not complain because ne-
groes were excluded by statute from the
jury. Com. v. Wright, 79 Ky. 22. The
statute declaring that only white persons
were competent as jurors was declared
unconstitutional in Com. v. Johnson, 78
Ky. 509.
(3) Jury commissioners or sheriff,
when he acts in their stead, are not
bound to select negro jurors; the only
right the accused can claim is that no
citizen otherwise competent shall be ex-
cluded by law on account of race or color.
Haggard v. Com., 79 Ky.366.
(4) The failure of any member of the
grand jury to possess each of the quali-
fications prescribed by the statute, viz. :
being a housekeeper, citizen and over
twenty-one years of age, is cause for
setting aside indictments found by such
jury. A grand juror is a competent
witness on a motion to set aside an
indictment to prove that he was not a
citizen when he sat on the jury that
found the indictment. Raganthall v.Com.,
14 Bush 457; Com. v. Smith, 10 Bush 476.
(5) « It is a well-settled principle and
(me which is appUcable to the action of
aU -juries that the testimony of the jurors
is not competent to explain the grounds
of their decision or impeach the validity
of their finding." Com. v. Skeggs, 3
Bush 19.
(6) That a member of a grand jury was
a school trustee when the indictment was
found is no ground for setting it aside.
The provision of the statute that no
"civil officer" shall be competent does
not make the taking of a civil officer on
the grand jury a substantial error in its
formation. Com. v. Prichett, 11 Bush
277 ; Com. v. Rudd, 3 R. 328 ; nor is it
ground for quashing an indictment that
one of the grand jurors that found it was
the owner of a grist mill. Slagel v.
Com., 81 Ky. 485.
(7) It did not appear in the order of
court that the grand jury was sworn, or
that one of their number was appointed
foreman ; but, in the absence of proof to
the contrary, the court will presume that
these requirements were complied with.
Com. V. Pullan, 3 Bush 47.
(8) Evidence before {rand jnry. Court
has no power to set aside indictment be-
cause incompetent evidence was heard
by. Com. v. Minor, 89 Ky. 655.
(9) Poreman— osth to |ary. Ky. Stat,
sec. 2250 ; oath to witnesses, see sec. 106
of Code.
(10) Presentment off indictment An in-
dictment for grand larceny, committed
by stealing sheep, was indorsed on the
back, and described in the order of court
filing it as an indictment for "sheep
stealing. " Held sufiioient identification.
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TITLB Vl] ARRAiaNMBNT AND PLEADINGS BT THB DEFENDANT. 458
by tbis Code. {Decisions of court upon motion to set aside indictment
are not hibject to exception^ sec. 281.)
§ ISf [i«o] Proceediflfs wheo iodictmeot set aside. K tbe motion be sus-
tained, tbe court shall make an order that the case be submitted to
another grand jury, to be assembled at that or the next term of the
court, and the defendant, if in custody, shall be remanded to jail, or
if on bail, the bail shall be liable for the defendant's appearance to
answer a new indictment, if one be found. {See further, as to refer-
ence to grand jury y sees. 116, 117 ; dismissal when not a bar, sec. 178.)
§ 160 [i«i] Defendaflt discharfed nol^ss oew ooe be found. Unless, however,
a new indictment be found before the final discharge of the next
grand jury, the defendant shall be discharged from custody, or bail,
unless for good cause shown the court shall otherwise order. {See
further, sees. 116, 117.)
§ 161 [i«t] Motkm overruled, defendaat most plead. If the motion be over-
ruled, the defendant shall be required to plead to the indictment.
§ 162 [les] Pleadiqss allowed. The only pleading on the part of the
defendant is a demurrer or a plea.
§ 163 [i<4] Pleadings may be oral — entry of record. The demurrer and
plea must be entered in open court, and may be oral, but an entry
thereof must be made on the record.
§ 164 [179] Form of entry of demurrer and plea. The entry on the record of
the demurrer and pleas may be substantially in the following form:
1. A demurrer : " The defendant demurs to the indictment."
2. A plea of guilty : " The defendant pleads that he is guilty of
the ofiense charged in the indictment."
Com. V. English, 6 Bush 481; see sees, was entered by Commonwealth's attorney
118, 121. that accused would only be held for a
(11) Qaalifkttions off fmnd Jurors. In- misdemeanor; at next term indictment
competent person serving i^o cause for was dismissed, and case re-referred to
setting indictment aside. Ky. Stat., sec. grand jury, which again found an Indiot-
2248. ment for felony. Held that grand jury
(12) See further, sees. 118, 121 and notes had a right to say what offense defend-
thereto, ant was guilty of, notwithstanding opin-
§ 151. (1) Pallnre to dispose of former ion of attorney, and that failure to set
Iodictmeot A person was indicted for aside the order made did not affect the
murder; after the expiration of several question. King v. Com., 15 R. 247.
years a new indictment was found for (3) An indictment on motion of ac-
same offense under which he was tried ; cuscd was set aside and case resubmitted
the court held that his substantial rights to jury, defendant being allowed to stand
were not prejudiced, although no order on his bond ; failing to appear to other
was made disposing of first indictment indictment found against him, his bail
Blyew V. Com., 91 Ky. 200. was held liable. Brewer v. Com., 8
(2) Re-ladictmeflt-— power off gnnd lory. Bush 550.
Under an indictment for felony an order § IM. See note to sec 117.
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454 ABRAIGNMBNT AND PLSADINQS BT THB DEFENDANT. [TITLE YI
8. A plea of not guilty : '* The defendant pleads that he is not
guilty of the offense charged in the indictment."
4. A plea of former acquittal, or conviction : " The defendant
pleads that he has been acquitted [or convicted, as the case may be]
of the offense charged in the indictment, by the judgment of
court [naming it], rendered on the day of [naming the
time]."
§ 165 [KB] DeflmTa* wliea proper. A demurrer is proper —
1. If it appear from the indictment that the offense was not
committed within the local jurisdiction of the court.
2. If the indictment do not substantially conform to the require-
ments of article two of chapter two, of title six.
8. If more than one offense be charged in the indictment,
except as provided in section oiie hundred and twenty-seven.
4. If the facts stated do not constitute a public offense.
5. If the indictment contain matter which is a legal defense or
bar to the prosecution. {Sustaining demurrer when a bar, sec. 169;
when not, sec. 178.)
§ IM [M6J Deaurrer lor want of jorisdictloii — proceediofs. If the demurrer
be sustained, on account of its appearing that the offense was not
committed within the jurisdiction of the court, and it appear that the
offense is a felony, and was committed in the jurisdiction of another
§ Ids. (1) Demurrer. A demurrer ad-
mits the facts charged, but only to test
the law on such facts ; and if it be over-
ruled, the admission is no longer bind-
ing. Com. V. Jones, 10 Bush 725.
(2) If the indictment charges two of-
fenses, except as allowed in sec. 127, a
demurrer should be sustained, unless
one of them is dismissed, as provided in
sec. 168. Nichols v. Com., 78 Ky. 180;
Ellis V. Com., 78 Ky. 130.
(3) A demurrer is the proper mode of
objecting to an indictment upon the
ground that it charges two offenses.
Johnson v. Com., 90 Ky. 488.
(4) ** There is no provision in the
Criminal Code which forbids the filing
of a demurrer after a plea of not guilty,
or after the jury is sworn and before the
trial." Ellis v. Com., 78 Ky. 130.
(5) If a conspiracy be charged against
two or more persons for the same offense,
that does not render the indictment ob-
noxious to subsection 3, of this section.
This section must be construed with sec.
234, which authorizes a conspiracy to be
charged against two or more persons
jointly indicted for the same offense.
Salisbury v. Com., 79 Ky. 425.
(6) The court will assume on de-
murrer that the offense was committed
at the time charged in the indictment
Com. V. Cain, 14 Bush 525.
(7) Effect of demurrer. Sees. 169, 170,
178 and notes.
(8) Joinder of offenses— one offeme. See
notes to sees. 126, 127.
(9) Repeal of law— effect of. Although
the law under which an offense was com-
mitted has been repealed, the offender
may still be convicted, provided there is
nothing in the repealing statute which
impairs the force of sec. 23, chap. 21,
Gen. Stat, [now sec. 465, Ky. Stat.].
This statute and the repealing act must
be construed together. Waddell v. Com.,
84 Ky. 276 ; Com. v. Sherman, 85 Ky.
686 ; Com. v. Duff, 87 Ky. 586.
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TITLE Vl] ARRAIGHMBNT AND PLEADINQS BY THB DEFENDANT. 455
court of this State, the court shall make an order that the clerk
transmit to the clerk of the court having jurisdiction of the offense,
a copy of the indictment, and all the original papers, including the
bail bond, if any there be ; and if the defendant be in custody, that
he be carried and delivered, with a copy of the order, to the jailer of
the county to which the papers are directed to be transmitted ; and
said order, and the proceedings in obedience thereto, shall operate in
all respects as an order of a magistrate holding a defendant to answer
the charge, according to title four ; and the bail, if any, shall be liable
for the appearance of the defendant, to answer an indictment, in the
court to which the papers are transmitted, and shall have the right
of surrendering the defendant to the jailer of that county, or to that
court. {See further as to practice when want of jurisdiction appears^ sec.
§ 167 [KT] Want of jurisdiction appearing on trial — proceedings. The same
orders may be made, and proceedings had, whenever it appears on
the trial, by proof, that the offense, being a felony, was committed
out of the jurisdiction of the court in which the indictment was
found, but within the jurisdiction of another court of this State.
{See further as to practice, sees. 166 j 230.)
§ 168 [iM] Misjoinder of offenses — dismissal of one. If the indictment
improperly charge more than one offense, the attorney for the Com-
monwealth may dismiss one of them, and thereupon the demurrer
shall not be sustained on that ground. ( What offences may be joined,
sec. 1^7.)
§ 169 [It*] Judgment on demurrer — ^when final. If the demurrer be sus-
tained because the indictment contains matter which is a legal
defense or bar to the indictment, the judgment shall be final, and the
defendant shall be discharged from any further prosecution for the
offense. {Dismissal lohen not a bar, sec. 178; when judgment of acquit-
tal not to be reversed, sec. 339.)
§ 170 [iTo] Practice if demurrer sustained on certain grounds. If the demur-
rer be sustained on any other grounds than those mentioned in the
last four sections, the case may be submitted to another grand jury,
and an order to that effect may be made by the court on the record,
§ 168. Misjoinder — practice. If there is ground that it contains a misjoinder of
a misjoinder and attorney does not dis- offenses, does not operate as a bar to a
miss one of the offenses, demurrer should future prosecution, and may be reversed
be sustained. EUis v. Com., 78 Ky. 130. by the Court of Appeals. Com. v. An-
§ W. Deoiarrer— bar. An erroneous thony, 2 Met. 399 ; it is the indictment
judgment for the defendant sustaining a and not the opinion of the lower court
demurrer to an indictment, upon the that must determine whether the judg-
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456
ARRAIGNMENT AND PLEADINGS BY THE DEFENDANT. [tITLE VI
whereupon the defendant shall be held in custody, or on bail, in the
manner and for the time provided in sections one hundred and fifty-
nine and one hundred and sixty. {Dismissal of indictment not a bar^
sec. 178.)
§ 171 [iTi] Demnrrer overmled, defendant may plead. If the demurrer be
overruled, the defendant has a right to plead to the indictment; if
he fail to do so, final judgment shall be entered against him, and, if
necessary, a jury impaneled to fix the punishment.
§ 172 [1T81 Pleas that may be entered. There are but three kinds of pleas
to an indictment —
1. A plea of guilty.
2. Not guilty.
8. A former conviction or acquittal of the offense charged, either
of which may be pleaded with or without the 'plea of not guilty.
{Form of pleas, sec. 164, and page 671.)
§ 173 [ITS] Plea of ^ilty must be by defendant In person. The plea of guilty
can only be entered by the defendant himself in open court.
§ 174 [1T4] Plea of ^llty may be withdrawn. At any time before judgment
the court may permit the plea of guilty to be withdrawn, and a plea
of not guilty substituted.
ment on demurrer shall operate as a bar.
Com. V. Cain, 14 Bush 525, and see notes
lo sec. 178.
§ 172. (1) Failure to plead. Does the
silence or failure of the accused to plead
amount to a confession of guilt? The
court say: *' The safer rule would be,
where the accused refused to file an3'
plea, to have the plea of not guilty en-
tered and counsel assigned ; but when he
does plead, no confession, except that
of confession of guilt in open court by
the accused in person, will authorize
a judgment of conviction." Triplett v.
Com., 84 Ky. 193.
(2) Pleas that may be entered— evMence.
There are but three kinds of pleas that
can be entered : First, guilty ; second,
not guilty ; and third, former conviction
or acquittal ; and the court may refuse
to allow any other plea to be entered.
Although there may be a plea of guilty,
the Commonwealth to increase, or the
defendant to mitigate, the punishment
has the right to place the facts before
the jury. Cornelison v. Com., 84 Ky.
583; and requirement that indictment
shall be read as provided in sec. 219, and
plea entered is mandatory. Galloway v.
Com., 5 R. 213.
(3) Plea not entered. Although the or-
ders fail to show that a plea of not guilty
was entered, when the instructions show
what the issue was, it is too late to raise
the question in the Court of Appeals
that no plea was entered or issue made.
Meece v. Com., 78 Ky. 586.
(4) Traverse not necessary. A plea of
former acquittal or conviction need not
be traversed by the Commonwealth.
The burden is on the accused to show
that he has been acquitted or convicted
of the identical offense for which he is
being tried. Vowels v. Com., 83 Ky.
193.
(5) Trial In absence off accused. On an
indictment for misdemeanor the defend-
ant may be tried in his absence, and
may by counsel put in any plea save that
of guilty. Johnson v. Com., 1 Duv. 244;
Com. v.* Neat, 89 Ky. 241.
§ 173. See notes to sec. 174.
§ 174. (1) Plea of fuilty may be wltb-
drawn even after verdict a new trial be-
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TITLE Vl] ARRAIGNMENT AND PLEADINGS BY THE DEPENDANT.
457
§ 175 [iTi] Effect of plea of not failty. The plea of not guilty is a denial
of every material allegation in the indictment ; and all matters of
fact tending to establish a defense, other than a former conviction or
acquittal, may be given in evidence under it.
§ 174 [1T6J AcqnitUl oo verdict, or coovlctioii a bar. An acquittal by a
judgment upon a verdict, or a conviction, shall bar another prosecu-
ing granted for that purpose, if it appear
that defendant was induced to enter the
plea by the threats or promises of the
court or attorney for the Commonwealth
and thereby overreached or deceived.
Mounts v. Com., 89 Ky. 274.
(2) Plea of fflilty-^vldeace. A plea of
guilty does not deprive the Common-
wealth of the right to introduce evidence
bearing upon the question of punish-
ment where the offense charged is of
different degrees, or is punishable in the
discretion of the jury, unless such plea
has been entered upon the faith of prom-
ises by the court or Commonwealth At-
torney that the minimum punishment
will be inflicted. Mounts v. Com., 89
Ky. 275; Cornelison v. Com.. 84. Ky. 583.
§ IS. Plea of oot guilty. ** The plea of
not guilty puts in issue every fact neces-
sary for the Commonwealth to establish
in order to a conviction, and as to all
these facts or issues the burden of estab-
lishing them by proof that excludes a
reasonable doubt remains with the Com-
monwealth ; but when the accused relies
upon some separate matter of defense
not embraced in those issues, the burden
of proof to establish such matter is on
the accused." Ball v. Com., 81 Ky. 662.
§ 176. (1 ) Application of rale. The law as
to former jeopardy extends to all fel-.
onies and to all cases where the punish-
ment inflicted is infamous. Williams
V. Com., 78 Ky. 93 ; 88 Ky. 386.
(2) Arrest of lodgmeat. Where judg-
ment is arrested or reversed because of
error in not sustaining motion in arrest
of judgment, defendant may be tried un-
der a new indictment. Sec. 279 ; Cor-
nelius V. Com., 3 Met. 481 ; White v.
Com., 9 Bush 178.
(3) Breach >f the peace-^ban what ? A
conviction for a breach of the peace is a
bar to a subsequent indictment for ma-
licious wounding for the same act. Com.
V. Bright, 78 Ky. 238. And a flne for a
breach of the x>eace is a bar to an in-
dictment for assault and battery for the
same offense. Com. v. Foster, 3 Met. 1.
(4) Coaseat of accased to discharge of
jury waives any objection to being tried
again, and his consent may appear by
implication as well as by express words,
but his silence will not be construed into
consent. Robinson v. Com., 88 Ky. 386.
(5) Definition of former Jeopardy. **A
person is In legal jeopardy when he is
put upon trial before a court of compe-
tent jurisdiction upon indictment or in-
formation which is sufficient in form and
substance to sustain a conviction and a
jury has been charged with his deliver-
ance ; and a jury is said to be thus
charged when they have been impaneled
and sworn." Williams v. Com., 78 Ky. 93.
(6) Degrees of offense. Conviction or
acquittal of any degree bar to prosecu-
tion for any other degree. Sec. 177;
Com. V. Bright, 78 Ky. 238.
(7) Discharge of |ary after defendant has
been put upon trial, save in case of neces-
sity or by his consent, operates as an ac-
quittal and bars a retrial. Robinson v.
Com., 88 Ky. 386; Williams v. Com., 78
Ky. 93.
(8) Cases authorizing discharge of
jury, 88 Ky. 386, sees. 250, 261. Sections
243, 252, in so far as they authorize the
dismissal of the indictment and dis-
charge of the jury in all cases and say it
will not be a bar, are unconstitutional.
Williams v. Com.. 78 Ky. 93.
(9) Discharge of jury and dismissal of
indictment and resubmission to another
grand jury is a bar to prosecution under
second indictment if first indictment
would have sustained a conviction. Col-
liver V. Com., 90 Ky. 262; Robinson v.
Com., 88 Ky. 386; Williams v. Com., 78
Ky. 93.
(10) Discharge of jury because of their
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458 ARRAIGNMENT AND PLEADINQ8 BY THE DEFENDANT. [tITLE YI
tion for the same offense, notwithstanding a defect in form or
substance in the indictment on which the acquittal or conviction
took place.
failure to agree does not operate as an
acquittal or as a bar to another trial, al-
though they are discharged in absence of
accused. Yarbrough v. Com., 80 Ky. 151.
(11) After the jury had been sworn,
and while the evidence was being heard,
one of the jurors announced that he was
on the grand jury that found the indict-
ment. The court, against the objection
of the defendant, ordered the juror to be
discharged and another selected, which
was done. The defendant was convicted ;
on appeal the case was reversed, and on
the second trial he pleaded in bar the
discharge of the juror. Held that his
plea should have been sustained. O'Brian
V. Ck)m., 9 Bush 333, overruling O'Brian
V. Com., 6 Bush 563.
(12) BlectioataproiecHteforniidemeaiior.
Re-reference to grand jury, before de-
fendant has been put upon trial, is not a
bar to prosecution under second indict-
ment for felony, although order electing
to prosecute under first indictment —
which was also for a felony — for a mis-
demeanor was not set aside. King v.
Com., 15 R. 247.
(13) Larceny of several articles at same
tioie. By the same act, and with the
same intent, F took a horse, wagon and
harness, the property of H. Two in-
dictments were found against F, one for
stealing the horse, the other for stealing
the wagon and harness. On the trial
for stealing the horse F pleaded not
guilty and was acquitted. This acquit-
tal was a good plea in bar to the indict-
ment for stealing the wagon and harness.
Fisher v. Com., 1 Bush 211 ; see Nichols
V. Com., 78 Ky. 180; Williams v. Com.,
78 Ky. 93 ; but where a person presents a
pistol at two persons and compels both
to surrender their property at once he is
guilty of two offenses. Keeton v. Com.,
92 Ky. 522.
(14) Larceny — mlsiMner of owner of
property. The defendamt was charged in
one count of the indictment with grand
larceny and in another with receiving
stolen goods. He pleaded not guilty, and
after the evidence was heard the indict-
ment, on motion of the Commonwealth's
attorney, was dismissed. Afterward an-
other indictment was found similar to
the one dismissed, except that it charged
that the stolen property was owned by A
and B, while the first stated that it was
owned by B. To this indictment the de-
fendant's plea of former acquittal should
have been sustained. Williams v. Com.,
78 Ky. 93.
(15) Mistrial— new ladlctnieat— former
indictment lost or defective — second pros*
ecution not barred by first mistrial and
discharge of jury. Thompson v. Com.,
15 R. 838.
(16) New trial places party in same
position as if no trial had been had. Sec.
270; Com. v. Arnold, 83 Ky. 1.
(17) He can not plead first trial in
bar, and after new trial has been granted
first indictment may be dismissed and
new indictment found. Wells v. Com.,
9 R. 658 ; Haskins v. Com., 8 R. 419 ; and
see note 21.
(18) Omission to arraign defendant-niis-
charse of jury. Where the jury is se-
lected and sworn and some evidence in-
troduced and it is then discovered that
defendant has not been arraigned, the
court may, upon refusal of defendant to
act, discharge jury, arraign accused, re-
swear jury and proceed with trial. Dis-
ney V. Com., 9 R. 413; Minor v. Com.,
5 R. 176.
(19) Pardon— effect of. A pardon pend-
ing the prosecution, but before convic-
tion, is a good plea in bar to the indict-
ment. Com. V. Bush, 2 Duv. 264.
(20) One who has been convicted of a
felony and pardoned by the Governor on
a subsequent commission of the same
offense may be convicted and sentenced
for double the time as provided in sec.
12, art. 1, chap. 29, Gen. Stat, [now sec
1130, Ky. Stat.]. Mount v. Com., 3
Duv. 83.
(21) Rerersal npon defective faidicteent
Accused can not plead former convic-
tion to a trial under a new indictment.
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TITJiB VI] ARRAIGNMBNT AND PLBADINQ8 BY THE DEPENDANT.
459
§ 177 [ITT] Acqvittal or cofnrlctkm bars tU defrees of ofteoie. K an offense
consist of different degrees, a conviction, or acquittal, by judgment
upon a verdict, shall be a bar to another prosecution for the offense
in any of its degrees. {Degrees of offenses defined^ sec. S68)
§ 178 [lit] Dismissal tliat does not operate as bar. The dismissal of the
indictment by the court, on demurrer, except as provided in section
Mount V. Com., 3 Duv. 93; W^hite v.
Com., 9 Bash 178; and where one has
been convicted of manslaughter under a
murder indictment, he may, upon re-
versal of case, be tried again for murder.
Com. V. Arnold, 83 Ky. 1 ; and see note 17.
(22) Safety of tsvera-keeper. The surety
of a tavern-keeper is not concluded by a
judgment against the tavern-keeper for
a breach of his bond, but may contest
his liability, and is entitled to ten days'
notice and to a jury trial. Margoley v.
Com., 3 Met. 406.
(23) Trill bcfins when jury is sworn.
Willis V. Com., 85 Ky. 08 ; Tye v. Com.,
3 R. 59.
(24) Trial In qnarteriy court. When a
person has been indicted for a misde-
meanor he may be tried by the quarterly
court under the act of March 18, 1876
[Ky. Stat., sec. 1073]; but if he procures
a trial under said act, not in good faith,
but merely for the purpose of avoiding a
trial in the circuit court, a judgment of
acquittal in the quarterly court will not
be a bar to a trial under the indictment
in the circuit court. Carrington v. Cora.,
78 Ky. 83.
(25) Trial under ordinance of a town was
held, in Kemper v. Com., 85 Ky. 219, not
to bar a prosecution for same offense by
the Commonwealth, but see now Con-
stitution, sec. 168.
(26) Trial In United States court A de-
fendant can not be convicted in a State
court for an offense after having been
tried and convicted for the same offense
in the United States court. Com. v.
Overby, 80 Ky. 208 ; but if United States
court had no jurisdiction of offense
trial by it is not bar. Blyew v. Com.,
91 Ky. 200.
(27) Two Indlctnienta—wlien one barred.
Twoindictments were found at same time
against a railroad company for nuisance
in obstructing a road ; on the trial of the
second the company pleaded its acquittal
under the first as a bar. The court held
that the first trial was only a bar as to
such offenses as were then attempted to
be proved, and that whether acts and
time was covered by first trial was a ques-
tion of fact upon which evidence might
be introduced. C. & O. R. R. v. Com.,
88 Ky. 368.
(28) The State has the right in the
trial of certain offenses to single out and
rely upon certain acts, and when it con-
fines itself to particular acts the trial is
not a bar to other prosecutions for the
same offense committed at other times
within the year, but if the State on the
first trial attempts to embrace or cover
the entire period, then the first trial is
a bar to a second prosecution for the
same offense committed within the
period. 88 Ky. 368.
(29) Commonwealth is not confined to
time named in indictment, but may se-
lect and rely upon an offense committed
at any time within year. 88 Ky. 368;
see sec. 129 and notes.
§ 177. Conviction or acquittal for any
degree a bar to prosecution for any other
degree. Com. v. Bright, 78 Ky. 238 ; Com.
V. Hawkins, 11 Bush 60a
§ 178. (1) Dismissal of Indictment ~
when bar. See note 9 to sec. 176.
(2) An order of court* abating an in-
dictment, although superinduced by the
mistaken belief that defendant was dead,
was a termination of prosecution under
that indictment, and it could not be re-
instated on docket as a pending prosecu-
tion against the defendant. Henry v.
Com., 4 Bush 427.
(3) Attorney for Commonwealth must
file written statement of grounds of dis-
missal. Ky. Stat., sec. 123; but this
section does not apply when indictment
is dismissed to be resubmitted to grand
jury. 88 Ky. 550.
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460 MODE OP TRIAL. [tITLK VI
one hundred and sixty-nine, or for an objection to its form or sub-
stance taken on the trial, or for variance between the indictment and
the proof, shall not bar another prosecution for the same offense.
(But see note to sec. '2Ji3 as to when dismissal is bar.)
§ 179 [ito] Written pleadiofs not necessary — practice. Neither a joinder in
demurrer, nor a reply to the plea of former acquittal or conviction,
shall be necessary ; but the demurrer shall be heard and decided, and
the plea shall be considered as controverted by denial, and by any
matter of avoidance that may be shown in evidence.
CHAPTER Vl.
TRIAL.
Article 1.
2.
3.
4.
5.
6.
Mods of trial, 180.
Time of trial, 185.
Postponement of the trial, 188.
The jury, 190.
Conduct of the jury trial, 21 7.
Verdict, 255.
ARTICLE 1.
mode of trial.
g 180. Issues— how tried — jury trial.
§ 181. Issue of law.
8 182. Issue of fact.
§ 183. Defendant on trial for felony to be present — bail.
§ 184. Trial of misdemeanor in absence of accused.
§ 180 [i»i] Issues — how tried — ^jury trial. Issues of law shall be tried by
the court. Issues of fact, in prosecution for offenses of which the
punishment Is limited to a fine of sixteen dollars, shall be tried by
the court. All other issues of fact shall be tried by a jury,
§ 181 [!•«] Issue of law. An issue of law arises on a demurrer to the
indictment.
§ 182 [181] Issue of fact. An issue of fact arises upon a plea of not
guilty, or of former acquittal, or conviction. '
§ 183 [i8«] Defendaot oo trial for felony must' be present — bafl. If the
indictment be for a felony, the defendant must be present, and shall
§ 183. (1) Accused to be present duriof during his absence from the court-
trial for felony. ** One charged with the room, and when any step is taken dur-
commission of a felony can not be tried ing the trial in the absence of the pris-
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TITLE Vl]
MODE OF TRIAL.
461
remain in actual custody during the trial ; unless his bail appear per-
sonally in court, and consent that he may remain on bail, in which
case he shall be placed in actual custody wh6n the case is finally sub-
mitted to the jury. If he escape from custody after the trial has
commenced, the trial may either be stopped, or progress to a verdict,
at the discretion of the Commonwealth's attorney; but judgment
shall not be rendered until the presence of the defendant is obtained.
{Felony defined^ sec. 6. See further^ sees. 229^ 285.)
§ 184 [180] Trial of misdemeaiior io absence of accused. If the indictment
be for a misdemeanor, the trial may be had in the absence of the
defendant; or, if present, he may remain on bail during the trial.
{Misdemeanor defined^ sec. 7.)
oner the record must show aflarmatively
that he could in nowise have been prej-
udiced by it." Meece v. CJom., 78 Ky.
586 ; Rutherford v. Ck)m., 78 Ky. 639 ; 89
Ky. 151 ; 86 Ky. 642.
(2) Bail dHriof trial— accused eatitled to.
During the trial of a felony when the
bail is sufficient and agrees to stand on
the bond, the accused is entitled to re-
main on bail until case is finally sub-
mitted to the jury, and where it appears
that the personal liberty of the accused
is necessary to the preparation of his
case, the refusal to allow him to remain
on bail will be a reversible error. White
V. CJom., 80 Ky. 480.
(3) Discharfe of jniy lor failure to ag reo,
in absence of accused, does not preju-
dice his substantial rights. Yarbrough
V. CJom., 89* Ky. 151 ; nor does failure to
discharge upon request of jury. Mc-
Clemand v. Com., 11 R. 301.
(4) Instmctins Jury in absence of accused
is error. Meece v. Com., 78 Ky. 586;
McClernand v. Com.. 11 R. 301.
(5) Occasional absence from court-room on
account of temporary illness for a few
minutes at a time, this trial continuing in
the absence, did not prejudice the sub-
stantial rights of the accused. Hite v.
Com., 14 R. 308.
(6) Receiviuf verdict in absence of ac-
cused is error. Temple v. Com., 14
Bush 769.
(7) Subnission of case to |nry in absence
of accused is error. Allen v. Com., 86
Ky. 642; Brewer v. Com., 10 R. 122;
but it is not necessary that accused
should be present every time after first
submission when jury retire to their
room. Richey v. Com., 10 R. 181.
(8) Trial for feloay befins when jury is
sworn, and after trial has begun the de-
fendant is in the custody of the court
and the bail not responsible unless they
consent in open court that he may re-
main on bail. Willis v. Com., 85 Ky.
68; Tye v. Com., 3 R. 59.
§ 1S4. (1) Accused may be absent duriof
trial for misdemeanor. Com. v. Cheek. 1
Duv. 62; Johnson v. Com., 1 Duv. 244;
and see notes to sec. 157.
(2) Jndament by default Qiay be rendered
in misdemeanor case ; and, if necessary,
a jury impaneled to fix the punishment.
Sec. 171 ; Com. v. Neat, 89 Ky. 241 ;
jury must fix penalty. Ky. Stat., see.
1136. and sec. 258 of Code.
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462 TIME OF TRIAL. [TITLB VI
ARTICLE 2.
TIME OF TRIAL.
§ 185. Trial at term indictment found.
§ 186. Docketing prosecutions, setting for trial.
§ 187. Time prosecutions stand for trial.
§ 185 [i8<i Trial at term iadictment loaod. If the defendant be in custody,
or on bail, when the indictment is found, the trial may take place at
the same term of the court, at a time to be fixed by the court.
§ 186 [iti] Docketiflf prosecotioos, settiag lor trial. All criminal prosecu-
tions and penal actions not tried at any term of a court shall be
docketed by the clerk for the next term, beginning with the first day
thereof and setting them for as many days as may be necessary, in
the same manner as ordinary civil actions are docketed. But the
court may direct the number of days for which such prosecutions and
actions shall be docketed ; and may order any cause to be set for trial
at a time specified in the order.
§ 187 [istj nme prosecutions stand for trial. All prosecutions shall stand
for trial on the day to which they are docketed, if the defendant be
in custody, or on bail, or have been summoned three days before the
commencement of the term.
ARTICLE 3.
POSTPONEMENT OP TRIAL.
§ 188. Trial may be postponed for cause.
§ 189. Civil Code regulates postponement, with exceptions — affidavit.
§ 188 [it9] Trial may i>e postponed for cause. When an indictment is called
for trial, or at any time previous thereto, the court, upon sufficient
cause shown by either party, may direct the trial to be postponed to
any time in the same term, or to another term.
§ 1S9 [100] Civil Code reg:ulates postponement with exceptions — affidavit The
provisions of the Code of Practice in civil actions, in regard to postpone-
§ 189. (1) Affidavit may be made by a (2) Amended affldavit After a motion
person other than defendant, and if made for continuance has been overruled, the
at same term at which indictment is court may permit an amended affidavit
found the truth of it must be admitted to be filed and the motion renewed,
if defendant is forced into trial. Hard- Com. v. Hourigan, 89 Ky. 305; but after
€sty V. Com., 88 Ky. 537. overruling first motion court may impose
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TITLE Vl]
POSTPONEMENT OF TRIAL.
468
ment of the trial of actions, shall apply to the postponement of prosecu-
tions, on application of the defendant, except that, when the ground of
application for a continuance is the absence of a material witness,
and the defendant makes affidavit as to the facts which such witness
would prove, the continuance shall be granted, unless the attorney
for the Commonwealth admit upon the trial that the facts are true.
[That whenever, in any criminal or penal action pending in any
of the courts of this Commonwealth, an application shall be made
by the defendant for a continuance, based upon affidavits stating
the absence of one or more material witnesses, and the facts
which such absent witness or witnesses would, if present, prove,
the attorney for the Commonwealth shall not be compelled, in
order to prevent a continuance, to admit the truth of the matter
which it is alleged in the affidavit such absent witness or witnesses
would prove, but only that such absent witness or witnesses would,
if present, testify as alleged in the affidavit. In which event the
terms upon defendant as to subsequent
motions. Smith v. Com.. 13 R. 612.
(3) Cooitltatioiuimy of act of May 15,
1886, providing that affidavit for con-
tinuance may be read as a deposition
without admitting its truth, is suggested
in Pace v. Com., 89 Ky. 304; Unsel v.
Com., 87 Ky. 368; Kendall v. Com., 14
R. 15; Hardesty v. Com., 88 Ky. 537;
"but in each of these cases the court re-
frained from expressing an opinion on
this question. In Taylor v. Com., 9 R.
316, the court say ** whether the accused
can waive the right of confronting the
witnesses against him is not necessary to
be determined."
(4) Coiiiuel— absence of one of two or
more counsel for defendant is not suffi-
cient grounds for continuance, unless it
clearly appears that a fair trial can not
be had in his absence. Stephens v.
Com., 9 R. 742; Brown v. Com., 7 R. 451.
(5) Coiiiiler affidavits. It is not proper
to permit the Commonwealth to read
affidavits contradictory of the state-
ments made in the affidavit of the ac-
cused for a continuance ; but the court
may make inquiry to ascertain whether
facts stated in affidavit are true, and a
continuance may be granted to a day in
the term. Salisbury v. Com., 79 Ky.
425 ; Wells v. Com., 12 R. 111.
(6) DiUsence. It Is not necessary that
affidavit should show that subpoena was
issued and executed if subpcena is ex-
hibtied to court. Vogt v. Com.. 92
Ky. 68 ; and see further, as to facts show-
ing diligence, Salisbury v. Com., 79 Ky.
425; Morgan v. Com., 14 Bush 106.
(7) Admonition of court to witnesses
to be present on certain day does not dis-
pense with necessity of defendant having
his witnesses summoned or recognized.
Rainwater v. Com., 5 R. 103.
(8) Facts showiot accused eatitled ta coa-
tinoaace, although Commonwealth con-
sented to admit affidavit as true. Mur-
phy V. Com., 92 Ky. 4a5.
(9) Pacts affidavit mast show. Affidavit
must show what steps have been taken
to procure attendance of witness that
his evidence is material, that he is with-
in the jurisdiction of the court, and that
the affiant believes facts he can prove
by him are true. Benge v. Com., 92 Ky.
1 ; Unsel v. Com., 87 Ky. 368; Stephens
V. Com., 9 R. 742; Smith v. Com.. 13 R.
612; Kendali v. Com., 14 R. 15.
(10) Joint defendaats. One may rely
upon diligence of other to procure at-
tendance of witnesses, and when the one
who has attended to it has used dili-
gence, the other is entitled to a con-
tinuance if witnesses are not present, the
witnesses for each being the same.
Walker v. Com., 5 R. 861.
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464
POSTPONEMENT OF TRIAL.
[title VI
defendant may, on the trial, read such affidavit as the deposition of
such absent witness or witnesses, subject, however, to exception for
irrelevancy or incompetency ; and the attorney for the Common-
wealth shall be permitted to controvert the statements of such
affidavit so read by other evidence, and to impeach such absent
witness or witnesses to the same extent as if he were personally
present: Provided^ however y The court may, when, from the nature
of the case, it shall be of opinion that the ends of justice require
it, grant a continuance, unless the attorney for the Commonwealth
will admit the truth of the matter which it is alleged in the affi-
davit such absent witness or witnesses would testify to.
The provisions of this section shall not apply to a motion for a
continuance made at the same term at which the indictment in the
action is found.] ( Words in brackets act 1886; provisions of Civil
Code referred to^ sec. 315.)
(11) Noa-resideat witness. It is not error
to refuse a continuance asked for be-
cause of the absence of a witness who
resides in another State, when it is im-
probable that he could be produced at
the next term, and there are other wit-
nesses who will testify to the facts that
can be proved by him. Kennedy v. Com.,
78 Ky. 447 ; nor to refuse a continuance
where the affidavit failed to state that
the subpoenas which were issued had been
delivered to any person authorized to
execute them. Mackey v. Com., 80 Ky.
345.
(12) A continuance should be granted
when the evidence of the absent witness
is material and proper diligence has
been used to secure his attendance, al-
though the witness may be a resident of
another State, if there are reasonable
grounds to believe his presence can be
secured at the next term. White v.
Com., 80 Ky. 480.
(13) Other evidence introdnced, proving
what defendant expected to show by ab-
sent witnesses, refusal to grant continu-
ance not error. Williams v. Com., 13 R.
753 ; Simmons v. Com., 13 R. 839 ; Tra-
bune v. Com., 13 R. 343; Roberts v.
Com., 94 Ky. 499.
(14) Personal attendance of witness. Facts
showing defendant was not prejudiced by
failure to secure the personal attendance
of his witness, although he filed an affi-
davit stating that , personal attendance
was necessary. Davis v. Com., 6 R. 654 ;
see sec. 556 Civil Code. Does this sec-
tion apply in criminal oases? Com. v.
Minor, 89 Ky. 555.
(15) Refusal to {rant — revenible error.
When the affidavit of the defendant
shows that he is entitled to a continu-
ance, the Court of Appeals will reverse
for the error in overruling his motion.
Morgan v. Com., 14 Bush 106; Salisbury
V. Com., 79 Ky. 425; Wells v. Com., 13
R. 111.
(16) Trath of affidavit admitted. When
the facts to which it is alleged the wit-
ness will testify are admitted to be read
as true by the Commonwealth, a contin-
uance should not be granted ; not can
the Commonwealth introduce evidence
tending to disprove the facts admitted
as true. Young v. Com., 8 Bush 366;
Pace V. Com., 89 Ky. 304 ; O'Brien v.
Com., 89 Ky. 354; Nichols v. Com., 11
Bush 575.
(17) Witness absenting himself after {nry
sworn entitles defendant to a continuance
if his evidence is material, and his at-
tendance can not be procured and it ap-
pears that there was no collusion be-
tween defendant and the witness. Costi-
gan V. Com., 11 R. 617; Joseph v. Com.,
8R. 53.
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TITLE Vl] FOBMATION OP THB JURY. 465
ARTICLE 4.
THB JURY.
Subdivision 1. Formation of the jury, 190.
2. Challenging the jury, 197.
SUBDIVISION 1.
FORMATION OF THB JURY.
§ 190. Jury — how summoned and selected.
§ 191. Clerk to draw jury as directed by statute.
§ 192. Panel— how fiUed.
§ 193. Court may appoint person to summon jury.
§ 194. Jurors may be summoned from adjoining county.
§ 195. Mileage and pay of jurors from adjoining county.
§ 196. Sheriff may summon — attendance coerced.
§ \% [191] Jary — how sammoned aod selected. The jury for the trial of
criminal prosecutions shall be selected and summoned as provided in
the General Statutes [now Kentucky Statutes]. {See Ky. Stat., sec.
2266)
§ 191 [19S] Clerk to draw jury as directed by «MvXt. When an issue of fact
in a criminal prosecution is about to be tried, the clerk shall draw, in
the manner directed by the General Statutes [now Kentucky Statutes],
the names of twelve jurors, who, if not challenged by the parties, nor
excused by the court., shall compose the trial jury. {See Ky. Stat, ,
sec. 2266.)
§ 192 [i»»] Paoel — how filled. When a juror is excused or a challenge
to a juror is sustained the clerk shall draw the name of another juror
to fill the panel until the list of standing jurors is exhausted, when
the court shall order such a number of qualified jurors as it shall
deem sufficient to complete the jury to be summoned by the sheriff^,
and the panel shall be filled from time to time from the jurors so
summoned, and if they be exhausted, similar orders may be made
for summoning other jurors, until the jury is completed. {Selection
of jury after panel exhausted^ Ky. Stat., sees. 22^7 y 2266.)
§ 193 [194] Court isay appoint persoa to summoa jury. The court may, for
sufficient cause, designate some other officer or person than the
§ 191. (1) CtaOeate— practice. See notes than twelve jurors. Murphy v. Com., 1
to sec. 215 ; and Ky. Stat., sec. 2266. Met. 365; Tyra v. Com., 2 Met. 1.
(2) Less tluM twelve iarors. In a prose- § 193. SpecM MOffs — one or more may
cation for misdemeanor, by consent of be appointed, as provided in this section,
the defendant, he may be tried bv less to summon Jurors. Roberts v. Com., W
(80)
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466 CHALLENGING THE JURY. [tITLB VI
sheriff to summon petit jurors, the officer or person designated being
first duly sworn in open court to discharge the duty faithfully and
impartially.
§ 194 [190] Jurors may be sofflmoned from adjoiniaf connty. If the judge of
the court be satisfied, after having made a fair effort, in good faith,
for that purpose, that, from any cause, it will be impracticable to
obtain a jury free of bias in the county wherein the prosecution is
pending, he shall be authorized to order the sheriff to summon a
sufficient number of qualified jurors from some adjoining county in
which the judge shall believe there is the greatest probability of
obtaining impartial jurors, and from those so summoned the jury
may be formed.
§ 195 [!••] Mileage and pay of Jurors from adjoiaio; county. The jurors so
summoned shall be allowed the same mileage as witnesses, and the
same pay as other jurors while in attendance at the courts.
§ 196 [i«T] Sheriff may summon — ^attendance coerced. The sheriff shall
have the same power of summoning jurors under such order that he
would have in the county of which he is the sheriff', and the court
the same power of coercing the attendance of such jurors that it
would have if they were summoned in the same county.
SUBDIVISION 2.
CHALLENQING THE JURY.
§ 197. Challenge may be to panel or individual juror.
§ 198. Challenge of one defendant is challenge of all.
§ 199. Grounds of challenge to panel.
§ 200. Proceedings when challenge to panel sustained.
§ 201. Challenge to juror is peremptory or for cause.
§ 202. Must be made before juror sworn in chief, unless by leave.
§ 203. Peremptory challenges allowed defendant.
§ 204. Peremptory challenges allowed Commonwealth.
§ 205. Either party may challenge for cause.
Ky. 499; and may with the consent of appears that sheriff is related to accused,
the court appoint an assistant. Forman Allen v. Com., 11 R. 556.
V. Com., 86 Ey. 605; and the unsup- §194. (1) Jurors from adjoioins connty.
ported affidavit of defendant that the The manner in which the judge ts to
person appointed is not suitable, be- satisfy himself that a jury can not be
cause biased against accused is not suf- obtained in count}' where prosecution is
ficient evidence of error in this respect. pending is by making a fair effort to ob-
86 Ky. 605; the court may on its own tain a jury in that county, and his ac-
motion appoint a special bailiff when it tion can not be controlled by the affl-
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TITLE Vl] CHALLBNGING THE JURY. 467
§ 206. Challenge may be general or particular.
§ 207. Causes of general challenge.
g 208. Particular causes of challenge.
§ 209. Actual bias defined.
§ 210. Implied bias—what is.
§ 211. Exemption from service no ground of challenge.
§ 212. Challenge tried by court — ^how determined.
§ 213. Juror may be examined on challenge.
§ 214. Other witnesses may be examined.
§ 215. Commonwealth to challenge first.
§ 216. Order of challenges.
§ 197 [i9ti Clulleiige to paoel or indivldiial Jaror. A challenge is an objec-
tion to the trial jurors and is of two kinds —
1. To the panel.
2. To the individual juror.
§ 198 [199] Challenge of one defendant is challenge of all. When several
defendants are tried together the challenge of any one of the defend-
ants shall be considered the challenge of all.
§ 199 laoo] Grounds of challenge to panel. A challenge to the panel shall
only be for a substantial irregularity, in selecting or summoning the
jury, or in drawing the panel by the clerk. {See as to selecting and
summoning jury^ Ky. Stat.^ sec. ^^4^.)
§ 200 [SOI] Proceedings when challenge to panel sustained. If the challenge
be sustained on the ground of irregularity in selecting or summoning
the jury, all the standing jurors shall be excluded from the trial jury,
and it shall be composed of persons summoned by the sheriff, or
other officer appointed by the court for that purpose ; if sustained
because of irregularity in drawing the panel, all the names of the
standing jury shall be replaced and another panel drawn.
§ 201 [SOS] Challenge to iuror peremptory or for cause. The challenge to the
individual juror is either —
davit of the defendant. Roberts v. § 199. (1) Cballeage — waiver. An ob-
Com., 94 Ky. 499. jection for error in the formation of the
(2) There having been three trials of a petit jury is waived unless made at the
case in the same county the court was au- proper time. Hazzard v. Com., 79 Ky.
thorized to send to an adjoining county for 366. Decisions of the court upon chal-
the jury in fourth trial without making lenges to the panel or for cause are not
any effort to obtain jury in county where subject to exception. Sec. 381 ; Morgan
trial was pending except to exhaust the v. Com., 14 Bush 106; Rutherford v.
regular panel. Brafford v. Com., 13 R. 154. Com., 13 Bush 608; Terrell v. Com., 13
§ 197. Practice in challenging. See notes Bush 246.
to sec. 215. (2) Pailnre to pot In wheel number of
§ 19ft. Chalfeogeof one challenge of all— names provided in sec. 2241, Ky. Stat.—
and this rule applies to a defendant who when reversible error. Risner v. Com.,
was granted a separate trial after trial 95 Ky. 539.
had proceeded for a time against all the § 201. Practice in challeogiog. See notes
defendants. Glass v. Com., 16 R. 108. to sec. 215.
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468 OHALLSNGINa THl JUET. [tITLI YI
1. Peremptory; op,
2., For cause.
§ 202 [sot] Most be made before Joror sworo la chief, miless by leave. It mnst
be taken before he is sworn in chief, unless the court, for good cause,
permit it to be made at any time before the jury is completed.
§ 203 [1041 Peremptory challeajj^es allowed defendant. The defendant is enti-
tled to [fifteen] peremptory challenges in prosecutions for felony, and
to thr«e in prosecutions for misdemeanor. {Fifteen in place of twenty y
acts 1893)
§ 2M [BOB] Peremptory challenfes allowed Commonwealth. The Common-
wealth shall be entitled to five peremptory challenges in prosecutions
for felony, and to three in prosecutions for misdemeanor.
§ 205 [106] Either party may challenj^e for cause. The challenge for cause
may be taken either by the Commonwealth or by the defendant.
§ 206 [SOT] Challenji:e may be j^eneral or partkolar. It may be general, that
the juror is disqualified from serving in any case, or particular, that
he is disqualified from serving in the case on trial.
§ 207 [MS] Caosei of general challenge — newspaper accounts. Causes of gen-
eral challenge are —
1. A want of the qualifications prescribed in the General Statutes
[now Kentucky Statutes]. {See Ky. Stat.y sec. 2263,)
2. A conviction for a felony.
8. Unsoundness of mind, or such defect in the faculties of the
mind or organs of the body as render him incapable of properly
performing the duties of a juror.
[It shall not be a cause of challenge that a juror has read in the
newspapers an account of the commission of the crime with which
the prisoner is charged, if such juror shall stateon oath that he
believes he can render an impartial verdict according to the law
and the evidence ; and pro\dded further, that in the trial of any
criminal cause the fact that a person called as a juror has formed
an opinion or impression, based upon rumor or upon newspaper
statements (about the truth of which he has expressed no opinion),
shall not disqualify him to serve as a juror in such case, if he shall,
upon oath, state that he believes he can fairly and impartially ren-
der a verdict therein in accordance with the law and the evidence,
§ 213. Coastractioa of statute. It was the Code took effect. WaIsIoq v. Com.,
held under the Code of 1854 that these 16 B. M. 15.
provisions affected the proceedings only, § 2IS. Ckftllenfe — caase. DecisionB of
were not ear j>o#< /oeto laws, and that they the court upon challenge for cause are
applied to prosecutions pending when not subject to erceptiont. Sec. 281; 14
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TITLB Yl] CHALLBNGIKQ THE JUBT. 469
and the court shall be satisfied of the truth of snoh statement.]
{Words in brackets act of 1888.)
§ 298 [Mf] Particalar caviei ef chslltH*. Particular causes of challenge
are actual and implied bias.
§ 20f [tit] Actual bias defined. Actual bias is the existence of such a
state of mind on the part of the juror, in regard to the case, or to
either party, as satisfies the court, in the exercise of a sound discre-
tion, that he can not try the case impartially and without prejudice
to the substantial rights of the parties challenging.
§ 219 [su] implied Mas — what is. A challenge for implied bias may be
made —
1. If the juror be related by consanguinity, or affinity, or stand
in the relation of guardian and ward, attorney and client, master
and servant, landlord and tenant, employer and employed on
wages, or be a member of the family of the defendant, or of the
person alleged to be injured by the offense charged, or on whose
complaint the prosecution was instituted.
2. If he be adverse to the defendant in a civil suit, or have com-
plained against or been accused by him in a criminal prosecution.
3. If he have served on the grand jury which found the indict-
ment, or on the coroner's jury which inquired into the death of
the party, whose death is the subject of the indictment.
4. If he have served on a trial jury, which has tried another
person for the offense charged in the indictment.
5. If he have been one of a former jury sworn to try the same
indictment, and whose verdict was set aside, or who were dis-
charged without a verdict.
6. If he have served as a juror in a civil action brought against
the defendant for the act charged in the indictment.
7. When the offense is punishable with death, if he entertain
such conscientious opinions as would preclude him from finding
the defendant guilty. {See act under sec. ^07.)
§ 211 [SIT] Exemption from service no s^round for challenge. An exemption
f^om serving on a jury is not a cause of challenge.
§ 212 [21SI Challenjce tried by court — how determined. Challenges shall be
tried and determined by the court in a summary manner, without the
issues of law or fact arising thereon being reduced to writing, except
when the court disallows a challenge for implied bias.
Bush 106 ; 13 Bush 246 ; t6. 608 ; see, as to fendant may waive objection to a Juror
practice, notes to sec. 215. on account of implied bias. O'Brian v,
§210. InpMcd Mas — waiver. The de- Com., 0 Bush 833.
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470
CHALLBNGINa THE JURT.
[title VI
§ 213 [tit] Juror may be examined on chaUeofe. The jaror may be exam-
ined on oath by either party, upon the challenge.
§ 214 [ti4i Other witnesses may l^e examined. Other witnesses may also be
examined and their attendance coerced.
§ 215 [tio] Commonwealth to challenfe first — practice. The challenges to the
juror shall first be made by the Commonwealth, and then by the
defendant, and each party must exhaust his challenges to each juror
before the other begins.
§ 2U [tie] Order of challenges. The challenges of either party need not
be all taken at once, but separately, in the following order:
1. To the panel.
§215 (1) Ciiallense— practice. ''Under
the Code, each party is entitled to have a
full panel of twelve jurors, found upon
examination qualified to try the case, be-
fore being required to exercise the right
of challenge to the individual juror;
and whenever the number is lessened by
challenge of either party, the panel must
be filled before being passed on, and so on
until the jury is completed. When a full
panel of qualified jurors is presented, the
Commonwealth jpust then either accept
or challenge. Having accepted or de-
clined to challenge, the challenges as to
those then passed on are, in the language
of the Code, exhausted ; or, having chal-
lenged one or more, the ot^iers must be
considered as accepted. The right of
challenge is to be exercised by the Com-
monwealth and by the defendant in the
same manner and upon the same condi-
tions, the only difference being as to the
number of peremptory challenges al-
lowed to each. The defendant, as well
as the Commonwealth, is therefore re-
quired to exhaust his challenges to each
juror of a panel when presented to be
passed upon." Munday v. Com., 81 Ky.
233 ; Edrington v. Com., 7 R. 377.
(2) *• A full panel of twelve jurors
found upon examination qualified to try
the case should have been first presented
to the Commonwealth for its acceptance
or challenge, and all not then challenged
should have been regarded as accepted ;
then the full panel should have been pre-
sented to the accused for his acceptance
or challenge, and all not then challenged
should have been regarded as accepted
by him and not subject to be again
passed on by either party ; but, in case
of the challenge of one or more by either
party, the vacancies should have been
filled from time to time so as to present
to each party for acceptance or chal-
lenge twel\!e qualified jurors, including
those already accepted." By qualified
jurors is meant jurors qualified after ex-
amination to sit in the case. Jenkins v.
Com., 0 R. 254; Wilson v. Com., 9 R.
274.
(3) After twelve men had been proven
competent jurors upon a voir dire ex-
amination and before they were sworn
the defendant had a right to challenge
without cause ; this right may be waived,
but it is not waived either by the Com-
monwealth or the accused by an ex-
amination of the individual juror as to
his fitness. Shelby v. Com., 91 Ky. 563.
(4) Practice. Where a portion of the
regular panel are engaged in considering
a case bystanders may be summoned to
make up with the unoccupied jurors the
full panel. McClernand v. Com., 11 R.
301 ; Ky. Stat., sec. 2266.
(5) After a jury had been selected
but before they were sworn the Com-
monwealth's attorney filed an affida-
vit showing that one of them had ex-
pressed an opinion, thereupon the entire
jury was discharged and an order made
directing the sheriff to summon twenty-
four jurors, including the eleven who
had been discharged. Held that it
would have been proper to have sum-
moned an entire new jury, but the fail-
ure to do so was not a reversible error.
Shelby v. Com., 91 Ky. 563.
§ 216. See notes to sees. 210, 215.
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TITLE Vl] CONDUCT OF THE JURY TRIAL. 471
2. To the juror for general disqualification.
8. To the juror for implied bias.
4. To the juror for actual bias.
5. Peremptory.
ARTICLE 5.
CONDUCT OF THB JURY TBIAL.
§ 217. Oath of jury to try issue.
§ 218. Oath if no issue made.
§ 219. Indictment to be read and plea stated.
§ 220. Statement for Commonwealth.
§ 221. Introduction of evidence for Commonwealth.
g 222. Statement for defense.
§ 223. Introduction of evidence for defendant.
§ 224. Rebutting evidence.
§ 225. Instructions to be in writing. '
§ 226. Jury to withdraw during argument on instructions.
§ 227. Argument — order of.
§ 228. Arguments to alternate.
§ 229. Defendant to remain in custody during felony trial.
g 230. Proceedings if offense committed out of jurisdiction.
§ 231. Proceedings if offense committed out of State.
§ 232. Proceedings if higher grade of offense proven. •
8 233. Indictment to be quashed — when.
§ 234. Joint defendants can not testify for each other — when.
§ 235. Questions of law to be decided by court.
§ 236. Jury may view place offense committed — when.
§ 237. Joint defendants in felony entitled to separate trial.
§ 238. Reasonable doubt entitles defendant to acquittal.
§ 239. Conviction to be of lower, if doubt as to degree.
§ 240. Confession out of court must be corroborated.
§ 241. Testimony of accomplice must be corroborated.
§ 242. Peremptory instruction to acquit if corroboration not sufBcient.
§ 243. Attorney for Commonwealth may dismiss indictment — effect of.
§ 244. Cases in which jury must be kept together.
§ 245. Officers in charge of jury to be sworn.
§ 246. Admonition of court to jury.
§ 247. Room for jury — board and lodging.
§ 248. Jury to take all papers and other things received as evidence.
§ 249. Information as to law or evidence after case submitted.
§ 250. Sickness of juror before jury completed.
§ 251. Discharge of jury — provision if juror sick.
§ 252. Jury discharged, cause to be tried again.
§ 253. Court always open while jury deliberating.
§ 254. Final adjournment discharges jury.
§ 217 [lit] Oath of jury to try issue. When a jury, consisting of twelve
qualified jurors, shall have been duly impaneled, they shall be sworn
substantially as follows :
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472
CONDUCT OP THE JURY TRIAL.
[TITLB VI
"You, and each of you, do solemnly swear, that you will well
and truly try the issue, and a true verdict render, in the case of the
Commonwealth of Kentucky against A B, defendant."
§ 218 [ti9] Oath if no issue made. If no issue be made by the pleadings,
the words " well and truly try the issue, and " shall be omitted from
the oath.
§ 219 [sio] Indictmeilt to be read and plea stated. The clerk, or Common-
wealth's attorney, shall then read to the jury the indictment, and
state the defendant's plea. (What pleas may be entered^ sec. 172.
Arraignment^ sees. lo4y 155.)
§ 220. Statemeat for Coomioawealtli. The attorney for the Common-
wealth may then state to the jury the nature of the charge against
the defendant, and the law and evidence upon which he relies in
support of it.
§ 221 [till latrodnctioa of evidence for Commonwealth. The counsel for the
§ 219. (1) Readias of iodictmeiit — plea.
"Where an indictment charges two of-
fenses and one of them is dismissed it is
not error for Commonwealth's attorney to
read entire indictment to jury when he
states oflfense being tried. Greenwood
V. Com., 11 R. 320.
(2) Requirement that indictment shall
be read and plea stated is mandatory,
but fact that indictment is read by an
attorney employed to prosecute is not
error. Galloway v. Com., 5 R. 213.
(3) See further, sec. 154 and notes
thereto.
(4) An order reciting that **came
parties, and defendant having heretofore
pleaded not guilty of the offense charged
in the indictment for his trial puts him-
self upon his country and the attorney
for the Commonwealth does likewise,"
although it does not state in terms that
indictment was read to jury or plea
stated is sufficient. Patterson v. Com.,
86 Ky. 313.
§220. (1) Statement for Commoawealth
may be made by an attorney other than
attorney for Commonwealth. Roberts
V. Com., 94 Ky. 499.
(2) Attorney for Commonwealth should
not be permitted to read writings he in-
tends to introduce as evidence, but
when the writings are introduced the
error will not be reversible if writings
were competent. O'Brien v. Com., 89
Ky. 354.
§ 221. (1) AccooifUce. See sec. 241
and notes.
(2) Afffidayft fer coatiaaaace admitted
to be read as true can not be contro-
verted. Pace V. Com., 89 Ky. 204;
Young V. Com., 8 Bush 366; O^Brien v.
Com., 89 Ky. 354 ; and see notes to sec.
189.
(3) BeUef of accased that he was la daa-
%tt when he killed deceased may be
shown by his testimony. Williams v.
Com., 90 Ky. 596.
(4) Bnrdea of proof oa deleadaat In all
statutory' crimes it is competent for the
Legislature to say that certain acts
proven by the Commonwealth shall be
sufficient to make out a presumptive
case against the accused and cast the
burden on him ; but the burden can not
be cast on defendant until the Common-
wealth has first proven some material
fact conducing to his guilt. Com. v.
Minor, 88 Ky. 422 ; as illustrations of
such laws, see Ky. Stat., sees. 2571, 1967.
(5) Character of deceased--evidence to
sustain can not be introduced until it
has been attacked. Parker v. Com., 16
R. — ; Webb V. Com., 11 R. 642.
(6) Upon the trial of the accused for
murder it was held proper under the
facts of this case to permit him to prove
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TITLE Vl]
COKDUCT OP THE JURY TRIAL.
473
Commonwealth must then ofter the evidence in support of the
indictment.
that the deceased was a man of violent,
cruel and bloodthirsty disposition, and
in the habit of carrying concealed
deadly weapons. Payne v. Com.. 1 Met.
370 ; Riley v. Com., 94 Ky. 266.
(7) Chftncter of accvsed, if he testify,
may be put in issue as that of any other
witness, and the Commonwealth is not
confined to his character for truth, but
may assail his general moral character.
Lockard V. Com., 87 Ky. 201; Burdette
V. Com., 93 Ky. 76; Pace v. Com., 89
Ky. 204 ; but the inquiry as to his char-
acter for morality and truth must relate
to the time he testifies and not when he
committed the crime. Com. v. Houri-
Kan, 89 Ky. 305 ; 78 Ky. 219 ; 86 Ky. 10;
and it is not proper to go into details of
particular acts making up character,
whether good or bad. Smith v. Com.,
18R.31.
(8) The Commonwealth is not allowed
to call witnesses to prove the bad char-
acter of the accused unless to rebut the
evidence of good character already in-
troduced by him ; and evidence as to
character must be restricted to the trait
of character which is in issue. Young
V. Com., 6 Bush 312.
(9) Proof of character in aid of the
presumption of innocence is admissible.
6 Bush 312 ; but should be limited to the
time of the discovery of the commission
of the offense, and should not extend to
the date of the arrest, and is not allowed
to extend to particular acts or conduct
in special cases. White v. Com., 80 Ky.
480. Nor should proof of the bad char-
acter of any of the family of the accused
be admitted. McClure v. Com., 81 Ky.
448.
(10) Cbancter off wHoesi. The Com-
monwealth can not introduce evidence
of particular facts for the purpose of
affecting the credibility of the witnesses
for the defendant, as that *' one of them
had been prosecuted for false swearing,
and that all of the witnesses introduced
by the defendant belonged to a clique
that were banded together to swear ne-
groes oat of any offense charged against
them." Taylor v. Com., 3 Bush 508.
Nor is proof that the family or associates
of the witness are in bad repute compe-
tent. Kean v. Com., 10 Bush 190. In
impeaching the credit of a witness by
general evidence, the examination most
be confined'to his general reputation, and
is not permitted as to particular facts.
Thurman v. Virgin, 18 B. M. 785 ; Young
v. Com., 6 Bush 312 ; and see notes to
sees. 597-599, Civil Code, page 305.
(11) **In order to impeach a witness
the evidence of bad character should be
directed to the time of the trial, and to
this end under proper circumstances evi-
dence of previous bad character is com-
petent ; while the evidence of bad char-
acter at a time previous may tend to
show the character of the witness at
the present, it should be admitted with
some caution." Mitchell v. Com., 78
Ky. 219.
(12) '*An impeaching witness should
be able to say that he knows the general
estimation in which the witness sought
to be impeached is held among those
who know him, or among whom he lives.
If he does, then he may say whether the
witness is esteemed by his neighbors and
those who know him as a person of good
moral character or not.'* Furnish v.
Com., 14 Bush 180.
(13) Impeachment of character of wit-
ness, whose affidavit is read as a deposi-
tion, is allowable, and witness may be
impeached without regard to materiality
of his evidence. Davis v. Com., 95Ky. 19.
(14) Ciroinstaatlal evideict. Circum-
stantial evidence, ** when of a satisfac-
tory character, sufficient to warrant a
conviction, should be left like direct or
positive evidence to be considered by the
jury, and to have such weight as they
deem it entitled to." Brady v. Com., 11
Bush 282.
(15) There is no law requiring the
court, at the instance of the accused, to
have dead bodies taken up and examined
at the expense of the State or county for
the purpose of furnishing him with evi-
dence. Salisbury v. Com., 79 Ky. 425.
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474
CONDUCT OF THE JURY TRIAL.
[title VI
§ 222. Statement for defendant The defendant, or his attorney, m&j
then state the nature of his defense, and the law and evidence upon
which he relies in support of it.
§ 223 [tt2] Introdaction of evidence for defendant. The defendant, or his
counsel, must then offer his evidence in support of his defense.
(16) Oircumstantial evidence is com-
petent to establisli the fact that the per-
son charged to have been murdered is
dead, and it is for the Jury to determine
its conclusiveness. Johnson v. Com., 81
Ky. 825 ; and see O'Brien v. Com., 89 Ky.
854, holding that where circumstantial
evidence has to be relied on, any fact
which is necessary to introduce or ex-
plain another may be proved; and see
further, Riley v. Com., 94 Ky.266 ; Com.
v. Hide, 94 Ky. 517.
(17) CoafessioDS. See sec. 240 and
notes.
(18) Competency. The Court of Ap-
peals can not "speculate" on the effect
of incompetent evidence. It is enough
to know it was wrong, and may have
operated to the prejudice of the defend-
ant. Kennedy v. Com., 14 Bush 340;
Coppage v. Com., 3 Bush 532.
(19) Any person can testify without
regard to his religious belief or disbelief,
and it is not proper to make any inquiry
concerning it. Bush v. Com., 80 Ky.
244.
(20) All persons are competent except
those excluded by sec. 1180, Ky. Stat.
Com. v. McGuire, 84 Ky. 57 ; 89 Ky. 555 ;
Combs V. Com., 15 R. 060.
(21) Conspiracy. See notes to sec. 234,
and observe that that section has been re-
pealed since the decision of cases cited.
Does its repeal permit conspirators to
testify in all cases for each other, as
each can now testify for himself?
(22) Contradiction of witness. Before
evidence can be introduced to contradict
a witness he must first be inquired of as
to such statements with circumstances
of time, place and persons present, and
this rule applies where the witness
sought to be impeached is dead, and
evidence is introduced as to his state-
ments in the former trial ; and state-
ments made by the witness (who is
dead, and whose testimony is repro-
duced) subsequent to the former trial,
showing that the testimony given by
him was false, were not competent. Craft
V. Com., 81 Ky. 250.
(23) "Where the evidence of an ac-
complice is corroborated, he oocupi^
the same position as any other witness
so far as the method of contradicting or
impeaching him is concerned. Com. v.
Craft, 81 Ky. 250.
(24) *• Where a witness states a fact
prejudicial to the party calling him« the
latter may be allowed to show that such
fact does not exist by proving that the
witness had made statements to others
inconsistent with his present testimony."
Blackburn v. Com., 12 Bush 181 ; Champ
V. Com., 2 Met. 17.
(25) **A witness can not be cross-ex-
amined upon facts collateral and irrele-
vant to the issue for the purpose of con-
tradicting him ; his answers to such
facts being conclusive against the party
calling for them ; nor can a witness who
fails to testify to substantive facts be
asked if he has not made statements to
others out of court that such facts exist
for the purpose of proving that he has
made such statements. Loving v. Com.,
80 Ky. 507; Kennedy v. Com., 14 Bush
340; Crittenden v. Com., 82 Ky. 164;
Champ V. Com., 2 Met. 17; Cornelius v.
Com., 15 B. M. 539.
(26) Where a witness on cross-exam-
ination stated that he had not said he
heard deceased make certain statements,
it was error to allow proof that witness
had made such a statement. Com. v.
Hourigan, 89 Ky. 305.
(27) Declarations. Statements of the
accused explanatory of certain acts which
he did shortly before killing were not
competent. Oder v. Com., 80 Kj'. 32;
Terrell v. Com., 13 Bush 246. **Declara-
tions of one conspirator are only admis-
sible against the others when made be-
fore the object of the conspiracy is ac
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§ 1. [Deffemfaot may testify— act 18M.] That in all criminal and
penal prosecutions now pending or hereafter instituted in any of
the courts of this Commonwealth, the defendant on trial, on his
own request, shall be allowed to testify in his own behalf, but his
failure to do so shall not be commented upon, or be allowed to
create any presumption against him or her.
oomplished." MiUer v. Com., 78 Ky.
15 ; Thompson v. Com., 1 Met. 18 ; Hud-
son V. Com., 2 Duv. 581 ; Jones v. Com.,
2 Duv. 554.
(28) A plea of guilty made in an ex-
amining court may be proved by
oral testimony. Rector v. Com., 80 Ky.
468.
(20) Statements of persons who had
agreed to act in concert with the accused
in the event of a hostile meeting be-
tween him and deceased are competent
for the Commonwealth ; and, when such
statements are asked for, the accused
has the right to have the whole of the
conversation at that time. Cornelius v.
Com., 15 B. M. 539; and see Rapp v.
Com., 14 B. M. C14.
(30) Diafram of prenises where killing
occurred may be examined and referred
to by witness who made it. CJom. v.
Hourigan, 8ft Ky. 305.
(31 ) DrMkeooesB it no excise for crime,
but evidence of drunkenness is compe-
tent to show want of malice. Buckhanan
V. Com., 86 Ky. 110; Wilkerson v. Com.,
88 Ky. 29 ; Shannahan v. Com., 8 Bush
463; and where a felonious intent is
necessary to constitute an offense — such
as robbery — the accused may show that
he was too drunk to have any intent
when he committed the act. Keeton v.
Com., 92 Ky. 522.
(32) Dylos declaration. The admission
of proof of dying declarations is not an
infringement of the constitutional right
of the accused to confront his witnesses
face to face ; but, to be admissible, the
declaration must be made in extremis,
and under a solemn sense of impending
dissolution. Walston v. Com., 16 B.
M. 15.
(33) A statement by the deceased as to
how and by whom he was injured, made
about twenty minutes before he became
insensible, in which condition he re-
mained until he died,^ coupled with the
statement *'that he was ruined and a
dead man, unless he got speedy relief,"
was held not to have been made under a
sense of impending dissolution. Adwell
V. Com., 17 B. M. 310.
(34) A declaration of a wounded per-
son, made and reduced to writing two
hours before his death, when he believed
he would recover, if afterward referred
to by him shortly before his death, and
when he knew he must die, and its truth
affirmed, is competent evidence. ** Dying
declarations are not necessarily either
written or spoken. Any method of com-
munication between mind and mind may
be adopted that will develop the thought,
as the pressure of the hand, a nod of the
head or a glance of the eye." Mockabee
v. Com., 78 Ky. 380; and see Young v.
Com., 6 6ush 312.
(35) The admission of dying declara-
tions should be restricted to the act of
killing and the circumstances immedi-
ately attending it and forming a part of
the res gestae. Leiber v. Com., 9 Bush
11 ; and see Collins v. Com., 12 Bush 271 ;
Terrell v. Com., 13 Bush 246 ; Luby v.
CJom., 12 Bush 1.
(36) Dying declaration must relate to
the circumstances attending the crime,
only so much of it is competent as de-
tails the manner of it. Statement that
**he was shot for nothing" was incom-
petent, but, as this was proved by other
witnesses, its introduction was not preju-
dicial. Pace V. Com., 89 Ky. 204; and
see Chittenden v. Com., 10 R. 330.
(37) To be admissible they must be
made when the party has given up all
hope of life ; but whether this be the case
or not may be determined by the sur-
rounding circumstances and by the evi-
dent danger of the deceased, and he need
not in express words or in equivalent lan-
guage declare that he knows he is about
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CONDUCT OF THB JURY TRIAL.
[title VI
§ 2. The defendant requesting that he be allowed to teetify shall
not be allowed to testify in chief after any other witness has
testified for the defense.
[ § 8. If two or more persons are jointly indicted, they may
testify for each other unless a conspiracy is charged in the indict-
ment and proven to the satisfaction of the court. {See next sec.)
to die. Com. v. Matthews, 80 Ey. 287
Peoples V. Com., 87 Ky. 487.
(38) A mere belief of the party that
he would die is not suflSoient to warrant
the introduction of his statements aa a
dying declaration. Vaughan v. Com.,
86 Ky. 431.
(39) If dying declaration has been re-
duced to writing the writing should be
introduced as the best evidence, but if
writing is excluded by objection of ac-
cused then oral evidence is competent.
Statements made at different times may
be proved if otherwise competent. Hines
V. Com., 90 Ky. 04; Blyew v. Com., 91 Ky.
200.
(40) *• To the general rule excluding
matters of opinion or belief an exception
should be made, allowing the declara-
tions of the deceased in behalf of the
accused where they will explain the acts
and conduct of deceased, or show his feel-
ings or motives, intent or belief, when
they are essential to qualify or aggravate
his conduct." Haney v. Com., 6 R. 203.
(41) Defendant may introduce dying
declarations in his behalf, and the state-
ment of deceased that he and accused
were playing and that the shooting was
an accident, Com. v. Matthews, 89 Ky.
287; or that he **waswholly to blame for
the difficulty and brought on the trouble
himself and did not want accused prose-
cuted," is competent. Brock v. Com.,
92 Ky. 183 ; Haney v. Com., 5 R. 203.
(42) Any fact which the deceased
could testify to if alive is admissible
as his dying declaration. 92 Ky. 183.
(43) Upon trial of one accomplice it
is not competent to prove a dying dec-
laration of the other exculpating the one
on trial. Mitchell v. Com., 12 R. 458;
nor can defendant prove that another
person made a dying declaration that he
and not accused committed crime.
Davis V. Com., 05 Ky. 19.
(44) Nor is it any objection that de-
ceased was at the time under influence
of narcotics; such objection would go to
credibility alone. Hays v. Com., 12
R. 611.
(45) nuakui and wife. Wife is a com-
petent witness against her husband
where he is charged with committing or
attempting to commit a crime against
her. Com. v. 8app, 90 Ky. 580, over-
ruling Tumbull v. Com., 79 Ky. 495.
(46) A divorced wife is a competent
witness in behalf of her husband, to
prove facts which came to her knowl*
edge while the marriage relation existed
between them, but which did not come
to her confidentially, nor by means of her
situation as his wife. Elswick v. Com.,
13 Bush 155.
(47) The wife of one of three defend-
ants in an indictment was a competent
witness against the other two, after the
indictment had been dismissed as to her
husband. Ray v. Com., 12 Bush 397.
(48) Under a joint indictment against
several for murder, one of them being
awarded a separate trial, the wives of
the others were competent witnesses for
him. Thompson v. Com., 1 Met. 13;
Cornelius v. Com., 3 Met. ^1.
(49) ** Communication" between hus-
band and wife — meaning of, 90 Ky. 580;
and see as to competency of letters writ-
ten by husband to wife, Scott v. Com.,
94 Ky. 511 ; see further, notes to sec. 606
Civil Code, page 313.
(50) Error in adntttiog incompetent evi-
dence under an indictment for murder
prejudicial, although accused found
guilty of manslaughter. Scott v. Com.,
94 Ky. 511.
(51) False swearias. Evidence of one
witness not sufficient to convict— corrobo-
rating circumstances — written evidence.
Com. V. Davis, 92 Ky. 460.
(52) PMgiit-fdfncd lisailty of accused
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CONDUCT OF THE JURY TRIAL.
477
§ 4. If a conspiracy is charged in the indictment and proven to
the satisfaction of the court, then each defendant named in the
indictment may testify on his own behalf, as above provided in
sections one and two of this act.] {These two sections repealed by
act 189^.)
Gompetent againat him. Basham v.
Com., 87 Ky. 440.
(53) Pordgn records— proper authenti-
cation of. Paustre v. Com., 92 Ky. 34;
Mount V. Com., 1 Duv. 90.
(54) iMftaity. Opinions of non-profes-
sional witnesses as to the sanity of the
defendant may he admitted as evidence,
hut the court should he satisfied hefore
admitting such evidence that the wit-
ness has had an opportunity, hy associa-
tion and ohservation, to form an opinion
as to the sanity of the accused. Brown
v. Com., 14 Bush 398; Cotrell v. Com.,
13 R. 305 ; Massie v. Com., 15 R. 563.
(55) An expert should not he allowed
to express his professional opinion as to
the sanity of the accused unless there is
a hypothetical case or agreed facts
submitted to him. 14 Bush 398; Mc-
Carthy V. Com., 14 R. 385 ; Davis v.
Com., 6 R. 658.
(56) Evidence that the accused has
been from infancy afflicted with som-
nolentia or somnambulism is competent.
Fain v. Com., 78 Ky. 183.
(57) As to moral insanity, see Scott v.
Com., 4 Met. 237; Graham v. Com., 16
B. M. 587; Smith v. Com.. 1 Duv. 224.
(58) Competency of physician who
does not claim to be an expert. Mont-
gomery V. Com., 88 Ky. 509.
(59) Contradiction of physician by
showing former statements in conflict
with his testimony. 88 Ky. 509.
(60) Evidence of insanity both before
and after commission of crime is com-
petent. 88 Ky. 509; Moore v. Com., 92
l^y. 680.
(61) To authorize admission of testi-
mony of insanity of parents or relatives
of accused it should first appear by other
evidence that defendant was insane
when he committed act ; but see this
case for exceptions to rule. Murphy v.
Com , 92 Ky. 485.
(62) Defense for crime — not sufficient
to show alone that accused was insane
when he committed crime ; it must ap-
pear that by reason of his insanity he
did not know right from wrong, or did
not have sufficient will power to control
his actions. 88 Ky. 509.
(63) iKoapeteatevkleice. Exception-
practice. See note 17, sec. 340.
(64) UnitiDf effect •f testinooy by !■•
atfoctloa is proper where the evidence is
only introduced for or competent for
the purpose of contradicting a witness.
Fueston v. Com., 91 Ky. 230 ; Collins v.
Com., 15 R. 691.
(65) Liqiier seWos lUefsily. Evidence
upon which conviction may be had. Ky.
Stat., sec. 2571.
(66) Malice — maasfaiagliter. Incompe-
tent to prove declarations showing mal-
ice under indictment for manslaughter.
Com. V. Matthews, 89 Ky. 287.
(67) Motive for crime. Competent to
show. O'Brien v. Com., 89 Ky. 854;
Martin v. Com., 93 Ky. 189; Carpenter
V. Com., 92 Ky. 452.
(68) Motive of accused —evidence in
his behalf. See Massie v. Com., 15 R.
562.
(69) Part of a statenent belns proved by
defendant it is proper to allow Common-
wealth to prove remainder. O'Brien v.
Com., 89 Ky. 354.
(70) Prisoner la KoHeatiary may testify
in criminal case unless he is disqualified
under sec. 1180, Ky. Stat. Com. v.
Minor, 89 Ky. 555 ; Combs v. Com., 15 R.
660.
(71) Provocatloa. Words tending to ex-
cite passions — competent to reduce crime
to manslaughter. Massie v. Com., 15
R. 562 ; Stott v. CJom., 16 R. —
(72) Qnestlofls that degrade or dlsfnice
may be asked for the purpose of impair-
ing credibility of witness, but he can not
be required to expose himself to punish-
ment or prosecution for crime. Bur-
dette V, Com., 93 Ky. 76. Witness may
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478
CONDUCT OF THE JURY TRIAL,
[titlb VI
§ 224 [MS] Refoattiflf evidence. The parties may then respectively offer
rebutting evidence only, unless the court, for good reason, in further-
ance of justice, permit them to offer evidence upon their original
case.
be asked if he has not been in the peni-
tentiary. Mitchell V. Com., 12 R. 458;
or has not been indicted for robbery.
Roberts v. Com., 14 R. 219.
(73) lUpc. Evidence suflQcient to con-
vict. Malone v. Com., 91 Ky. 807.
(74) Records. The record of a former
trial and conviction is incompetent evi-
dence against the accused on the second
trial for the same offense. Tully v.
Com., 13 Bush 142. See Clark v. Com.,
14 Bush 166, and see Com. v. Foster, 3
Met. 1.
(75) The certificate of the Secretary
of State of Ohio was held admissible to
prove, with other evidence, that a bank
in Ohio was legally incorporated. Mount
v. Com., 1 Duv. 90. But an incomplete
record of divorce proceedings is incom-
I>etent to prove that a party indicted for
bigamy has been divorced. Davis v.
Com., 13 Bush 318, and see Faustre v.
Com., 92 Ky. 34.
(76) On the trial of a person indicted
for an illegal escape from the peniten-
tiary, a certified copy of the judgment
sentencing him to serve in the peniten-
tiary was competent to prove that he
was legally in custody. Hudgens v. Com.,
H Duv. 239.
(77) Reisesta. •* Contemporaneous ex-
pressions or exclamations of the assail-
ant, or of coadjutors, or of the deceased
in cases of homicide, may be proved for
the purpose of illustrating the character
or quality of the act." Bradshaw v.
Com., 10 Bush 576. See Sherley v. Bill-
ings, 8 Bush 147; Rutherford v. Com.,
13 Bush 608. As to declarations of ac-
cused in his favor, see Tipper v. Com.,
1 Met. 6, and see Terrell v. Com., 13
Bush 246.
(78) Cries or exclamations of bystand-
ers in no way acting in concert with
either of the parties to the transaction
do not constitute part of the resgeaice, and
are not compotent. Kaelin v. Com., 84
Ky. 354; 10 Bush 576; Stroud v. Com.,
14 R. 179 ; Omer v. Com., 95 Ky. 353. The
exclamations of persons as to who com-
mitted an offense are competent on the
trial of persons charged with resisting
an oflQcer, who, when wounded, was at-
tempting to make an arrest, and was
aided in ascertaining the offender by the
declarations of persons present. Werner
V. Com., 80 Ky. 387.
(79) Se^ntiofl of witaetses. Permit-
ting the Commonwealth's attorney to
talk with the witnesses after they were
sworn and separated did not prejudice
the accused, as the same permission was
granted to and exercised by his counsel.
Farris v. Com., 14 Bush 362.
(80) It is error to permit the prosecut-
ing witness to remain in the court-room
and testify, when the other witnesses are
excluded, on a trial for murder. Salis-
bury V. Com.. 79 Ky. 425.
(81 ) It is proper to allow a witness for
prosecution to remain in court-room
after he has testified, if his presence
will aid the Commonwealth's attorney.
Galloway v. Com., 7 R. 165; Marcum v.
Com., 8 R. 418 ; and where a witness re-
mains in the court-room contrary to in-
structions and hears witnesses testify,
court may rejector permit his testimony:
and unless it appear that court abused
its discretion its action will not be re-
vised. Haskins v. Com., 8 R. 419.
(82) Slaoderons words. Proper to admit
evidence of to reduce crime to man-
slaughter. Massie v. Com., 15 R. 562.
(83) Testimony on fomer trial— reprodac-
tlon off. When the witness has died since
the former trial of the case, and his tes-
timony on the former trial is reproduced,
evidence that he had made statements
since the former trial that his testimony
then given was false is not competent
The rule that a witness can not be im-
peached until he has been inquired of
concerning the statement applies. Craft
V. Com., 81 Ky. 250.
(84) '*The law is that when the wit-
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COKPUGT OF THE JURY TRIAL.
479
TITLE Vl]
§ 225 [sst] Instractiofls to be io writiiig. The court shall, on the motion
Bess states that he remembers the sub-
stance of all the deceased witness testi-
fied to, both on the direct and cross-ex-
amination, he is a competent witness ;
and when the evidence is heard, if it does
not clearly appear that the witness does
not remember the substance of ali that
the deceased person testified to, the evi-
dence should be permitted to go to the
jury ; but if it be manifest to the court
that he does not so remember, the evi-
dence should be rejected. The testimony
of each witness must be tested by the
same rule, and, if admissible, must stand
by itself." Bush v. Com.. 80 Ky. 244.
(85) Where it is not shown that it Is
impossible to procure the attendance on
the final trial of a witness who testified
at the examining trial, it is not proper to
permit others to recite his testimony on
examining trial. Dye v. Com., 3 Bush 3.
(86) The testimony of an absent wit-
ness on the former trial can not be proved
unless the witness is dead. Collins v.
Com., 12 Bush 271 ; O'Brlan v. Com., 6
Bush 563.
(87) The written statement in the bill
of exceptions of the testimony of a de-
ceased witness on a former trial is not
competent. Eean v.. Com., 10 Bush
190.
(88) Tetttnofly oat off tlae. Evidence in
chief after close of testimony may be ad-
mitted for good cause, but in this case it
was held error. Williams v. Com., 90
Ky. 596 ; court has large discretion and
unless manifestly abused its action will
not be reversed. Cargill v. Com., 93 Ky.
578; Collins v. Com., 15 R. 691.
(89) Threats. It is competent for defend-
ant to prove a threat made by deceased,
although not in terms directed at him if
all the circumstances show that it re-
ferred to him. Sparks v. Com., 89 Ky.
644 ; but opinion of witness as to whom
threats are directed at is not competent.
Johnson v. Com., 9 Bush 224.
(90) Evidence of general threats, not
directed at any particular person, was
held competent in Wbittaker v. Com., 13
R. 504; and see Madison v. Com., 13
R. 313.
(91 ) Threats by deceased to kill mother
of accused were held competent in Ruth-
erford V. Com., 13 Bush 608.
(92) Threats by accused are compe-
tent to show malice. Nichols v. Com.,
11 Bush 575; but not under a man-
slaughter indictment. Com. v. Mat-
thews, 89 Ky. 207.
(93) Uncommunicated threats are com-
petent where it is material to show who
began the difficulty. Miller v. Com., 89
Ky. 653 ; Hart. v. Com., 85 Ky. 77 ; and
where there is evidence of communicated
threats it is competent to prove uncom-
municated threats. Cornelius v. Com.,
15 B. M. 539.
(94) Accused may prove that a person
then dead had told him a short time be-
fore homicide that deceased had threat-
ened to kill him. Carico v. Com.. 7
Bush 124.
(95) ¥€■■€ off offfeose. Verdict of con*
viction will not be disturbed, although
there is no evidence showing county in
which offense was committed. Hays v.
Com., 12 R. 611 ; Com. v. Patterson, 10
R. 167 ; and it is proper after Common-
wealth has announced through, to per-
mit evidence of venue. 10 R. 167.
I 22& (1) Abstract instractions. It
ought to appear, before an instruction
containing merely an abstract proposi-
tion is made the sole ground of reversal,
that it is at least probable that the pris-
oner may have been prejudiced by it.
Nichols v. Com., 11 Bush 575.
(2) The following instruction contains
a mere abstract principle, and should
not be given: ** Where there is a con-
fiict in the testimony of witnesses, the one
side being of an affirmative and the
other of a negative character, the af-
firmative character of the testimony is
preferred, and is entitled to the greater
weight bj' the jury in making up their
verdict. " Lou. Chemical Works v. Com.,
8 Bush 179.
(3) Accoaplice. The court, in instruct-
ing the jury as to the weight that should
be given to the evidence of an accom-
plice, should follow substantially section
241. Craft v. Com., 80 Ky. 349.
(4) After arfmneat begon. It is not im-
proper to give additional or explanatory
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480
OOHDUCT OP THE JURY TRIAL.
[title 71
of either party and before any argument to the jury, instruct the
iDfitruGtions after the argument has oom-
menced. MoDaniel v. Com., 0 Bush
336; West v. Com., 14 R. 217.
(5) AMen mad abetton. It is error to
say that defendant is guilty if he was
present and ** approved of" or "con-
sented to " the killing, but it is proper to
use the words '* encourage, aid or abet"
or the words ** counsel, advise or assist."
True V. Com., 90 Ky. 651 ; Omer v. Com.,
05 Ky. 853 ; and see Plummer v. Oom., 1
Bush 76 ; Chittenden v. Com., 10 R. 380.
(6) AHM. As to proper instruction,
see Young v. Com., 8 Bush 366.
(7) Assaolt and battery— proper instruc-
tions. Cornelison v. Com., 84 Ky. 583.
(8) Aasiiaiiac facts. Instructions that
assume aS a fact certain propositions
which are controverted, and that the
jury have a right to determine, are erro-
neous. Leiber v. Com., 9 Bash 11 ;
Berry v. Com., 10 Bush 15 ; EMgerton v.
Com., 7 Bush 142.
(9) Bigaoiy. For instructions concern-
ing, see Com. v. Jackson. 11 Bush 679.
(10) '•Bfoiifht on dlfUcnlty "—error to
instruct jury that defendant can not
avail himself of right of self-defense if
he brought on difficulty. Allen v. Com.,
86 Ky. 643.
(11) Where right of self-defense is at-
tempted to be denied because of the
fault of the accused the jury should be
instructed that they must believe beyond
a reasonable doubt accused was in fault.
Allen V. Com., 86 Ky. 643 ; Riley v.
Com., 94 Ky. 266; Cockrill v. Com., 95
Ky. 22.
(12) If one by his own wrongful act
makes the harm or danger to himself
necessary or excusaWe he can not rely
on plea of self-defense, but words spoken
in jest or acts not intended or calculated
to provoke can not deprive accused of
right of self-defense, although they may
have caused difficulty. Allen v. Com.,
86 Ky. 643: Wilcoxen v. Com., 15 R.
261 ; Combs v. Com., 15 R. 659.
(13) Ckarader «f accntei. It Is proper
where character of accused has been im-
peached to say to jury that ** evidence of
his bad character Is admitted only to af-
fect his credibility as a witness and for no
other purpose." Hasson v. Com., 10 R.
1054 ; and see note 41.
(14) CiroMstaatlal crUeace ** should be
left, like direct or positive evidence, to be
considered by the jury, and to have such
weight as they deem it entitled to, with-
out caution or suggestion on the part of
the court as to its value or the necessity
to scrutinize it closely." Brady v. Com.,
11 Bush 282.
(15) Coafeiatoai. It is error to instruct
the jury, on the trial of one charged
with murder, that if they believe the ac-
cused confessed the killing, the}* ought
to find him guUty (Butler v. C<»m., 2
Duv. 435); or to assume in an instruction
that a confession has been made. The
jury should be left to determine from the
evidence whether or not any confession of
guilt has been made. Cunningham v.
Com., 9 Bush 149.
(16) An instruction in the language of
sec. 240 Is held to be proper in Wigging-
ton V. Com., 92 Ky. 282.
(17) CoBBe^oeaces of his •wa acts. In-
struction in murder case that a sane man
intends probable consequences of his own
acts del i berately done erroneous. Rogers
V. Com., 16 R. 199.
(18) Correctlaa off fastractioa, after ver-
dict has been announced and while jury
is being polled. Is error. Roberts v. Ctom.,
90 Ky. 654.
(19) Deadly weapoa— instruction defin-
ing. Evans v. Com., 11 R. 551.
(20) Deadly weapon — what is, under
an Indictment for striking or injuring
with, is a question that should be left to
jury if there is room for doubt as to the
whether it was or not a deadly weapon.
Com. V. Duncan, 91 Ky. 592.
(21) Defease af dweUiaf. Proper instruc-
tions. Wright V. CJom., 85 Ky. 123;
Sparks v. Com., 89 Ky. 644; Estep v.
Com., 86 Ky. 39.
(22) Defease ef otters. Proper instruc-
tions in cases of killing In defense of an-
other. Stanley v. Com., 86 Ky. 440;
Chittenden v. Com., 10 R. 330.
(23) Draokeaaess. The jury should not
be told that drunkenness mitigates the
offense. Shannahan v. Com., 8 Bush
463, expressly overruling Smith v. Oom.>
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CONDUCT OF THE JURY TRIAL.
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jury on the law applicable to the case, which shall always be given
in writing.
1 Duv. 324; Blimm v. Com., 7 Bush 320;
and impliedly overruling Gk)lliher ^
Com., 2 Duv. 163; Curry v. Com., 2
Bush 67.
(24) Not proper to give insanity in-
struction where accused was merely
drunk when he committed crime. Wilk-
erson v. Com., 88 Ky. 29; 86 Ky. 110;
nor is it proper to single out from
the evidence the fact of drunkenness
and tell the jury why they are permitted
to hear evidence bearing upon it. Bu-
chanan V. Com., 86 Ky. 110; as to de-
fense of drunkenness in crimes that a
felonious intention is an essential in-
gredient of, as robbery, see Keeton v.
Com., 92 Ky. 522.
(25) Errofleoos instmctloa — failnre to
properly instmct Although Jury found
defendant guilty of manslaughter, when
under the instructions they should have
found him guilty of murder or acquit-
ted, did not cure the error in failing to
give manslaughter instruction. Camp-
bell V. Com., 88 Ky. 402.
(26) Fomercoflvictions — proper instruc-
tions where indictment charges former
convictions. Rector v. Com., 80 Ky. 468.
(27) Qroapins fads. Prominent facts
should not be grouped together in an
instruction. Williams v. Com., 9 Bush
274; and see Elswick v. Com., 13 Bush
155. Nor should an attempt be made to
enumerate the collateral facts which the
evidence tended to prove. ** Instructions
ought, as a general rule, to be based
only upon such facts as must be found
by the jury in order to establish guilt or
to make out a defense." Coif man v. Com.,
10 Bush 495.
(28) locoHpetent evidence cored by. Evi-
dence that the defendant had sold liquor
on a Sunday subsequent to the date of
the warrant was incompetent; but the
error in admitting it was cured by an in-
struction that unl<»ss the jury believed
from the evidence that the defendant
sold liquor on Sunday within the time
covered by the warrant, they must acquit
him. Megowan v. Com., 2 Met. 3. Where
incompetent testimony was admitted, an
(81)
instruction telling the jury to disregard
such evidence ** except so far as it
harmonized with facts afterward de-
veloped " did not cure the error. Dye v.
Com., 3 Bush 3.
(29) Instractiofl to be based oa evidence*
When there is no testimony showing that
the homicide was committed in self-de-
fense it is not necessary to give any in-
struction on that question. Fitzpatrick
v. Com., 81 Ky. 357; Slagel v. Com., 81
Ky. 485.
(30) 'Mmpendins daflger.'* If accused^
when killing occurs, believes and has
reasonable grounds to believe that danger
to him is impending and that there is
no other apparent means of escape, then
he may strike in self-defense. Coffmaa
V. Com., 10 Bush 495 : Radford v. Com.,
9 R. 378; and see Kennedy v. Com., 14
Bush 340.
(31) insanity. Defense of need only be
sustained by a preponderance of the evi-
dence. Moore v. Com., 92 Ky. 630;
Ball V. Com., 81 Ky. 662; and see Gra-
ham V. Cora., 16 B. M. 587; Scott v.
Com., 4 Met. 227.
(32) Where the evidence only showed
that the defendant was illiterate, igno-
rant and passionate, the court properly
refused to instruct the jury on the ques-
tion of insanity. Fitzpatrick v. Com.,
81 Ky. 357.
(33) Instruction that where accused
was insane before committing crime
(the law presumes him insane when he
commits it) is not proper even where the
prior insanity has been established by
an inquisition. Montgomery v. Com.,
88Ky. 509.
(34) See statements of facts authoriz-
ing insanity instruction where person ac-
cused was an infant. McClure v. Com.,
81 Ky. 448.
(35) involuntary manslaoshter— instruc-
tion as to should be given when no
witness saw homicide committed or the
parties on occasion when killing occurred.
Rutherford v. Com., 13 Bush 608.
(36) See, for facts authorizing such
an instruction, Smith v. Com., 93 Ky.
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§ 22i. Jory to withdraw daring wrpmtai oo iistractioflB. On motion of
318 ; and Bush v. Com., 78 Ky. 268 ; Com.
V. Matthews, 89 Ky. 287 ; Smith v. Com.,
93 Ky. 318.
(37) Involuntary manslaughter — defi-
nition of. Conner v. Com., 13 Bush 714 ;
Trimble v. Com., 78 Ky. 176.
(38) Jury shoold accept iutractiou as law
of the case, and although they have the
power they have not the right to disre-
gard the law as expounded to them
by the court. Com. v. Van Tuyl, 1
Met. 1.
(39) Law off wlMie case. Duty of court
to give, even in the absence of a request.
Cook V. Com., 10 R. 222; Trimble v. Com.,
78 Ky. 176 ; Heilman v. Com., 84 Ky. 457.
(40) Less panishaieat thao statate fixed-
instruction prescribing not prejudicial.
Logsden v. Com., 9 R. 431.
(41) Limitlaa effect of testloMay. Where
testimony is only competent for the pur-
pose of contradicting the evidence of
other witnesses the jury should be so in-
structed. Fenston v. Com., 91 Ky. 230 ;
Collins V. Com., 15 R. 691.
(42) Malice. It is error to instruct the
jury that ** malice is implied by the law
from any cruel and unnecessary act done
by one person to another, and from the
deliberate and unnecessary use of a dead-
ly weapon." The jury may infer malice
from the circumstances of the killing,
but an instruction telling them that they
may infer malice from certain acts is er-
roneous. Farris V. Com., 14 Bush 362;
and see Buckner v. Com., 14 Bush 601 ;
Trimble v. Com., 78 Ky. 176; Bush v.
Com., 78 Ky.268; Salisbury v. Com., 79
Ky. 425.
(43) Instruction defining malice as a
** predetermination to do the act with-
out lawful excuse, it being immaterial
how suddenly or recently this predeter-
mination is formed" is proper. Armstrong
V. Com., 15R. .S41.
(44) Mansianahter. *' It is not the prov-
ince of the lower court to weigli evidence
for the purpose of determining whether
a person on trial for his life is entitled to
a;n instruction as to manslaughter. If
there is any evidence tending to show
the homicide is of the degree of man-
slaughter the accused is entitled to an
instruction upon that hypothesis." Bow-
lin v. Com., 94 Ky. 391.
(45) Meaas off escape. The question is
^ot whether the jury believe that de-
fendant had no safe means of escape;
they should be instructed that if d^end-
ant believed that he had no Sjife means of
escape. Oakley v. Com., 10 R. 885.
(46) Mnrder— oMasiaaahter — iavoloatanr
flMBsiaafliter. Where the indictment is
for murder the accused may be convict-
ed of any degree of homicide as fixed by
the common law, viz.. Murder, voluntary
manslaughter or involuntary' man-
slaughter, and the court should, under
an indictment for murder or voluntary
manslaughter, when the facts justify it,
instruct the jury as to involuntary man-
slaughter. Buckner v. Com., 14 Bush
601 ; Bush v. Com., 78 Ky. 268. But
when there is no evidence showing the
existence of facts constituting involun-
tary manslaughter an instruction as to
it should not be given. York v. Com.,
82 Ky. 360 ; Mitchell v. Com., 78 Ky. 219.
(47) When no witness saw the homicide
committed, or the parties on the occa-
sion when the killing occurred, the law
applicable to murder, manslaughter and
involuntary manslaughter should be
given in order to meet any state of facts
the jury may find from the circum-
stances in evidence to have existed.
Rutherford v. Com., 13 Bush 608.
(48) Under an indictment for murder
or manslaughter, an instruction as to
the statutory offense defined in sec 2, art.
4, chap. 29, Gen. Stat, [now Ky. SUt.,
sec. 1151], is not proper. Trimble v.
Com., 78 Ky. 176 ; Buckner v. Com., 14
Bush 601 ; Conner v. Com., 13 Bush 714.
(49) Mnrder to naasiaaaliter— provocatiei
tlwt will redace ''must be such as was
ordinarily calculated to excite the pas-
sions beyond control," and it is proper to
give an instruction in these terms.
Lewis V. Com., 93 Ky. 238; Campbell
v. Com., 88 Ky. 402; Cottrell v. Com.,
13 R. 305.
(50) It is improper to say that the
provocation that will reduce murder to
manslaughter must be ''considerable
provocation." Lewis v. Com., 93 Ky.
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either party, the court shall cause the jury to withdraw from the
238; Slaughter v. Com., 15 R. 230; or
"legal provocation." Payne v. Com.,
1 Met. 370 ; Donnellan v. Com., 7 Bush
676 ; or to say that ** mere words, however
opprobrious or insulting, are not sufB-
c lent provocation to reduce a killing from
murder to manslaughter." Com. v.
Hourigan, 89 Ky. 305.
(51) Mntnal reocoatre. As to instruc-
tions in cases of mutual rencontre, both
parties being in fault at the commence-
ment of the difficulty, or where it is un-
certain which commenced it, see Smaltz
V. Com., 3 Bush 82; Berry v. Com., 10
Bush 15 ; Luby v. Com., 12 Bush 1 ; Bo-
hannon v. Com., 8 Bush 481 ; Minton v.
Com., 79 Ky. 461; Terrell v. Com., 18
Bush 246.
(52) NefUsence, resulting in injury or
death, proper instructions. Com. v.
Matthews, 89 Ky. 287.
(53) Offker^ldlUas of. As to instruc-
tions, where the accused is charged with
killing an officer, see Mockabee v. Com.,
78 Ky. 380 ; Fleetwood v. Com., 80 Ky. 1.
The instructions given in these cases are
set out in full in the opinions.
(54) Where an officer, in attempting
an arrest of one who knows him to be an
officer, is killed, it is murder and the
Jury need not be told that killing must
have been malicious. Dilger v. Com., 88
Ky.550.
(55) Oral iostractkNU. The Code re-
quires that all instructions shall be writ-
ten, and no departure from this rule can
be tolerated; verbal instructions are not
cured by subsequently reducing them to
writing and handing writing to jury.
Payne v. Com., 1 Met. 370 ; nor should
the court orally state to the jury the effect
of testimony. Luby v. Com., 12 Bush 1 ;
or make any statement in presence of
jury of the reasons for decisions upon
questions that might prejudice the
rights of the accused. Coppage v. Com.,
3 Bush 532; Kennedy v. Com., 14 Bush
340.
(56) Presumption that Inttnictimi pre|i-
4lciaL •* The correct rule, we think, is that
every improper instruction should be
taken as prima facie prejudicial to the
accused, subject of course to be shown
otherwise by the evidence in the case."
Barnettv. Com., 84 Ky. 449; Brooks v.
Com., 16 R. — ; but in Galloway v.
Com., 7 R. 165, the court held that erro-
neous instruction as to murder was not
prejudicial when defendant was found
guilty of manslaughter.
(57) Prolix instrnctions. In Smith v.
Com., 1 Duv. 224, thirty -six instructions
were given, and the court intimates that
this great number of instructions would
be cause of reversal ; and see, to same
effect, Moore v. Com., 7 Bush 191.
(58) The court should confine the in-
structions as closely as possible to the
essential facts necessary to make out the
charge or defense. Brady v. CJom., 11
Bush 282 ; and they should be based only
on such facts as must be found by the
jur3' in order to establish the guilt of the
accused or make out his defense. Coff-
man V. Com., 10 Bush 495.
(59) Protectlofl aod defease of fanrily— in-
structions applicable. Campbell v. Com.,
88 Ky. 402 ; Estep v. Com., 86 Ky. 39.
(60) Provocatioa. ** Mere words or
gestures, though thej may excite pas-
sion, do not constitute such provocation
as will of itself extenuate a homicide,
committed with a deadly weapon, and
make it manslaughter." Rapp v. Com.,
14 B. M. 614 ; and see Donnellan v. Com.,
7 Bush 676; Payne v. Com., 1 Met. 370 ;
Williams v. Com., 80 Ky. 313; Oder v.
Com., 80 Ky. 32; Coffman v. Com., 10
Bush 495.
(61) But see notes 49, 50 to this section
modifying rule above stated.
(02) l^pe. As to instructions in prose-
cutions for, see Bethel v.Coto., 60 Ky. 526;
Heilman v. Com., SA Ky. 457 ; Kessler v.
Com., 12 Bush 18; as to degrees of of-
fense and proper instructions as to, see
Bethel v. Com., 80 Ky. 526; Fenston v.
Com., 82 Ky. 549; Young v. Com., 16 R.
496.
(63) Woman, insane or an imbecile,
proper Instruction. Higginsv. Com., 94
Ky. 54.
(64) ReasooabledoaM. See notes to sees.
238,239.
(65) RKldess use offire-anas. See York
V. Com., 82 Ky. 860 ; Chrystal v. Com., 9
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court-room, during any argument upon the law to be embodied in
the instructions.
Bush 669; Goliher v. Com., 2 Duv. 163;
Sparks v. Com., 3 Bush 111 ; Smith v.
Com., 93 Ky. 318.
(66) Retreat not necessary by one sum-
moned to aid an ofBcer. Cockrill v. Com.,
95 Ky. 22.
(67) Rifbts of accused on his own prem*
ises. Proper instructions. Baker v. Com.,
93 Ky. 302; Tingle v. Com., 11 R. 224;
Bledsoe v. Com., 9 R. 1002; Smith v.
Com., 16 R. 112 ; Eversole v. Com., 95
Ky. 623.
(68) Right to prevent intmder ffroni enter-
ing house. Proper instructions. Sparks
V. Com., 89 Ky. 644 ; 85 Ky. 123 ; Estep v.
Com., 86 Ky. 39.
(69) Seif-defense. As to proper instruc-
tions in cases where, at the time the diffi-
culty occurs, the accused is about to be,
or is, assailed by the deceased, and be-
lieves, and has reasonable grounds to be-
lieve, he is in danger of death or great
bodily harm, see Rapp v. Com., 14 B. M.
614; Meridith v. Com., 18 B. M. 49;
Young v. Com., 6 Bush 312 ; Holloway v.
Com., 11 Bush 344; Smaltz v. Com., 3
Rush 32; Lightfoot v. Com., 80 Ky.516 :
Munday v. Com., 81 Ky. 233; Kennedy
v. Com., 14 Bush 340; Minton v. Com.,
79 Ky. 461.
(70) Where the defense is self-defense,
the question is not ** whether the means
used by a defendant to protect himself
from impending danger were in the opinion
of the jury necessary, btii whether they ap-
peared at the time to the defendant himself
to be necessary for that purpose, and the
Instruction on this point should be so
clear and explicit that there can be no
doubt in the minds of the jury." Amos
v. Com., 16 R.— ; Cockrill v. Com., 95
Ky. 22.
(71) Slanderous words sufficient provo-
cation to reduce crime to manslaughter.
Massie v. Com., 15 R. 562 ; Stott v. Com.,
16 R.—
(72) Special finding. By the special
findings the jury were instructed to find
whether the facts submitted to them
were established by a preponderance of
the evidence. The court say: .**The
instructions for special findings as pn*-
sented are not authorized by the Code,
and are contrary to the theory of crim-
inal jurisprudence." Maiden v. Com.,
82 Ky. 133.
(73) Statutory offenses. An instruction
in a penal case, although it pursues very
closely the language of the statute, may
be erroneous. It should be so explicit
and have such connection with the facts
of the case as to enable the jury clearly
to apply the facts to the law as ex-
pressed in the instruction and meet the
evil intended to be remedied. Ritte v.
Com., 18 B. M. 35.
(74) Surgical operation — death ensains.
See Coflfman v. Com., 10 Bush 495 ; Bush
v. Com., 78 Ky. 268.
(75) Threats and assault prior to killing.
As to instructions when there have been
threats followed by an assault prior to
the day of the homicide, see Bohannon
v. Com., 8 Bush 481 ; Holloway v. Com.,
11 Bush 344 ; Phillips v. Com., 2 Duv.
328; Carrico v. Com., 7 Bush 124; Oder
V. Com., 80 Ky. 32 ; Parsons v. Com., 78
Ky. 102; and see Kennedy v. Com., 14
Bush 340.
(76) Threats unexecuted. As to instruc-
tions in cases in which threats were
made previous to the day the homicide
occurred, unaccompanied by any at-
tempt to execute them, see Carrico v.
Com., 7 Bush 124; Bohannon v. Com., 8
Bush 481 ; Young v. Com., 6 Bush 312 ;
Oder V. Com., 80 Ky. 32; Parsons v.
Com., 78 Ky. 102 ; Kennedy v. Com., 14
Bush 340.
(77) Threats off deceased to take life off
accused. See for statement of facts au-
thorizing an instruction presenting this
view of case as a defense. Oder v.
Com., 80 Ky. 32; Haverly v. Com., 95
Ky. 33 ; Com. v. Barnes, 13 R. 163.
(78) Voluntary manslanshter— definition
of. Conner v. Com., 13 Bush 714 ; and the
court should in an instruction define
offense. Com. v. Black well, 93 Ky. 309.
(79) WUIfful strikiuf. Under an indict-
ment for murder the accused can not be
convicted of the offense described in
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§ 227 [SS4] Order of arfmneiit Unless the case be submitted to the
jury without argument, the defendant or his counsel shall commence,
and the counsel for the Commonwealth conclude, the argument to
the jury, unless the defendant's only plea be a former conviction or
acquittal, when the order of argument shall be reversed.
§ 228 [ssft] Arfomeots to alternate. If more than one counsel on each
side argue the case they shall do so alternately.
§ 229 [ssT] Defendant to remain in custody dnrinf felony trial. During the
trial of an indictment for felony, the defendant shall be committed
to and remain in the custody of the proper officer. (But see sec. 183.)
§ 230 IMS] Proceediofs if offense committed ont of Jnrisdiction. K, during
sec. 2, art 4, chap. 29, Gen. Stat, [now
Ky. Stat., sec. 1151], and where the
jury are instructed under that statute,
and the verdict of conviction is found
under that instruction, the accused
should be discharged. Conner v. Com.,
13 Bush 714, overruling Terrell v. Com.,
13 Bush 246, so far as it conflicts with
this opinion.
(80) Wltnessei. An instruction that
•* the jury are the sole judges for them-
selves of the weight of the testimony and
credibility of the witnesses, and may at-
tach such weight to any and all parts
thereof as they may think proper, and if
they believe that any witness or witnesses
have willfully sworn falsely as to any
material fact, they may, if they deem
proper, disregard the entire testimony of
such witness or witnesses" is erroneous.
Barnett v. Com., 84 Ky. 449; Barnard v.
Com., 10 R. 143 ; and should not be given,
but the court will not reverse for this er-
ror if it is not prejudicial. Forman v.
Com., 86 Ky. 605 ; and it is error to direct
attention to the interest of witnesses or
the character of their statements. Wright
V. Com.-, 85iCy. 123.
§227. (1) Arsameot As to the power of
the trial court to limit the argument, the
court say: **The argument of a case
may be reasonably limited, but where the
liberty or life of the citizen is involved it
is a power to be carefully exercised. It
-would, perhaps, be best in capital oases
that this power should never be exer-
cised, or. If so, only under peculiar and
extraordinary circumstances." In this
case the argument was limited to five
minutes, but the court declined to inter-
fere because a. proper exception was not
taken to the ruling of the court. Will-
iams v. Com., 82 Ky. 640 ; Sewell v. Com.,
3R. 86.
(2) improper ars«neat Commonwealth's
attorney is not excusable in making any
statement of facts outside of the evi-
dence which may in the slightest degree
prejudice the rights of the accused.
Cook V. Com., 86 Ky. 663; nor should
he be allowed to make any statement in
conflict with the instructions or ruling
of the court. Bates v. Com., 13 R. 132 ;
and it is improper for the attorney to
read from books or a paper definitions of
malice. Duncan v. Com., 13 R. 195; but
when the attention of the court is called
to the improper argument and the jury
are admonished not to regard it the court
will not reverse on this ground. Cotrell
V. Com., 13 R. 805; Hilton v. Com., 13
R. 158; Handly v. Com., 15 R. 736 ; and
see Cupp V. Com., 87 Ky. 35.
(3) A verdict will not be set aside on
account of misconduct of attorney in ar-
gument where the trial is in other re-
spects fairly conducted and it is appar-
ent that no other verdict could have
been rendered. Hourigan v. Com., 94
Ky. 520 ; nor will Court of Appeals con-
sider objection on account of improper
argrument unless an objection is taken to
it at the time it is being made. O'Brien
V. Com., 89 Ky. 354.
§ 229. Custody off accosed daring felooy
(risl. See notes to sec. 183.
1 2J0. Evidence of venue off crime should
be permitted even after Commonwealth
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486 CONDUCT OF THE JURY TRIAL. [tITLK VI
the trial, it shall appear that the offense was committed out of the
jurisdiction of the court, but within the jurisdiction of some other
court of this State, the court shall stop the trial, discharge the jury,
and take the proceedings in the case directed in sections one hundred
and sixty-six and one hundred and sixty-seven.
§ 231 [88»i Proceedinfs if offense committed oat of State. If it appear that
the offense was committed out of the State, the trial shall be stopped,
and the defendant shall be either discharged or ordered to be
retained in custody for a reasonable time, until the counsel for the
Commonwealth shall hare an opportunity to inform the chief execu-
tive officer of the State in which the offense was committed of the
facts, and for said officer to require the delivery of the offender.
§ 232 isso] Proceediofs if liif tier frade of offense proven. If, during the trial,
the court shall be of opinion that the facts proved constitute an
offense of a higher nature than that charged in the indictment, it
may direct the jury to be discharged, and all proceedings to be sus-
pended, until the case can be re-submitted to a grand jury, and may
order the defendant to be committed, or admit him to bail, to answer
any new indictment which may be found against him for the highest
offense. If an indictment be not found for the higher offense before
the next grand jury are discharged, the court must proceed to try
the defendant on the original indictment. {Degrees of offenses and
provisions concerning^ sees, 262 to 266.)
§ 233 [281] Indictment may l>e qnaslied — resubmission. If, during the trial,
the court be of opinion that the facts charged in the indictment do
not constitute an offense punishable by law, it shall order the jury to
be discharged and the indictment to be quashed, and thereupon may
take the proceedings directed in section one hundred and seventy.
§ 234 isst] Joint defendants, testimony of, for each other. If two or more
persons be jointly indicted for tlie same offense, each shall be u com-
petent witness for the others, unless the indictment charge a con-
spiracy between them. {This section repealed by act 1894,,)
has closed its case for the purpose of objection that two offeDses are stated,
showing what court had jurisdiction. Salisbury v. Com., 79 Ky. 425.
Com. V. Patteisf>n, 10 R. 1C7; and see (2) Conspiracy. What was said or done
Hays V. Com., 13 R Oil. by one of two conspirators after the
1 233. Discbarse of Jary when operates commission of the offense not in the pres-
as an acquittal. See notes 7-11 to sec. ence of or approved by the other is not
176. competent evidence against him. Shelby
§234. (1) Cbarseoff conspiracy to com- v. Com., 91 Ey. 563; but declarations
mit offense with which two or more per- or acts before object of conspiracy is ac-
sons are charged only aggravates offense complished are competent. Miller v.
and does not render indictment open to Com., 78 Ky. 15.
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§ 235 [Mt] Qoestioaa of law to be decided by court All questions of law
arising during the trial shall be decided by the court, and the jury
shall be bound to take the decisions of the court on points of law, as
the law of the case.
§ 236 [st4i View of place offense coomiitted. When, in the opinion of the
court, it is necessary that the jury should view the place in which the
offense is charged to have been committed, or in which any other
material fact occurred, it may order the jury to be conducted in a
body, in the custody of proper officers [and accompanied by the judge,
prisoner and counsel for each side] to the place, which must be shown
to them by the judge, or by a person appointed by the court for that
purpose. The officers must be sworn to suffer no person to speak to,
or communicate with, the jury on any subject connected with the
trial, nor do so themselves, but shall merely show the place to be
viewed, and return them into court without unnecessary delay, or at
a specified time. (Words in brackets inserted by act of 1882.)
§ 237 [sss] Joint defendants, in felony, entitled to separate trial. If two or
more defendants be jointly indicted for a felony any defendant is
entitled to a separate trial.
(3) Observe that this sectioo has been re-
pealed. Does its repeal, taken in connec-
tion with fact that defendant can testify
for himself, authorize joint defendants
to testify for each other in all cases? and
see Adwell v. Com., 17 B. M. 311 ; and
Averbeck v. Hall, 14 Bush 505.
(4) Right of State to introduce oae defead-
aat agalast others. It is suggested, but
not decided, in Downard v. Com., 13 R.
472, that before this can be done there
must either be a verdict of acquittal or
a nolle prosequi entered as to witness. In
Size more v. Com., 10 R. 1, two persons
jointly indicted with accused were intro-
duced for Commonwealth after dismissal
of indictment against them.
(5) Witaesses — coasplnton. If a con-
spiracy is charged in the indictment,
and the proof sustains the charge, a co-
defendant will not be permitted to testify
in behalf of the defendant. Cummings
V. Com.^ 81 Ky. 465.
(6) Defendants jointly indicted are
competent witnesses for each other, al-
though a conspiracy is charged in the
indictment, unless there is such evidence
as in the opinion of the court establishes
with reasonable certainty the existence
of the alleged conspiracy. Christian v.
Com., 13 Bush 264; Laughlin v. Com.,
13 Bush 261 ; 84 Ky. 237.
(7) The act of May 1, 1886, allowing
defendants in criminal cases to testify
does not change the rule determining
the competency of defendants jointly in-
dicted as witnesses, nor give the court
the right to arbitrarily exclude them.
Jeffries v. Com., 84 Ky. 237.
§ 235. Jury to ohey iastractioos. The court
has the right to instruct the jury as to
the law of the case, and it is their duty
to regard such instructions as containing
the law; but if they disregard them in
a criminal case and acquit the accused,
the judge can not for that reason grant a
new trial. Com. v. Van Tuyl, 1 Met. 1.
§ 236. View of place by jury. Pointing
out to jury place where offense was com-
mitted is the giving of evidence and
should not be done in absence of ac-
cused. Rutherford v. Com., 78 Ky. 639 ;
whether jury should be sent to view
premises is a matter in discretion of
trial court. Roberts v. Com., 94 Ky.
499 ; and it is not material at whose sug-
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§ 238 [ss«] Reasonable doabt entitles defendant to acqoittal. If there be a
reaeonable doubt of the defendant being proven to be guilty, he is
entitled to an acquittal.
§ 239 [MT] Conviction to be of lower, if doabt as to degree. If there be a rea-
sonable doubt of the degree of the offense which the defendant has
committed, he shall only be convicted of the lower degree. {Degrees
of offenses defined^ sec, 263.)
§ 240 [sts] Confession ont of court most be corroborated. A confession of a
defendant, unless made in open court, will not warrant a conviction,
unless accompanied with other proof that such an offense was com-
mitted.
gestion jury are permitted to view place.
Austin V. Com., 4 R. 29.
§238. (1) Reasonable doabt — iastmc-
tioas. *'A rational doubt is one growing
out of the evidence, and not a mere chi-
mera existing in the juror's mind."
Graham v. Com., 16 B. M. 587.
(2) In giving an instruction as to
reasonable doubt, *' it seems to this court
that the better practice is to follow as
nearly as practicable the language of the
Criminal Code" as expressed in this sec-
tion. Mickey v. Com., 9 Bush 593;
Ward v. Com., 14 Bush 233. The fol-
lowing instruction was approved ; ** If
the jury, on all the evidence, entertain a
reasonable doubt of the guilt of the de-
fendant, or of an3' fact necessary to
make out his guilt, they should acquit
him ; or if they find him guilty, and en-
tertain a reasonable doubt whether his
crime be murder or manslaughter, they
should find him guilty only of man-
slaughter." Brady v. Com., 11 Bush 283;
Payne v. Com., 1 Met. 370.
(3) This section applies in all criminal
prosecutions. Sowder v. Com., 8 Bush 432.
§ 239. Doabt as to def ree off offfense— in-
stnictioiis. *' Whenever there is evidence
introduced which might be calculated to
raise a reasonable doubt of the degree of
the guilt of the accused, the jury should
be instructed in pursuance of the pro-
vision of the Code just quoted" (sec.
239). Williams v. Com., 80 Ky. 313.
§ 240. (1) Conffessioos. '' Proof of con-
fessions of a party in the presence of the
witness only^ or of him and the adverse
party, although certainly competent
testimony, ought to be weighed with
caution, because it is impossible for the
party to counteract it by other testi-
mony, because the expressions used are
easily misunderstoofi or perverted, either
through mistake or design, and because
not the whole conversation, but only
parts of it, are generally detailed by the
witness. It is the most dangerous species
of testimony held competent by the
law." Becker v. Crow, 7 Bush 198.
(2) ** It is a general rule that confes-
sions, which are induced by hopes or
fears raised by the promise or threats of
the prosecutor or of any person having
authority over the prisoner at the time,
are not considered voluntary, but as
having been made under mental duress,
and therefore not competent." Rector
V. Com., 80 Ky. 468. See Rutherford v.
Com., 2 Met. 387; Young v. Com., 8
Bush 366; Butler v. Com., 2 Duv. 435;
Hudson V. Com., 2 Duv. 531 ; but con-
fessions procured by deception are com-
petent. Wiggington v. Com., 92 Ky.
282.
(3) Although confessions improperly
obtained are not admissible, yet any facts
which have been brought to light in con-
sequence of such confessions may be
properly received in evidence; as the
discovery of a hidden vial containing
poison, charged to have been adminis-
tered by the accused to the deceased.
Jane v. Com., 2 Met. 30; Rector v.
Com., 80 Ky. 468.
(4) Whether the facts prove that a
confession has been extorted by duress
or not is a question of law for the oourt»
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§ 241 [»9j Testimony of accomplice most be corroborated. A conviction can
not be had upon the testimony of an accomplice, unless corroborated
by other evidence tending to connect the defendant with the com-
mission of the offense ; and the corroboration is not sufficient if it
merely show that the offense was committed, and the circumstances
thereof.
and not the jury, to decide. Hudson v.
CJom., 2 Duv. 531.
(5) ** The whole of what the prisoner
said on the subject at the time of mak-
ing the confession should be taken to-
gether. If one part of a conversation is
relied on as proof of a confession of the
crime the prisoner has a right to lay be-
fore the court the whole of what was
said in that conversation ; not being con-
fined to so much only as Is explanatory
of the part already proved against him,
but being permitted to give evidence of
all that was said upon that occasion rela-
tive to the subject matter in issue. If
the witness called to prove the confes-
sion of the prisoner says he does not re-
member all the conversation, and that a
great many things were said in the con-
versation which he did not remember,"
and he does not state that he remembers
the substance of all that was said, his
testimony should be excluded. Berry
V. Com., 10 Bush 15. See Cotfman v.
Com., 10 Bush 495.
(6) Statements of a woman in prosecu-
tion for detaining her, showing that she
was a willing party, do not amount to a
confession. Cargill v. Com., 93 Ky.
578.
(7) ** The manifest meaning of section
240 (238) is, that besides the proof of
any confession a defendant may have
made of his guilt, unless made in open
court, there must, to warrant a convic-
tion, be other evidence conducing to
prove him guilty of the offense alleged,
or in other words, to show that such an
offense has been committed, and not
inconsistent with his guilt, and not
merely some * other testimony' which
might have no tendency whatever to
establish the charge." Cunningham v.
Com., 9 Bush 149, but in Wiggington v.
Com., 92 Ky. 282, this case is criticised
and it is held that it is sufficient cor-
roboration if there is other evidence
that such an offense was committed.
(8) Instmctioa iu the lansaafe of this
sectfon is proper. 92 Ky. 282, impliedly
overruling Cunningham v. Com., 9 Bush
149; and Patterson v. Com., 86 Ky. 313.
1 241. (1) AcconpUce— evidence. An ac-
complice is one of several equally con-
cerned in the commission of a felony. A
conviction can not be had on the testi-
mony of an accomplice unless corrobo-
rated by other evidence, and the corrobo-
ration must extend to every fact neces-
sary to establish the fact that the offense
charged waa committed, and that the
prisoner was the perpetrator. Miller v.
Com., 78 Ky. 15.
(2) If two or more accomplices are
produced as witnesses they are not
deemed to corroborate each other. The
wife of an accomplice who has testified
against the accused may be introduced
as a witness to corroborate the testimony
of her husband. Blackburn v. Com.,
12 Bush 181 ; and see Smith v. Com., 13
R. 369.
(3) **The uncorroborated testimony of
an accomplice is wholly insufficient to
convict the accused of a crime, or of
any of its constituent elements, or to
render admissible any confessions or ad-
missions of the parties which depend
upon and must be preceded by evidence
of a conspiracy unless other evidence
besides that of the accomplice is pro-
duced tending to prove a conspiracy,
and connect the accused therewith, and
evidence merely showing that the offense
was committed and the circumstances
thereof is as insufficient for that pur-
pose as it would be to connect the ac-
cused with the commission of the of-
fenseitself." Bowling v. Com., 79 Ky. 604.
(4) Under an indictment for murder
caused by an abortion a conviction may
be had on the statements of the deceased
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CONDUCT OF THE JURY TRIAL.
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§ 242 [84t] lostnction to Mopdi if corroboratiM oat SMffidest In all cases
where, by law, two witnesses, or one witness with corroborating cir-
cumstances, are requisite to warrant a conviction, if the requisition
be not fulfilled, the court shall instruct the jury to render a verdict
of acquittal, by which instruction they are bound.
§ 243 [ui] Attorney may dismiss indictment— effect of. The att<)mey of the
Commonwealth, with permission of the court, may, at any time
before the case is finally submitted to the jury, dismiss the indict-
ment as to all or a part of the defendants, and such dismissal shall
not bar a future prosecution for the same offense. {See further^ as to
dismissal of indictment^ sees, 159^ 170^ 178.)
alone, as she is not an accomplice.
Peoples V. Com., 87 K3'. 487.
(5) Under indictment for incest, a con-
viction may be had alone upon testi-
mony of woman. Whi taker v. Com.,
16 R. 173.
(6) One jointly indicted with others
will not be permitted to prove the good
character of persons indicted with him.
Omer v. Com., 95 Ky. 353.
(7) The mere fact that a person is
charged with crime in connection with
others does not make him an accomplice;
in order to make him an accomplice it
is necessary that his criminal participa-
tion in the crime charged should be
shown by the evidence. Sizemore v.
Com., 10 R. 1.
(8 ) Acquittal iff corroliontion oot soffflcieot.
Smith V. Com., 13 R. 369 ; Craft v. Com.,
80 Ky. 349.
(9) iflstractioos. ** Where there are no
corroborating circumstances it is the
duty of the court to instruct the jury to
acquit. Before the jury can consider
the evidence of an accomplice as a factor
in the problem of guilt or innocence,
they must first determine that the other
evidence heard proves the existence of
the corroborating facts. If the evidence
claimed to be corroborative does not tend,
when its truth is admitted, to this end,
it is the duty of the court to exclude it
and to direct an acquittal." Craft v.
Com., 80 Ky. 349.
(10) The jury should be instructed in
the language of this section. Craft v.
Com., 80 Ky. 349 ; Patterson v. Com., 86
Ky. 313; Taylor v. Com., 10 R. 169.
§243. (1) IMsnissal off ladictBeit-w-
coastitatloiuU. After the evidence for the
Commonwealth and accused had been
heard, the court, on motion of the Com-
monwealth's attorne}', dismissed the in-
dictment, which was for larceny, and
the case being resubmitted to the grand
jury, another indictment was found
against the accused, the same as the first
one, except that it charged that the
property stolen belonged to A and B, the
first one charged that it belonged to A.
The defendant's plea of former acquittal
to the indictment should have been sus-
tained. The court say: **We are of
opinion that sees. 24.?, 252 of the Crim-
inal Code, in so far as they attempt to
authorize after jeopardy attaches the
dismissal of an indictment for felony so
that it may not operate as a bar to a fut-
ure prosecution for the same offense,
are unconstitutional." Williams v. Com.,
78 Ky. 93 ; Robinson v. Com., 88 Ky. 386.
(2) Consent of accused to discharge of
jury is a waiver of his right to plead
trial in bar of subsequent prosecution.
88 Ky. 386.
(3) The indictment may be dismissed
at any time before trial begins, and it is
not necessary that Commonwealth's at-
torney should file a written statement
when purpose is to resubmit case to
grand jury. Dilger v. Com., 88 Ky. 550.
(4) Where the accused was granted on
his motion a new trial the indictment
under which he was tried may be dis-
missed and a new indictment found.
Wells V. Com., 9 R. 658.
(5) See further, notes to sec. 176 as to
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CONDUCT OF THB JURT TRIAL.
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§ 244 [Ml, Mfi Cases ia wMch fury most be kept together. On the trial of
offenses which are or may be pnnished capitally the jurors, after
they are accepted, shall not be permitted to separate, but shall be
kept together, in charge of the proper officers. On the trial of other
felonies the jurors, before the case is submitted to them, may be per-
mitted to separate, in the discretion of the court, but after the case
is submitted they shall be kept together in charge of an officer. On
the trial of misdemeanors the jurors may be permitted to separate,
at any time until finally discharged, or the court may order them to
be kept together. {See sec. ^61, as to discharge of jury.)
§ 245 [S4S] Offkers in charge of jory to be swont When a jury is kept
together in charge of officers, the officers must be sworn to keep the
jurors together, and to suffer no person to speak to, or communicate
with, them on any subject connected with the trial, and not to do so
themselves.
§ 246 [tu] Admonition of court to Jnry. The jury, whether permitted to
separate or kept in charge of officers, must be admonished by the
when dismissal of indictmeut or dis-
charge of jury operates as an acquittal.
I 244. (1) Kecpios jnry tofetber. An
alleged error in not keeping the jury to-
gether being objected to for the first
time in the motion for a new trial can
not be considered by the Court of
Appeals. Kennedy v. Com., 14 Bush
340.
(2) **It is the duty of the sheriff to
comply with the requirements of the
Code, both in keeping the jury together
and in not suffering any person to speak
to or communicate with them on any
subject connected with the trial. A
substantial performance of this duty
certainly required the jury to be so kept
as in fact to be present with each other,
whether in the same or adjoining and
connected apartments, so situated as to
admit of free and unrestricted com-
munication between them ; and the of-
ficer should himself have remained in
such convenient situation as to observe
and prevent any attempt to tamper with
the jury, or any irregularity on their
part ; but it was not, in our opinion, abso-
lutely required that the entire jury
should have been kept within the same
room, without regard to comfort or prac-
tical convenience, or that the sheriff
should have lodged within the same
apartment with them." Com. v. Shields,.
2 Bush 81.
(3) A verdict will not be set aside in
the absence of any evidence of undue
influence or interference by others merely
because two of the jury may have de-
liberated or conversed apart from the
others in another room after submission
of case. Blyew v. Com., 91 Ky. 200.
(4) Lodging of jury at a hotel on sec-
ond floor, in different rooms along the
hall, in which sheriff locked them at
night, there being no pretense that they
were tampered with, is a sufficient com-
pliance with this section. Minor v.
Com., 5 R. 176.
(5) Objection to separation of jury,
made for first time in a motion for a new
trial, can not be considered ; objection
should have been made at the time.
Wilkerson v. Com., 88 Ky. 29.
§ 245. Officer to be sworn. A failure to
administer to the officer having charge
of the jury the oath as required by this
section will be good ground for setting
aside the verdict and granting a new
trial. But, after being once sworn as re-
quired, it is necessary to administer the
oath again at each adjournment or recess
of the court. Com. v. Shields, 2 Bush 81.
§246. Remark to ]ary by an outsider
that ** defendant ought to be hung*' was
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492 CONDUCT OF THB JURY TRIAL. [tITLE VI
court that it is their duty not to permit anj one to speak to^ or com-
municate with, them on any subject connected with the trial, and
that all attempts to do so should be immediately reported by them to
the court, and that they should not converse among themselves
on any subject connected with the trial, nor form, nor express, any
opinion thereon, until the cause be finally submitted to them.
This admonition must be given or referred to by the court at each
adjournment.
§ 247 [SM. S451 Room lor jury — board aad lodfing. A suitable room must
be provided for the use of the jury on their retirement for delibera-
tion, with suitable furniture, fuel, lights and stationery ; and suitable
food and lodging must be provided, by the sheriff, for the jurors
while they are kept together, and the expense thereof paid by the
trustee of the jury fund and deducted from the compensation of the
jurors.
§ 248 [S4t] Jury to take papers and other thinfs received as evidence. Upon
retiring for deliberation, the jury may take with them all papers and
other things which have been received as evidence in the cause.
§ 249IS47] Information as to law, or evidence after case submitted. After the
jury retires for deliberation, if there be a disagreement between them
as to any part of the evidence, or if they desire to be informed on a
point of law, they must require the officer to conduct them into court
Upon their being brought into court, the information required must
be given in the presence of, or after notice to, the counsel of the
parties. (See practice in civil cases^ page 179.)
§ 250. Sickness of juror before jury completed. If, after a juror has been
accepted, but before the jury has been completed, one of the accepted
jurors become so sick as to prevent the continuance of his duty, the
court may excuse such juror, and complete the formation of the jury
as if he had not been originally accepted.
§ 251 [«48] Discharge of jury — sickness of juror. If, after retirement, one
of the jurors become so sick as to prevent the continuance of his duty,
highly improper and grounds for a new diet was allowed to remain written on
trial, unless it appeared that the rights indictment. Cargill v. Com., 93 Ky. 578;
of accused were not prejudiced. Hilton and see Herrold v. Com., 10 R. 71.
V. Com., 13 R. 158; and see Campbell v. (2) The court _may refuse to permit
IJnnnister, 79 Ky. 205. jury to take to their room depositions
§248. (1) Takjos papers to roon. It is taken for the accused. Baker v. Com.,
proper for jury in retiring to deliberate 13 R. 571.
to take the indictment, and where the ac- § 251. (1 ) DiaclMrse o( i«ry. It was held
cused failed at the time to object he can that sec. 248 of Code of 1854 (same as
not afterward complain that former ver- this section) did not restrict the power of
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TITLB Vl] VBRDICT. 493
or other accident or cause occur, preventing them being kept together,
or if, after being kept together such a length of time as the court
deems proper, they do not agree in a verdict, and it satisfactorily
appear that there is no probability they can agree, the court may dis-
charge the jury ; or if the sickness of a juror be temporary, the court
may permit him to separate from the other jurors, and may place him
in charge of an officer, or not, in its discretion.
§ 252 [S4»] Jury discharged cause to be tried afaio. In all cases if a jury be
discharged, either in the progress of a trial or after the cause is sub-
mitted to them, the cause may be again tried at the same or another
term of the court.
§ 253[sftO] Court always open wliile Jury deliberatiui:. While the jury are
absent, the court may adjourn from time to time as to other business,
but it shall be deemed open for every purpose connected with the
cause submitted to the jury, until a verdict is rendered or the jury
discharged.
§ 254 [861] Final adjonnunent discharges Jury. A final acyoumment of court
discharges a jury.
ARTICLE 6.
VBBDICT.
§ 255. Verdict— how rendered.
§ 266. General or special verdict. _
§ 257. General verdict defined.
§ 258. Penalty, when jury to fix.
§ 259. Special verdict defined.
§ 260. Special verdict — requisites of.
§ 261. Special verdict— how rendered.
§ 262. Conviction for any degree included in or lower than charged.
§ 263. Degrees of offenses specified.
the court to discharge a jury in cases of (2) Discharge of jury because of fail-
necessity, to the causes enumerated in ure to agree in the absence of accused
that section ; but that that section was does not bar another trial. Yarbrough
only intended as an adoption of the legal v. Com., 89 Ky. 151.
rule that a case of actual necessity must (3) See further, notes 7-11 to sec. 176, as
exist before a jury can be discharged ; to when discharge of jury operates as an
and that sec. 249 (same as sec. 252) was in- acquittal ; and see note 1, sec. 243.
tended to apply to such cases as are men- § 251 UocoostltiitloiiaL See note 1 to
tioned in sec. 248 (251), and has direct ref- sec. 243.
erence to it. O'Brian v. Com., 9 Bush 333.
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494
VERDICT.
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§ 264. OffeDses included in offense charged.
§ 265. Conviction can not be of higher degree than one charged.
§ 266. Verdict ag to part of defendants.
§ 267. Polling of jury.
§ 268. Verdict and proceedings on plea of insanit3\
§ 255 [tB«] Verdict — how readered. When a jury have agreed upon their
verdict they must he conducted into court by the officer having them
in charge, their names called by the clerk, and, if they all appear,
their foreman must declare their verdict. (Verdict as to part ofdefts.y
sec. 266 ; polling jury, sec. 267.)
§ 256 [S69] Qeneral or special verdict The jury may render either a gen-
eral or a special verdict.
§ 257 ISM] Qeaeral verdict defiaed. A general verdict —
1. Upon a plea of guilty is " guilty," and affixing the punishment
in cases in which the jury is required to determine the degree of
punishment. {Punishment by labor j Ky. Stat., sec. 1S77.)
2. Upoji a plea of " not guilty," is " guilty," or " not guilty ;"
and if "guilty," fixing the offense, and the degree of the offense j
and the punishment, in cases in which the jury is required to fix
the degree of punishment.
3. Upon a plea of former acquittal or conviction, is " for the
Commonwealth," or " for the defendant," and, if for the Common-
§ 255. (1) Verdict rendered on Sunday is
valid. Meece v. Com., 78 Ky. 586; Bales
V. Com., 11 R. 297.
(2) The prisoner must be present when
verdict is rendered. Temple v. Com., 14
Bush 769; and it may be read by the
clerk in the presence of the jury. Hasson
V. Com., 10 R. 1054.
(3) After a verdict has been announced
and while jury is being polled it is too
late to correct an erroneous instruction
and resubmit case to jury. Roberts v.
Com., 90 Ky. 654.
(4) Trial judge may in presence of
jury alter their verdict in form, but
not in substance, and when correction
is made it should be read to jury and
inquiry made if it is their verdict. Blair
V. Com., 93 Ky. 493 ; Walker v. Com., 7
R. 46.
(5) In Herrold v. Com., 10 R. 70, the
jury in their verdict, after fixing punish-
ment, recommended that accused should
have credit by time he had served in
penitentiary, and the court in its judg-
ment reduced punishment in accordance
with recommendation. Held not preju-
dicial.
(6) When the indictment charges
former convictions for felony, *• it is the ,
duty of the court to so instruct the jury
as to enable them to find the fact of
former convictions separate from their
verdict as to the guilt or innocence of
the accused of the pending charge, as
the court could not give judgment for
the increased penalty without such fact
being found by the jury." Rector v.
Com., 80 Ky. 468.
(7) The failure of member of jury
who signs verdict to style himself fore-
man is immaterial. Thomas v. Com., 13
R. 903.
(8) See further, notes to sec. 258.
§ 256. Special verdict See note to sec.
259.
§ 257. Verdict is snffficieHt which reads
** we, the jury, find the defendant guilty
and fix his punishment at five years in
the penitentiary," the failure to name the
offense is not prejudicial. Hays v. Com.,
12 R. 611 ; and verdict finding defendant
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TITLE Vl] VBRDICT. 495
wealth, fixing the offense and degree of the offense, and the
punishment, in cases in which the jury is required to determine the
degree of punishment. {Pleas defined^ sec. 17^.)
§ 258 [«M] Penalty— when jury to fix. In verdicts of " guilty," or " for
the Commonwealth," the jury shall fix the degree of punishment to
be inflicted, unless the same be fixed by law. {See, to same effect^ Ky.
Stat^ sec. 1136; as to punishment by labor ^ Ky. Stat.y sec. 1377.)
§ 259 [8581 Special verdict defined. A special verdict is a finding of the
facts only, leaving the law arising on the facts to the judgment of the
court, with an ascertainment of the punishment in the event that
the court pronounces a judgment of conviction on the verdict, in
oases in which the jury is required to determine the punishment.
§ 2M [<»•] Special verdict — reqaiiltes of. A special verdict must present
the conclusions of fact as established by the evidence, and not the
evidence of those facts, and the facts must be so presented that the
court has nothing to do but draw the conclusions of law upon them.
§ 261 [«5T] Special verdict — how rendered. The special verdict must be
reduced to writing by the jury, and read to them in the presence of
the court. It shall not be received by the court unless it pronounce
affirmatively or negatively, on the facts necessary to enable the court
to give judgment.
§ 262 [sfts] Cenvktioa for any defree indnded In or lower than charged. Upon
an indictment for an offense consisting of different degrees, the
**guilty as charged in the indictment" by statute the jury must fix the punish-
is sufficient when indictment only ment. Cornclison v. Com., 84 Ky. 583.
<;harge8 one offense. Patterson v. Com., § 2S9. (1) Special verdict Special find-
■86 Ky. 313 ; and see notes to sec. 255. ings in which jury are instructed to And
§25S. (1) CoBBtractioaof lectiea. "This facts from a preponderance of tlie evi-
section means that if the law fixes the dence are unwarranted. Maiden v. Com.,
punishment, leaving no room for discre- 82 Ky. 133.
tion on the part of the Jury as to its kind (2) Where an indictment charges
or extent, then the law does not require former convictions for felony the court
them to fix the degree of punishment in should instruct the jury to find the fact
their verdict. But where an alternative of former convictions separate from
-or indefinite punishment is denounced their verdict as to the guilt or innocence
by law for a given offense, then the jury of the accused. Rector v. Com., 80 Ky.
must be instructed, allowed and required 468.
to fix the kind and extent of the punish- § 2l62. (1) Arsoo. Attempt to commit
ment within the limits prescribed by is degree of. Young v. Com., 12 Bush 243.
law.** Herron v. Com., 79 Ky. 38. (2) Assaalt and battery is a degree of the
(2) Plziag len peaalty thai law antlior- offenseof malicious wounding denounced
lied not prejudicial to accused. Johnson by sec. 1151, Ky. Stat. Com. v. Duncan,
V. Com., 90 Ky. 57; Logsden v. Com., 9 91 Ky. 592; and of the offense of an
R. 431. ** assault with intent to rob." Barnard
(3) Jary to fix peaalty. In all cases v. Com., 94 Ky. 285. See, for an elaborate
where life or liberty is involved or a discussion of the law of assault and bat-
:fine is to be imposed which is not fixed tery, Cornelison v. Com., 84 Ky. 583.
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VERDICT.
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defendant may be found guilty of any degree not higher than that
charged in the indictment, and may be found guilty of any oflenee
included in that charged in the indictment. {Degrees of offenses^ sec.
263; offenses included^ sec. 26i; see further ^ sees. Uf,^ 266; acquittal of
any degree bar^ sec. 177.)
(3) Under an indictment for a simple
assault, it is error to allow proof of a
battery. Every battery includes an as-
sault but every assault does not include
a battery, and battery is an offense of
a higher grade than a simple assault.
Furnish v. Com.. 14 Bush 180 ; and see
Cornelison v. Com., 84 Ky. 583; and un-
der an indictment for an assault with in-
tent to rob accused may be found guilty
of an assault and battery. Barnard v.
Com., 04 Ky. 285.
(4) Breach of the peace. A conviction
for a breach of the peace is a bar to an
indictment for malicious striking and
wounding for the same offense. Com.
V. Bright, 78 Ky. 238; Cornelison v.
Com., 84 Ky. 583 ; and to a prosecution
for an assault and battery, for the same
offense. Com. v. Hawkins, 11 Bush 603.
(5) Convktioii for lower defree. On an
indictment for an offense consisting of
different degrees, the defendant may be
found guilty of any degree not higher
than that charged in the indictment, and
may be found guilty of any offense in-
cluded in the offense charged. Com. v.
Garland, 3 Met. 478.
(0) Def fees defined. Degrees of offenses
mentioned in the Code defined. Conner
V. Com., 13 Bush 714. See Bush v. Com.,
78 Ky. 208; Buckner v. Com., 14 Bush
601.
(7) Homicide— degrees of. "One who has
committed a homicide may be indicted
and tried for murder, at the election of
the prosecuting officer, or he may be in-
dicted and tried for killing by willfully
striking, under sec. 2, art. 4, chap. 29,
Gen. Stat, [now sec. 1151, Ky. Btat.].
Whether he be indicted and tried
for the one or the other, the judg-
ment will bar a second prosecution.
Where the indictment is for murder, the
accused may be convicted of any degree
of homicide as fixed by the common
law, viz.: murder, voluntary man-
slaughter or involuntary manslaughter ;
but under such indictment can not be
convicted of the crime mentioned in
statute «fpra." Buckner v. Com., 14 Bush
601 ; see Conner v. Com., 13 Bush 714.
(8) Lottery. Under an indictment for
promoting a lottery, the defendant may
be convicted of the offense of aiding in
such promotion. Miller v. Com., 13
Bush 731.
(9) Maliciooa stabbiat. Under an in-
dictment for malicious stabbing wiUi in-
tent to kill, the defendant may be found
guilty, either of the felony charged, or
of any lower degree of that offense. Ty ra
V. Com., 2 Met. 1 ; as an assault and bat-
tery, 91 Ky. 592.
(10) Ripe. Under an indictment for
rape upon a female under twelve years of
age, the defendant was convicted under
sec. 6, art. 4, chap. 29, Gen. Stat, [now
Ky. Stat., sec. 1155], of the offense of
carnally knowing her, which was held
to be a degree of the offense charged in
indictment. Fenston v. Com., 82 Ky.
549 ; Young V. Com., 16 R. 496, and under
an indictment for rape defendant may be
found guilty of an assault with intent to
commit that offense. Bethel v. Com., 80
Ky. 526 ; and see Evans v. Com,, 79 Ky.
414; Howell v. Com., 5 R. 174.
(11) Robbery. Under an indictment
for robbery, a conviction for simple lar-
ceny may be had. Com. v. Prewitt, 82
Ky. 240; Sullivan v. Com., 9 R. 420; as
to assault with intent to rob see Barnard
V. Com., 94 Ky. 285.
(12) Shooting. The attempt to shoot
another is but an inferior degree of the
offense of shooting at another without
inflicting a wound, and is included in it,
and a conviction for the former offense
may be sustained under an indictment
for the latter. Usher v. Com., 2 Duv.
394.
(13) The indictment charged a shoot-
ing with the intent to kill and murder.
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TITLB Vl] VBRDICT. 497
§ 243 [Mt] Defrees off offenses specified. The offenses named in each of
the subdivisions of this section shall be deemed degrees of the same
offense, in the meaning of the last section :
1. All offenses of homicide.
2. All injuries to the person by maiming, wounding, beating and
assaulting, whether malicious or from sudden passion, and whether
attended or not with the intention to kill.
3. All offenses of larceny.
4. Arson and house burning.
6. Burglary and house breaking.
6. An offense, and the attempt to commit the offense, if the
attempt be punishable .
7. Offenses which are or may be punished capitally are of the
highest degree ; other felonies are of higher degree than misde-
meanors ; and those punished by imprisonment of higher degree
than those punished by fine alone. If the punishment be the same
in kind, the amount that may be inflicted fixes the degree. {Con-
viction of any degree bar, sec, 177.)
§ 264 [seoi Offenses Included in offense dialled. If an offense be charged
in an indictment to have been committed with particular circum-
stances as to time, place, person, property, value, motive or intention,
the offense without the circumstances, or with part only, is included
in the offense, although that charge may be a felony, and the offense,
without the circumstances, a misdemeanor only.
§ 2(i5 [sei] Conviction can not be of hlf her degree than charged. If the proof
show the defendant to be guilty of a higher degree of the offense
than is charged in the indictment, the jury shall find him guilty of
the degree charged in the indictment. {May be of loioer degree^ sec. 262,)
§ 2M [tet] Verdict as to part of defendants. Upon an indictment against
several the jury may return a verdict of "guilty" as to some, and
"not guilty" or a special verdict as to others; if the jury can not
agree as to all the defendants they may find a verdict as to those
concerning whom they do agree.
§ 267 [••»] Polling of Jury. Upon a verdict being rendered, the jury
may be polled, at the instance of either party, which consists of the
The jury fouDd the defendant guilty of §263. (1) Degrees of offeases. See
shooting with the intent to kill or notes to sec. 262.
wound. Both of the offenses being penal, §264. Offenses laclii4ed in offense
the charge of intent to kill and murder, charged. See Barnard v. Ck)m., 94 Ky.
being the higher, included that of an in- 285, and notes to sec. 262.
tent to kill or wound. Robinson v. Com., § 267. Pdlliog jury. The accused " has
16 B. M. 600. a right not only to see and know that the
(82)
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498 KBW TEIAL AND ARREST OF JUDGMENT. [TITLE VI
clerk or judge asking each juror if it is his verdict, and if one
answer in the negative the verdict can not be received.
§ 2M [iM] Verdict aid proceediass m plea off iasaaity. K the defense be
the insanity of the defendant, the jury must be instructed, if they
acquit him on that ground, to state the fact in their verdict, and
thereupon if the court, after hearing any testimony offered by the
Commonwealth or the defendant, be satisfied that he is insane at the
time the verdict is rendered, it may order him to be taken to a lunatic
asylum. {Trial of sanity of deft. ^ sees. 156^ 287.)
CHAPTER VII.
NEW TRIAL AND ARREST OF JUDGMENT.
% 269. New trial dettned.
§ 270. Effect of new trial.
§ 271. Grounds for new trial.
§ 272. Juror can be examined to show verdict was by lot.
§ 273. Time motion for new trial must be made.
§ 274. Grounds must be in writing and tiled.
§ 275. Arrest of judgment— motion for defined.
§ 276. Arrest of judgment — grounds for.
\ 2TI. Time motion may be made.
§ 278. Court may arrest judgment without motion.
§ 279. Proceedings when judgment arrested.
§ 26f [<•»] New trial defined. A new trial is the re-examination of an
issue of fact in the same court, by another jury, after a verdict has
been given.
§ 270 [>••] Effect of new trial — former verdict not referred to. The granting
of a new trial places the parties in the same position as if no trial had
been had. All the testimony must be produced anew, and the former
verdict can not be used or referred to in evidence or in argument.
whole jury is present assenting to the ment against him. Brown v. Com., 14
verdict, but by polling to demand face Bush 398.
to face of each juror whether the verdict § 270. New trial— effect of. Where a
Is his verdict, and to object to it unless new trial is granted to one who has been
each member of the jury shall answer convicted of manslaughter under an in-
for himself that the verdict is his.*' dictment for murder, he is in the same
Temple v. Com., 14 Bush 769. position as if no trial had been had, and
§ 268. Court of Appeals has no Jarisdlction may be tried again for murder. Com.
to direct an inquiry as to whether or not v. Arnold, 83 Ky. 1 ; and see notes 16-17
the appellant (accused) has become in- to sec. 176.
Bane since rendition of verdict and judg-
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TITLE Vl]
NEW TRIAL AND ARREST OP JUDGMENT.
499
§ 271 [seT] Qroaods for sew trial. The court in which a trial is had upon
an issue of fact may grant a new trial, if a verdict be rendered against
the defendant, by which his substantial rights have been prejudiced,
upon his motion, in the following cases.
1. If the trial in a case of felony were commenced and completed
in his absence.
2. If the jury have received any evidence out of court other than
that resulting from a view as provided in this Code.
3. If the verdict have been decided by lot, or in any other
manner than by a fair expression of opinion by the jurors.
4. If the court have misinstructed or refused properly to instruct
the jury.
5. If the verdict be against law or evidence.
6. If the defendant have discovered important evidence in his
favor since the verdict.
7. If from the misconduct of the jury, or from any other cause,
the court be of opinion that the defendant has not received a fair
and impartial trial.
§ 271. (1) Defeadaat who fails to sur-
reader himself or supersede the judgment
can not enter a motion for a new trial, or
prosecute an appeal. Norton v. Com., 78
Ky. 501 ; and see Wilson v. Com., 10
Bush 526.
(2) Defendant to be present dnrint felony
trial. Sec. 183 and notes; but need not
be present during trial for misdemeanor.
Sec. 184 and notes.
(3) Discharge of Jury dnrint trial. Where
the jury is guilty of misconduct, or a
juror is improperly approached or ad-
dressed, or where the defendant is taken
bv surprise on account of absence of a
witness the proper practice is to ask that
jury be discharged. Joseph v. Com., 8
R. 53 ; Ellis v. Com., 9 R. 824 ; Costigan
V. Com., 11 R. 617.
(4) Errors occurred during trial must be
called to attention of court at the time
they occur or they will be waived, as
where a person said to a juror '*send
him up for five years." Ellis v. Cotn.,
9 R. 824; or made other improper re-
mark. Crockett v. Com., 10 R. 159;
or where the jury were permitted to
separate during trial. Brown v. Com.,
14 Bush 398 ; and this rule applies to all
errors occurring during trial that might
be available as grounds of reversal if
presented to the court, or excepted to
at time they occurred; 14 Bush 398: 13
Bush 246 ; Wilkerson v. Com., 88 Ky. 29 ;
Rankin v. Com., 82 Ky. 424; Merritt v.
Com., 11 R. 16.
(5) Errors waived if presented for first
time in motion. Alleged error in not keep-
ing jury together, or in permitting Com-
monwealth's attorney to make improper
argument ; or objection to juror for want
of statutory qualification, or because
jury have found verdict by lot, can not
be considered if made for first time in
motion for a new trial. Sec. 281; Kennedy
V. Com., 14 Bush 340 ; Brown v. Com., 14
Bush 398; York v. Com., 82 Ky. 360;
Terrell v. Com., 13 Bush 246 ; Redmon
v. Com., 82 Ky. 333 ; but errors not
specified in motion can be relied on an
appeal. Sec note 21, sec. 340.
(6) Jurors can not impeach their verdict.
** It is a well-settled principle, and one
which is applicable to the action of all
juries, that the testimony of the jurors
is not competent to explain the grounds
of their decision or impeach the validity
of their finding." Com. v. Skeggs, 3
Bush 19 ; and see notes 20-24 to sec. 340,
Civil Code.
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NEW TRIAL AND ARREST OF JUDGMENT.
[title VI
§ 272 [ses] Joror caa be examiaed te show verdict was by M. A juror can not
be examined to establish a ground for a new trial, except it be to
establish that the verdict was made by lot.
§ 273 [Sit] Time motioa for new trial must be made. The application for a
new trial must be made at the same term at which the verdict is
rendered, unless the judgment be postponed to another term, in
which case it may be made at any time before judgment.
§ 274. Qronnds most be in writiof and filed. The grounds upon which
a motion for a new trial is made must be stated in writing, and filed
at the time of making the motion.
§ 275 [STO] Arrest of judgment — motion for defined. A motion in arrest of
judgment is an application, on the part of the defendant, that no judg-
ment be rendered upon a verdict against him, or on a plea of guihy.
{See as to practice, sec. 279.)
§ 276 [iTi] Arrest of judgment — inlands for. The only ground upon which
a judgment shall be arrested is that the facts stated in the indictment
do not constitute a public offense within the jurisdiction of the court.
{See farther, sec. 278)
(7) Motion for sngpeads ludfineat A mo-
tion for a new trial suspends the judg-
ment until the motion is disposed of.
An appeal can not be prosecuted while
the motion is pending. Lou. Chemical
Works V. Com., 8 Bush 179.
(8) Surprise. A defendant is not en-
titled to a new trial on the sole ground
of surprise occasioned by a witness,
whom he has called, failing to give
the evidence, or giving the evidence dif-
ferent from that he was expected to
give. See this case for facts authorizing
new trial because of improper conduct
of the Commonwealth's attorney. Ran-
kin V. Com., 82 Ky. 424.
(9) Verdict atainst evideace— not ground
for reversal if there is any evidence to
support verdict. See notes to sec. 340.
§272. Verdict by lot* The action of
trial court in overruling a motion for a
new trial, asked because verdict was ar-
rived at by lot, can not be reviewed by
Court of Appeals. Redmon v. Com., ^
Ky. 333 ; overruling P. & B. R. R. Co.
V. Com., 80 Ky. 147.
§ 274. Qrooflds to be written. On mo-
tion for new trial, the grounds relied on
must be specified in writing. Hopkins v.
Com., 3 Bush 480 ; see note 21, sec. 340.
§ 276. (1) Arrest of ludfineBt. The
power of the court to arrest a judgment
can only be exercised where there is no
public offense charged ; and, although
the alleged offense may be so defectively
stated as to make the indictment bad on
demurrer, still, if any public offense has
been committed by the accused within
the jurisdiction of the court, conceding
the facts alleged in the indictment to be
true, the judgment will not be arrested.
Tully V. Com., 11 Bush 154.
(2) It is not necessary to state the
ground of a motion in arrest of judg-
ment, as there is only one ground. 11
Bush 154.
(8) Motion in arrest of judgment can
only be sustained on the ground that the
facts stated in the indictment do not
constitute a public offense within the
jurisdiction of the court. Ward v. Com.,
14 Bush 233 ; Walston v. Com., 16 B. M.
15 ; Comely v. Com., 17 B. M. 403 ; Com.
V. Hadcraft, 6 Bush 91 ; Weatherford v.
Com., 10 Bush 196.
(4) Judgment of the circuit court in
arresting judgment and dismissing an
indictment for assault with intent to
rob, being reversed by the Court of Ap-
peals on the appeal of the Common-
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BILLS OF EXCEPTION.
501
§ 277 [STfl] Tine notloi my he made. The motion may be made at any
time before judgment, or after judgment during the same term of the
court.
§ 278 IS7S] Coort may arrest Indfiiieflt wHhoat motioiu The court may arrest
the judgment without motion, on observing the defect in the indict-
ment, named in section two hundred and seventy-six.
§ 279 [ST4] Proceedings wlien ]iidgineat arrested. If the court be of opinion,
from the evidence on the trial, that the defendant is guilty of a pub-
lic offense, he may be detained in custody, or on bail, in the manner
and for the time prescribed in section one hundred and fifty-nine and
section one hundred and sixty ; but otherwise he shall be discharged
on the arrest of judgment.
CHAPTER Vm.
BILLS OF EXCEPTION.
§ 280. Decisions subject to exception.
§ 281. Decisions not subject to exception.
§ 282. Exceptions noted of record — preparation of bill.
§ 280 [ST6] Decisiofls 8ab}ect to exception. Upon the trial of criminal or
penal prosecutions, either party may except to any decision of the
wealth, a new trial was awarded. Com.
V. Tanner, 5 Bush 310.
(5) Though several persons be jointly
indicted for distinct offenses charged to
have been jointly committed, when not
susceptible of a joint commission, if the
indictment charged the one on trial in
person with the commission of the of-
fense, the judgment should not be ar-
rested. Weather ford v. Com., 10 Bush
196.
(6) When the indictment is joint, if it
appears in the proof that the party on
trial was the only one concerned in the
commission of the oflfense, there may be
a verdict against him the same as though
be was indicted alone. 10 Bush 196.
(7) Transfer of the case from one
•court to another having jurisdiction, al-
though improperly made, is not ground
for arresting a judgment. Tipper v.
Com., 1 Met. 6.
(8) Effect if motion sttstaiaed— see sec.
379; and White v. Com., 9 Bush 178.
holding that where a judgment of con-
viction is reversed because of error of
court in overruling motion in arrest of
judgment the defendant may be pro-
ceeded against upon a sufficient indict-
ment.
§ 279. Defendant may be detained after
revenal. Where a judgment in a crim-
inal case is reversed upon the ground
that the indictment is defective, and
that the motion in arrest of judgment
should have been sustained ; upon the
return of the case to the circuit court, if
that court is of opinion from the evi-
dence on the trial that the defendant is
guilty of a public offense, he may be pro-
ceeded against as provided in this sec-
tion. Cornelius v. Com., 3 Met. 481 ; 9
Busli 178.
§280. (1) Continuance— refusal tofrant
is subject to exception and a reversible
error when improjierly refused. Bates
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502
BILLS OF EXCEPTION.
[title VI
court by which the substantial rights of such party are prejudiced,
subject to the restrictions in the next section.
§ 281 [tT«] Decisions aot sobject to exceptioii. The decisions of the court
upon challenges to the panel, and for cause, upon motions to set aside
an indictment, and upon motions for a new trial, shall not be subject
to exception.
§ 282 [ST7] Exception noted of record — preparation off frill. The exception
shall be shown upon the record, by a bill of exceptions, prepared,
settled and signed, as provided in the Code of Practice in civil cases.
{Provisions of Civil Code referred tOj sees. 333 to 340; must contain all
instructions, sec. 3^1 > See form of bill and rules, pages 645, 646.)
V. Com., 13 R. 132; and see note 15, sec.
189.
(2) Exception to iostnictloos The at-
torney for the accused, when asked by
the court to indicate his objection to the
instructions, said he would reserve an
exception to all the instructions. The
court say : *' The law makes no distinc-
tion between a general and a particular
exception, as either is sufficient to au-
thorize this court to examine an alleged
error based on an exception taken as in
this case." Williams v. Com., 80 Ky.
313 ; and see further, as to instructions,
sec. 341 and notes.
(3) Evideoce — error io rejectiat or «d-
mlttiof. Where it is objected that the
court rejected evidence that should have
been admitted, the bill of exceptions
should show what the party expected the
witness would testify to, or the excep-
tion can not be considered. Tipper v.
Com., 1 Met. 6; Chrystal v. Com., 9
Bush 669 ; Nichols v. Com., 11 Bush 575.
(4) In criminal as well as civil cases
neither party can rely for reversal upon
an erroneous decision made at the in-
stance of the adverse party unless he ob-
jects to it at the time it is made and
then excepts to the decision, but where
the court acts on its own motion an ex-
ception is sufficient. Branson v. Com.,
92 Ky. 330.
(5) Instnictioiis— exceptions to. Instruc-
tions should be identified in the record,
Weather ford v. Com., 10 Bush 196 ; and
the record should show that it contains
all the instructions. Clem v. Com., 3
Met. 10; Jane v. Com., 3 Met. 18; Mitch-
ell V. Com., 78 Ky. 204 ; and see sec. 341
and notes thereto.
(6) A general exception to all the in-
structions given is sufficient, without
indicating what part of the instructions
is objectionable. Williams v. Com., 80
Ky. 313.
§ 281. (1) Decisloas not subject to excer
tions. Decisions of the court upon a
motion for a new trial, or upon challenges
to the panel, or for c^use, are not subject
to exception ; nor can errors in the
course of the trial, such as to the manner
in which the jury is selected, or objec-
tion to a juror for want of a statutory
qualification, or an error in not keeping
the jury together, or in permitting Com-
monwealth's attorney to make improper
arguments, or because jury arrived at
their verdict by lot, or others of like
character be considered if made for the
first time in the motion for a new trial.
Kennedy v. Com., 14 Bush 340 ; Brown
v. Com., 14 Bush 398 ; Farris v. Com., 14
Bush 362 ; Morgan v. Com., 14 Bush 106 ;
Redmon v. Com., 82 Ky. 333.
§ 282. (1) Bill of exceptions — prepara-
tion of. See notes to sec. 333-^39 Civil
Code. In the absence of a bill of excep-
tions it will be presumed that action of
trial court was correct and that evidence
was sufficient to support verdict ; the
only question that can be considered is
sufficiency of indictment to support ver-
dict. Cook V. Com., 13 R. 702.
(2) In the absence of a part of the evi-
dence the court can not say that error
was committed in receiving or rejecting
testimony. Brooks v. Com., 12 R. 403;
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TITLE Vl] JUDGMENT. 608
CHAPTER EX.
JUDGMENT.
§ 283. Time Judgment may be rendered.
g 284. Judgment must affix the penalty.
§ 285. Defendant must be present at judgment in felony case.
§ 286. Duty of court before rendering judgment.
g 287. Causes defendant may show against judgment — insanity.
g 288. Judgment rendered on two or more convictions.
g 280. Judgment if punishment a fine.
g 290. Judgment of deajbh must fix the day of execution.
g 291. Ck>sts to be included in judgment.
g 292. Judgment in cases of malfeasance or misfeasance.
§ 283 [STej Time judgmeat may he rendered. Upon verdicts in cases of
misdemeanor, and verdicts of acquittal in cases of felony, and upon
trials by the court, and upon a plea of guilty, the court may immedi-
ately render judgment ; but upon verdicts of conviction in cases of
felony, the court shall not pronounce judgment until two days after
the verdict is rendered, unless the court be about to adjourn for the
term, {Forms of judgments and orders , page 673.)
§ 284. Judgment most affix the penalty. The court shall, in its judg-
ment, affix the degree of punishment to be inflicted as found by the
verdict of the jury or fixed by law. {See Ky. StaLy sec^ 1378.)
§ 2S5 [>T9] Defendant most he present at judgment in felony. Judgment shall
not be rendered against a defendant in cases of felony, except in his
presence. If he be in custody, he shall be brought into court by the
proper officer, and if not in custody, a bench warrant shall be issued
for his arrest, similar to the bench warrant on indictments. {See sec.
183 and notes)
Com. V. Runnion, 3 Met. 2; Reed v. had been overruled before judgment was
Com., 7 Bush 641. pronounced. O'Brien v. Com., 89 Ky.
§2S3. (]) Sentence. When verdict is 355.
rendered on the fifth day of the term, (2) When court is about to adjourn
sentence may be pronounced on the sev- for term judgment may be pronounced
enth day. Bush v. Com., 80 Ky. 244 ; on same day that verdict is rendered.
Sunday should not be counted in esti- Lin v. Com., 12 R. 872.
mating the two days that should elapse § 285. Judgment most be eatered. The
between verdict and judgment, and judgment should be entered in full on
where verdict is rendered on Saturday the order book and signed by the judge
judgment should not be pronounced un- during the term at which it is rendered,
til following Tuesday, unless court is The practice of making an entry on the
about to adjourn for the term, but in minute book and signing the minutes is
this case error in rendering judgment on condemned ; and in this case judgment
Monday was not prejudicial, as motion was reversed because the judgment was
for new trial and in ajrest of judgment not entered on the order book and signed
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504 JUDGMENT. ^ [TITLB VI
§ 2M [*••] Doty of court before reiderioi: ]iidfineiit When the defendant
appears for judgment, he must be informed by the court of the
nature of the indictment, his plea and the verdict thereon, if any ;
and he must be asked if he has any legal cause to show why juc^-
ment should not be pronounced against him.
§ 287 [tti] Causes defendaot may show af aiost — insanity. He may show for
cause against the judgment any sufficient ground for a new trial, or
for arrest of judgment; he may also show that he is insane. K the
court be of opinion that there is reasonable ground for believing he
is insane, the question of his insanity shall be determined by a jury
of twelve qualified jurors, to be summoned and impaneled as directed
by the court. If the jury do not find him insane judgment shall be
pronounced. K they find him insane, he must be kept in confine-
ment, either in the county jail or lunatic asylum, until, in the opin-
ion of the court, he become sane, when judgment shall be pro-
nounced.
§ 288 [stt] Jodfnient on two or more convictions. If the defendant be con-
victed of two or more offenses, the punishment of each of which is
confinement, the judgment shall be so rendered that the punishment
in one case shall commence after the termination of it in the others.
§ 289 [sss] Jodfment If punishment a fine. If the punishment of an ofiense
be a fine, the judgment may direct that the defendant be imprisoned
until the fine be paid, specifying, however, the extent of imprison-
ment, which shall not exceed one day for each two dollars of the fine.
{Judgment may direct punishment at hard labor, Ky. Stat. sec. 1377.)
§ 290 [ts«] Jud|:ment of death must fix day of execution. If judgment of
death be pronounced, the day of the execution thereof shall be fixed
in the judgment, and shall not be in less than thirty days after the
judgment. {See further, Ky. Stat., sec. 1137.)
§ 291 [SS61 Costs to be included in judgment. In judgments against the
defendant for a misdemeanor, a judgment for costs, in addition to the
other punishment, shall be rendered, which shall be taxed by the
clerk, and shall be for the benefit of the officers rendering the services.
{Judgment for costs in all cases, noiv see Ky. Stat., sec. 886.)
during the term. Johnson v. Com., 80 convicted under two indictments the
Ky. 377. judgment in second case properly pro-
§ 287. Court of Appeals has no power to vided that the punishment should not be-
direct an inquiry into question of insan- gin until the punishment under first in-
ity of accused after rendition of judg- dictment expired. Evans v. Com., 11 R.
ment in lower court. Brown v. Com., 14 573, changing rule adopted by lower court
Bush 398. in James v. Ward, 2 Met. 271. 8ee as to
§288. Jttdsmeot on two coovictlooi. proper judgment in cases of second and
Where a defendant at the same term was third convictions for felony under sec.
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TITLE Vl] • IXBCUTION. 505
§ 292 [SM] Jo^fnent in cases of matfeasaace or aisfeasaace. When a judge
of the county court, justice of the peace, eheriff, coroner, surveyor,
jailer, county assessor, attorney for the county, constable, city or
police judge or marshal shall be convicted upon an indictment for
malfeasance or misfeasance in office, or for willful neglect in the dis-
charge of their official duties, or for any offense which by the statute
law or Constitution creates a forfeiture of his office, the court shall
render a judgment of removal from office, in addition to the other
penalties and punishment prescribed by law. {See farther y Constitutiany
3ec.227; Ky. Stat.ySec. 374S.)
CHAPTER X.
EXECUTION.
^ 293. Copy of Judgment authorizes sheriff to execute.
§ 294. Death penalty — how executed.
% 295. Suspension of death sentence.
§ 296. Insanity or pregnancy of defendant — proceedings.
§ 297. Death penalty when Governor to fix date for execution.
§ 298. Imprisonment — execution of judgment for.
§ 299. Powers of sheriff conveying prisoner to penitentiary.
§ 300. Sheriff to make written return of execution.
§ 301. Execution to issue on judgment for fine.
§ 302. Execution on judgment against hail.
§ 303. Execution of judgment for abatement of nuisance.
§ 304. Period of confinement for fine.
§ 305. Replevy of fine after confinement— effect of.
§ 293 [ssT] Cofiy of jodgmeat authorizes sheriff to execute. K a judgment of
death or confinement, either in the penitentiary or the county jail,
be pronounced, a certified copy thereof must be furnished forthwith
to the sheriff, who shall thereupon execute it, and no other warrant
or authority is necessary to its execution. {Proceeding upon affirm-
ance of death 'penalty^ sec, 3^6.)
§ 294 [«8tj Death peaalty — how executed. The judgment of death must
be executed by the sheriff on the day designated in the judgment
between sunrise and sunset, by hanging the defendant by the neck
until he is dead. {See further, as to execution, Ky. Stat., sec, 1137.)
1130 Ky. Stat. Chenowith v. Com., 11 sec. 227 of Constitution in Ky. Stat.
K. 501 ; Combs v. Com., 14 R. 245. and notes thereto ; and sec. 3748 Ky.
§ 292. Malfeagance or misfeuaace. See Stat.
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506 EXECUTION. [title \t
§ 29S L««ti SttspeasiM of death seoteace. The onlj officers who shall
have the power of suspending the execution of a judgment of death
are the governor and, in cases of insanity or pregnancy of the
defendant, the sheriff, as provided in the next section ; and, in cases
of appeals, the clerk of the Court of Appeals, as prescribed in title
nine, chapter one, article one.
§ 2% [tto] lasaalty or prefaaacy of defeadaat — proceediags. If the sheriff be
satisfied that there are reasonable grounds for believing that the
defendant is insane or pregnant, he may summon a jury of twelve
persons on the jury list, drawn by the clerk, who shall be sworn by
the sheriff well and truly to inquire into the insanity or pregnancy
of the defendant, and a true inquisition return ; they shall examine
the defendant and hear any evidence that may be presented ; and by
a written inquisition, signed by each of them, find as to the insanity
or pregnancy. Unless the inquisition find the defendant insane
or pregnant, the sheriff shall not suspend the execution ; but if the
inquisition find the defendant insane or pregnant, he shall suspend the
execution and immediately transmit the inquisition to the governor.
§ 297 [sti] Death peaalty — whea foveraor to fix day for execatloa. AVhen-
ever a judgment of death has not been executed on the day appointed
therefor by the court, from any cause whatever, the governor, by a
warrant under his hand and the seal of the State, shall fix the day of
the execution, which warrant shall be obeyed by the sherift", and no
one but the governor can then suspend its execution.
§ 298 :sts] Imprisoameat — execntioa of ]ad|:aieat. The sherift', in executing
a judgment of confinement, shall deliver the defendant, with a certi-
fied copy of the judgment, to the keeper of the penitentiary, or to
the jailer, according to the judgment.
§ 299 :st8i Powers of sheriff coaveyiaf prisoaer to peaiteotiary. In carrying
the defendant to the penitentiary, the sheriff shall have all the pow-
ers of preventing an escape, of resisting an effort to rescue the
defendant, of recapturing him, and of summoning persons to his aid,
that he would have in executing a warrant of arrest in his county.
§ 300 L>t4i Sheriff to make writtea retnra of execntioa. The sherift' shall
make a written return of the execution of the judgment of death or
imprisonment, and file the same with the clerk of the court in ten
days after such execution.
§ 301 [st5j Execatioa to issue oa jndinneat for fiaes. Upon judgments for
§ 301. Capias. A capias pro fine may which it was issued should be taken by
issue upon a judgment without an order the officer to the jail of the county from
of court. A party arrested under a which it issued. Long v. Wood, 78 Ky.
capias in a county other than that from 392.
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TITLE Vl] EXXCVTIOS. 507
fines, whether rendered on indictments, penal actions or otherwise,
writs of execution, as provided in the General Statutes [now Kentucky
Statutes] may be issued against the person or property of the
defendant. {Form of executions^ page 677 ; form of capias^ page 677 .)
§ J02 [tte] Execntion 00 ]ad|:meiit ai^alost ball. Upon judgments against
bail, only such execution shall be issued as may be issued upon judg-
ments in civil actions for debt. {Form of execution^ page 6SS.)
§ 303 [ttT] Execntioii of jndfnent for aliateaieiit of oaisaiice. A certified
copy of a judgment for the abatement or removal of a nuisance, or
for any other thing than the payment of money by the defendant,
when delivered to the sheriff', shall authorize and require him to
execute it ; and he shall make a return of his executing it, and file
the same with the clerk of the court, in sixty days after a copy is
delivered to him.
§ 304 [sts] Period of coofioemeiit for fine — effect of. The defendant shall
not be held in confinement under an execution for a fine for a longer
period than at the rate of one day for each two dollars of the fine ;
but such confinement shall not discharge the fine, which thereafter can
only be collected by proceedings against the defendant's property.
The provisions of this section shall not apply to judgments in city or
police courts, which may be discharged by confinement in the city
work-house, according to the provisions of the special statutes regu- .
lating them. {Punishment by hard labor ^ see Ky. Stat,j sec. 1S77 ;
imprisonment for costs, Ky. Stat., sec. 886; for acts relating to police
courts, pageSSl .)
§ 305. Replevy of floe after cooflnenient—- effect of. In all cases in which
a person is confined in a jail or work-house for the non-payment of
a fine, it shall be lawful for the clerk of the court in which the judg-
ment was rendered to take bond from such person with good surety
for the payment of the fine and costs. The bond shall be for the same
time and substantially of the same form, and shall have the same force
and effect as a replevin bond. The defendant upon the execution of
such bond, and procuring a certificate of its execution, shall be dis-
charged by the jailer or keeper of the work-house, if detained for no
other cause. The clerk shall have fifty cents for taking the bond which
shall be included in the amount thereof. {Form of bond^page 64^1 ;
hard labor sentence may be replevied, Ky. Stat,, sec. 1380.)
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608 PROCEEDINGS IN POUOE OB CITY COURTS. [TITLE Vn
TITLE vn.
PROCEEDINGS IN POLICE OR CITY COURTS.
[See sec. 2911, Kentucky Statutes, for provisions relating to police courts in cities
of the first class ; sec. 3146 for second class ; sec. 3352 for third class ; sec. 3510 for
fourth class ; sec. 3651 for fifth class ; sec. 3710 for sixth class ; and note how pro-
visions of this title are changed ; also see jurisdiction of these oourts, page 551 of
this Code.]
§ 306. Indictment, when not necessary.
§ 307. Grand jury, provision as to.
§ 308. Term of court may be fixed by judge.
§ 309. Proceedings when defendant brought before the court.
g 310. Summons to be issued against offender.
§ 311. Summons— requisites of, to whom directed.
§ 312. Warrant of arrest may be issued by judge.
§ 313. Time prosecutions stand for trial.
§ 314. Summons, how executed.
§ 315. Witnesses' attendance — how secured.
§ 316. Postponement of trial.
g 317. Provisions of title six apply.
g 318. Written pleadings not necessary if no indictment.
g 319. Trial of issues of law and fact.
g 320. Clerk of court— laws relating to.
g 321. Police courts defined.
g 822. Louisville City Court.
§ 306 [>tf ] Ifldictment, whea not necessary. No indictment shall be neces-
sary in prosecutions for violation of the by-laws or ordinances of a city
or town, nor in other prosecutions in police or city courts, unless the
punishment of the offense exceed a fine of one hundred dollars or
confinement for thirty days. (Jurisdiction of^ sees. 13, 19, and page
551. See further, sec. 10.)
§ 307 [»ooi Qraod jury — provision as to. If the police or city court have
jurisdiction of offenses which can only be prosecuted by indictment,
the court may order the peace officer, whose duty it is to attend
the court, to summon a competent number of grand jurors, the
qualifications of whom shall be as prescribed in the General Statutes,
[now Kentucky Statutes], and who shall be sworn, and have the
powers and duties prescribed in chapter one of title six.
§ 308 rsoi] Terms of court may be fixed by iudge. The judge of the police
or city court may, by orders entered on its minutes, fix terms for its
8es8ions,to which process shall be returnable, but may hold the court
at any time for the transaction of business brought before him.
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TITLE VU] PROCBBDINQS IN POLICE OR CITY COURTS. 609
§ J09 [ft] Proceedinss whea defeodaot brought befere conrt. When a person
has been arrested and brought before the city court or the judge
thereof, charged with an offense within the jurisdiction of such
court, and not requiring an indictment, he shall be forthwith tried,
or at the discretion of the judge, held to bail for his future appearance
for trial, or discharged from custody. {Form of bail bond, page 667.)
§ 310 [ft] Samnoiis to be issned against offender. Upon information given
by a peace officer, or by a private person, on oath, to the clerk of
the court, that an offense within the jurisdiction of such court, and
not requiring an indictment for its prosecution, has been committed,
the clerk shall issue a summons against the offender.
§ 311 [8M] Summons — requisites of, to whom directed. The summons men-
tioned in the last section shall command the peace officer to whom it
is directed to summon the defendant, naming him, to appear in the
court, on a day to be named in the summons, to answer the charge
made against him, of having committed an offense, naming or briefly
describing it, and to return the summons on a day to be named. It
shall be signed by the clerk, and directed to the marshal of the town
or city, but may be executed by any peace officer of the city or county.
(Form of summons, page 659.)
§ 312 [306] Warrant of arrest may be issned by jndfe. Upon information on
oath made to the judge of the court, he may order a warrant of arrest
to be issued, which shall be similar to the summons, except in the
command to arrest the defendant, instead of summon him. (Form of
warranty page653,)
§ 313 isoej Time prosecutions stand for trial. All prosecutions in such
courts shall stand for trial immediately, if the defendant be in custody,
or on bail for the offense charged, or on the day to which the defend-
ant is summoned to appear, provided the summons be executed within
the limits of the court's jurisdiction one day, or elsewhere ten days, be-
fore the day on which he is warned to appear. If not executed as above
provided, the trial shall be postponed to a day to be fixed by the court.
§ 314 [SOT] Summons, how executed. The summons shall be executed by
§ 312. (1) Warrant— form of. It is not (2) The same strictness is not required
necessary that a warrant charging the in justice's court as is in circuit court.
seUing of liquor in violation of an ordi- Wade v. Com., 3 R. 442.
nance should specify the quantity sold or § 314. Service of sominons on corpora-
the place where it was drunk ; nor is an tion is sufficient if it is read to the offi-
erroneous statement as to the date ma- cer or agent of the corporation upon
terial ; proof may be heard as to any whom a summons should be served. L.
sale within the time allowed for the pros- & N. R. R. v. Board of Trustees, 8 R.
ecution of the oflfense prior to the date of 59 ; see, for form of summons, sec. 146
the warrant. Megowan v. Com., 2 Met. 8. and page 652.
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610 PROCBBDINOS IN POLICE OR CITY COURTS. [TITLE VH
the officer by reading it to the defendant, or stating to him its con-
tents; and, if required, the officer shall show it to him.
§ 315 [tot] Wttnesses' attendance, how secnred. The clerk shall issue
subpoenas for witnesses at the request of the officers of the city, or of
the defendant, and the court may compel their attendance in the
manner and by the process prescribed in the Civil Code. (Form of
subpoena and attachment^ page 666 ; provisions of Civil Code referred
tOy sec. 587.)
§ 316 [SM] Postpooemeat of trial. The court may, for good cause, grant
continuances or postponements of the trial.
§ 317 [tioj Provisions of title six apply. The provisions of this Code in
title six, so far as applicable, shall govern the proceedings of police
or city courts, except as provided in this title.
§ 318 [811] Written pleadinfs not required if no indictment Ko written
information or pleadings are required in prosecutions in which an
indictment is unnecessary.
§ 319 [ti<] Trial of issues of law and fact The issues of law and fact
shall be tried by the judge, in all cases in which the only punishment
is a fine of sixteen dollars or less; in other cases the defendant may
demand that issues of fact be tried by a jury.
§ 320 [SIS] Clerk of court — laws relating to. If the judge act as the clerk
of the court, the provisions of this title as to the clerk shall apply to
him.
§ 321 [S14] Police courts defined. Mayors' courts, and courts held by
chairman of trustees of towns, are police courts in the meaning of
this Code. {Local jurisdiction of^ sec, 19.)
§ 322 IS16] Louisville City Court The laws regulating the proceedings in
► the Louisville City Court, and prescribing the powers and duties of
the officers of said court, shall not lye changed by the provisions of
this title, but remain in full force ; and the provisions of this title
shall only apply to said court so far as they are consistent with the
existing laws regulating said court. {For laws relating to LouisviUe
City Courty see Ky. Stat.j sec. 2911.)
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TITLB Vni] PROCBBDINOS IN JUSTICBS' COURTS. 511
TITLE YUI.
PROCEEDINGS IN JUSTICES' COURTS.
[See Kentucky Statutes sec. 1093, and page 550 of this Code for jurisdiction of
justices' courts.]
§ 323. Proceedings when accused brought before justice.
§ 324. Disposition of defendant if trial postponed.
§ 325. Bail or bond for good behavior may be required.
§ 326. Summons or warrant — when justice may issue.
§ 327. Warrant of arrest — when may issue.
§ 328. Summons and warrant, form of.
§ 329. Witnesses' attendance, how secured,
§ 330. Pleadings may be oral.
§ 331. Trial of issues of law and fact.
§ 832. Jury trial—summoning jury.
§ 833. Provisions of title six apply.
§ 323 [tie] Proceediogs wheo accused brouf ht before justice. If a person be
brought, or, in obedience to a bail bond, come before a justice of the
peace charged with the commission of an offense within the jurisdic-
tion of his court, as prescribed in title two, the justice shall forthwith
proceed to the trial of the charge, or for sufficient cause may post-
pone the trial to a future day. {Jurisdiction of justice^ sees. 13, IS;
howjustiee to }yroceed in felony case, sec. 71.)
§ 324 [SIT] Dispositioo of defeodaot if trial postponed. If the trial be post-
poned, the defendant may be committed to the custody of a peace
officer, or to jail, or discharged upon bail or without bail.
§ 325 [Sit] Bail or Iwad for food behavior may be required. It shall be the
duty of the justice to require bail of the defendant upon its being
made to appear that, unless bail be required, he will probably escape
punishment, or that his discharge without bail would endanger per-
sons or property; in which latter case the justice may also require
security for the peace or for good behavior. {Form of bail bond,
page 657 ; bond for good behavior, page 661 ; other provisions concern-
ing security for good behavior, sees, 382 to 394-)
§ 326 [•!•] Summons or warrant — when justice may issue. If from his per-
sonal knowledge, or from information given to him on oath, a
justice be satisfied that there are reasonable grounds for believing
that a person has committed a public offense within the jurisdiction
of his court, he shall either issue a warrant of arrest or a summons
against such person.
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512 PBOCBEDINOS IN JUSTICES' OOUBTS. [TITLB Vm
§ 327 [8s«] Warrant of arrest, wheo may issue. The warrant of arrest shall
not be issued unless the offense charged be one of actual or appre-
hended violence to person or property, accompanied with a breach
of the peace; or the justice be satisfied that there are reasonable
grounds for believing that the defendant will escape punishment
unless arrested.
§ J28 [tsi] SmniBoas and warrant, form of. The warrant of arrest and
the summons shall be similar to those prescribed in title seven.
(Form of warranty page 66S ; summons, page 65S.)
§ 329 [ssa] Witnesses* attendance, Imw secured. The justice shall issue
subpoenas for witnesses and for the production of documentary
evidence, and enforce their attendance, or its production, as prescribed
in the Civil Code. {Form of subpoena^ page 666 ; aitachmenty page 655;
provisions of Civil Code referred to, sec. 637)
§ 330 [tss] Pleadinfs may be oral. Ko written information, nor plead-
ings, shall be required in prosecutions in justices' courts.
§ 331 [ts4] Trial of issues of law and fact The issues of law and fact shall
be tried by the justice, in all cases in which the only punishment is a
fine of sixteen dollars or less. In other cases the defendant may
demand that issues of fact be tried by a jury.
§ 332 [8«5] Jury trial — summoniuf jury. Upon a jury trial being lawfully
demanded, the justice shall order a peace officer to summon a suffi-
cient number of qualified jurors, from which the jury may be formed.
§ 333 [sse] Provisions of title six apply. The provisions of title six, so
far as applicable, shall govern the trial, verdict, judgment and exe-
cution in prosecutions in justices' courts, except as provided in this
title. {Form of capias pro fine, page 677.)
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ITILB IX] APPEALS TO THE COURT OF APPEALS — ^FELONIES.
518
8 334.
§335.
§ 336.
§ 387.
§ 338.
§ 339.
8 340.
§ 341.
§ 342.
§ 343.
§ 344.
§ 345.
§ 346.
TITLE IX.
APPEALS.
Chaftbb I. To THE Court of Appeals, 834
II. To CIRCUIT COURTS, 363.
CHAPTER I.
TO THE COURT OF APPEALS.
Article 1. In felonies, 334.
2. In misdemeanors, 347.
3. General provisions, 357.
ARTICLE 1.
IN FELONIES.
Appeal in felony cases.
Appeal by defendant or Commonwealth.
Time and manner of appealing — suspension of Judgment.
Time and manner of appealing by Commonwealth.
Summons or notice not necessary.
Judgment of acquittal, when not to be reversed.
Errors that authorize reversal of judgment of conviction.
Instructions to appear in bill of exceptions.
Death of accused terminates appeal.
Eflfect of appeal by defendant in penitentiary.
Removal of defendant from penitentiary after reversal.
Credit for confinement on second conviction.
Affirmance of death penalty — proceedings.
§ J34 [sst] Appeal in felooy cases. The Court of Appeals shall have
appellate jurisdiction in prosecutions for felonies, subject to the
restrictions contained in this article.
§334 (1) Appeal— escaped prifooer cao
■ot proeecote. An escaped prisoner con-
victed of a felony will not be permitted
to prosecute an appeal to reverse the
Judgment of conviction. Wilson v.
Com., 10 Bush 520 ; and see Norton v.
Com., 78 Ky. 501.
(2) Jarisdictloa of Cenrt of Appeals la
aiisdeaeaaorB. See sec. 347.
(3) Rifbt of appeal U act a coastitatloBal
rifht and the accused desiring to appeal
(88)
must conform to the rules prescribed by
law. Turner v. Com., 80 Ky. 78; the
revisory jurisdiction of Court of Ap-
peals is conferred by statute. Ruther-
ford V. Com., 78 Ky. 689.
(4) Where an appeal was dismissed
for want of prosecution it will not on
motion of the prisoner be reinstated on
docket after lapse of several years. 89
Ky. 78.
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514 APPEALS TO THE COUKT OP APPEALS — FELONIES. [TITLE IX
§ US [tu, *«•] Appeal by deffeaiaat or C^mmomweaML An appeal shall only
be taken on a final judgment, except on behalf of the Common-
wealth. An appeal by the Commonwealth from a decision of the
circuit court shall not suspend the proceedings in the case. The
decision of the Court of Appeals shall be obligatory on the circuit
courts, as being the correct exposition of the law.
§ U^ [Mt] TiflM MMi wummer of ippealiif — ngpfsJoa of jadCBeat * An appeal
may be taken by the defendant in the following manner only :
1. The appeal must be prayed during the term at which the
judgment is rendered, and the prayer noted on the record in the
circuit court. The appeal shall be granted as a matter of right.
2. When an appeal is prayed the court shall, if the defendant
desire it, make an order that the execution of the judgment be sus-
pended until the expiration of the period within which the defend-
ant is required to lodge a transcript of the record in the clerk's
office of the Court of Appeals. After the expiration of such period
the judgment shall be executed unless the defendant shall have filed
in the clerk's office of the court rendering the judgment, the cer-
tificate, as provided in subsection three of this section, that the
appeal has been taken, or a copy of an order of the Court of
Appeals granting further time to lodge the transcript.
8. The appeal is taken, by lodging in the clerk's office of the
Court of Appeals, within sixty days after the judgment, a certified
transcript of the record. The clerk of the Court of Appeals shall
thereupon issue a certificate that an appeal has been taken, which
shall suspend the execution of the judgment until the decision upon
the appeal.
§ M. (1) Defeadaot can only appeal a felony case is not filed within sixty
from final judgment. Smith v. Com., 5 days after judgment, and no order made
R. 851. within that period extending the time
(2) Mistrial — appeal by Coaaoawealtli for filing, the Court of Appeals is with-
may be taken for the purpose of review- out jurisdiction to try the appeal. Nor
ing the decisions of the trial court in ad- has the Court of Appeals power, after
mitting and rejecting evidence and in the expiration of the time provided by
giving and refusing instructions. Com. law for filing the transcript, to make an
V. Matthews, 89 Ky. 287; and see sec. order extending the time. Medcalf v.
837 and notes. Com., 84 Ky. 485 ; overruling Mackey v.
(3) New trial (ranted by lower court Com., 80 Ky. 345.
Commonwealth may appeal to have lawof (2) To give Court of Appeals jurisdic-
case settled before another trial, but can tion in felony case, a certified transcript
not interfere with action of court in of the record must be filed in the clerk's
granting a new trial. Com. v. Hourigan, office within sixty days after judgment ;
80 Ky. 305. unless the court extend the time the fact
I M, (1) Appeal by defendant — when that record was mislaid by clerk and not
record to be filed. When the transcript in found until after sixty days can not con-
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TITLE IX] APPEALS TO THE COURT OF APPEALS — FELONIES. 515
4. If time be given, beyond the term at which the judgment is
rendered, to present a bill of exceptions, the transcript of the record
may be filed in the clerk's office of the Court of Appeals, within
sixty days after the bill of exceptions is made a part of the record.
§ 337 [8S1] Time and maiuier of appealiof by Comnoawealtli. If an appeal on
behalf of the Commonwealth be desired, the Commonwealth's attor-
ney shall "pray the appeal during the term at which the decision is
rendered, whereupon the clerk shall immediately make a transcript
of the record and transmit the same to the attorney general, or
deliver the transcript to the Commonwealth's attorney, to be trans-
mitted by him. If the attorney general, on inspecting the record,
be satisfied that error has been committed to the prejudice of the
Commonwealth, upon which it is important to the correct and uniform
administration of the criminal law that the Court of Appeals should
decide, he may, by lodging the transcript in the clerk's office of the
Court of Appeals, within sixty days after the decision, take the appeal.
§ 338 [tts] Summoiis or notice not necessary. 'So summons nor notice
shall be necessary upon an appeal.
§ 339 [8SS] Judgment of acquittal — when can not be reversed. A judgment
in favor of the defendant which operates as a bar to a future prosecu-
tion for the offense shall not be reversed by the Court of Appeals.
(When judgment sustaining demurrer a bar, sec. 169.)
§ 340 [SM] Errors tliat authorize reversal of judgment of conviction. A judg-
fer jurisdiction. Stratton v. Com., S4 but must determine for itself whether
Ky. 100. the indictment is good or bad. It is the
(3) When time beyond the term to indictment and not the opinion of the
prepare and present bill of exceptions is lower court that must determine whether
given, if the transcript is filed within the judgment on demurrer shall operate
sixty days after the bill of exceptions is as a bar. Com. v. Cain, 14 Bush 525 ;
made part of the record it will be in and see Com. v. Bruce, 79 Ky. 560.
time. Strassel v. Com., 80 Ky. 525. (2) Cross-appeal can not be taken by
(4) Mandate in crinioal case, in case of the Commonwealth, but on the appeal of
affirmance, may issue immediately. Nel- the accused the court will pass on ques-
son V. Com., 94 Ky. 594. tions excepted to by the Commonwealth.
§ 337. (1) Appeal by Cooioioaweatth. On Terrell v. Com., 13 Bush 246.
the appeal of the Commonwealth in (3) Mistrial — Commonwealth may ap-
felony cases any ruling of the lower court peal. Com. v. Matthews, 89 Ky. 287 ;
may be reviewed, whether it be final or and may also appeal if a new trial has
not, and without reference to whether been granted by lower court. Com. v.
the judgment is upon a verdict, or Hourigan, 89 Ky. 305.
whether it be a bar to another prosecu- § 339. Jndfoient of acquittal for an of-
tion for the same oflfense. When the fonse the punishment of which is impris-
lower court assigns a reason for sustain- on men t shall not be reversed. Sec. 352.
ing a demurrer to an indictment, the § 340. (1) Accused to be present dnrlaf
Court of Appeals is not limited to the felony trial For decisions relative to the
consideration of the reason so assigned, right of the accused to be present during
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616
APPEALS TO tHB COURt OP APPEALS— FELONIES. [tITLB IX
ment of conviction shall be reversed for any error of law [appear-
ing on the record when, upon consideration of the whole case^ the
the whole of his trial for a felony, see
Meece v. Com., 78 Ky. 586; Rutherford
V. Com., 78 Ky. 639; Temple v. Com.,
14 Bush 760; and sec. 183, and notes
thereto.
(2) Accused need not be present in
misdemeanor trial. Sec. 184 and notes.
(3) Asreeneits-^^efeadait bovfld bj. The
defendant and Commonwealth's attorney
agreed that a special judge to try his
case could not be procured by election,
and in consequence thereof the governor
appointed one. He was held bound by
his agreement. The court say: *' There
is a broad distinction between an admis-
sion of a fact necessary to put the ma-
chinery of the law in motion, to the end
that a trial may be had, and the consent
of one charged with a felony to be tried
by less than twelve jurors, or that one
not legally qualified shall preside as
judge at the trial." Kennedy v. Com.,
78 Ky. 447 ; and see further, note on
page 451.
(4) Bill of exceptiont— preparation of.
Sec. 282 and notes ; form of, page 545.
(5) Cballense to jaror. Although the
disallowance of a challenge for cause by
the defendant may have influenced his
course In the use of the peremptory chal-
lenges allowed him, it can not be regarded
as a refusal to allow a peremptory chal-
lenge within the meaning of sec. 334
(sec. 281) of the Criminal Code, and
regarded as a challenge for cause merely
it can constitute no cause for reversal.
Moore v. Com., 7 Bush 191.
(6) Code of 1154% Under Code of 1854,
sec. 334, a reversal was only authorized
for the following errors, apparent in the
record, viz. : An error of the circuit court
in admitting or rejecting important evi-
dence ; or in instructing or refusing to
instruct the jury ; or in failing to arrest
the judgment ; or in allowing or disal-
lowing a peremptory challenge. Observe
change made by this section.
(7) Cofltinwittcei Refusal to grant when
defendant entitled to continuance is
ground for reversal. Sec. 189 and notes;
Bates V. Com., 13 R. 132; Morgan v.
Com., 14 Bush 106; Salisbury v. Com.,
79 Ky. 425.
(8) DecUiotts tot Mbfect to exception. A
judgment can not be reversed for a de-
cision of the court upon challenges to
the panel, or for cause, or upon motion
to set aside an indictment, or upon mo-
tion for a new trial. Sec. 281 ; Kennedy
V. Com., 14 Bush 340; Farris v. Com., 14
Bush 362; 14 Bush 106; 82 Ky. 333;
13 Bush 246.
( 9 ) Where the question that the jurors
arrived at their verdict by lots is made
for the first time in the motion for a new
trial tlie error can not be considered,
as the court has no power (sec. 281) to re-
vise the ruling of the lower court in
overruling the motion for a new trial.
Redpion v. Com., 82 Ky. 333 ; overruling
P. <& E. R. R. Co. V. Com., 80 Ky. 147.
(10) Objection to juror because he was
an alien, or had expressed the opinion
that the accused was guilt}', or error in
not keeping jury together, or in permit-
ting Commonwealth's attorney to make
improper argument. Kennedy v. Com.,
14 Bush 340; or because jury was not
properly drawn, made for first time in
motion for new trial can not be consid-
ered. York V. Com., 82 Ky. 360.
(11) Objections made privately to the
judge to statements made by Common-
wealth's attorney in argument do not
preserve any question for the Court of
Appeals. Farris v. Com., 14 Bush 362.
See Rankin v. Com., 82 Ky. 424, as to
improper conduct of Commonwealth's
attorney.
(12) Errors that autiorltt revofttL In
reference to the amendment to this
section the court say : ** If this amend-
ment is ordinarily to have any effect it
must be construed to mean that the
power of tihis court to reverse in felony
oases depends upon two things: First,
that an error appears on the record ; sec-
ond, the court must be satisfied, from
consideration of the whole cade» that the
substantial rights of the accused have
been prejudiced by the error oomplained
ot But while the statute reooivet Ihii
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TITLK IX] APPEALS TO THE COURT OF APPEALS — FELONIES.
517
court is satisfied that the substantial rights of the defendant have
been prejudiced thereby]. ( Words in brackets added by act 1S80.)
construction it must be allowed a certain
flexibility which will exclude from its
operation oases not reasonably presumed
to have been contemplated by the law-
makers. The letter must not be so con-
strued as to kill the spirit." Rutherford
V. Com., 78 Ky. 639.
(13) ** We must reverse for any error of
law appearing in the record to the preju-
dice of the appellant, but this only ap-
plies to such errors as the party had a
right to manifest by bill of exceptions.
An error In respect to any of the mat-
ters which, under section 381, can not be
excepted to, is not an error appearing
* in the record * within the meaning of
section 340." Kennedy v. Com., 14 Bush
340.
(14) Errors occarrios darias trial avst be
excepted to at tiaie they occur, or they
will be waived. Wilkerson v. Com., 88
Ky. 29; Rankin v. Com., 82 Ky. 425;
Merritt v. Com., 11 R. 16 ; 14 Bush 398 ;
13 Bush 246; and see notes to sec. 271.
(15) Errors — bow sbowa. See sec. 282
and notes.
(16) Evideaco — error ia re)ectias or ad-
ailttias. Alleged error in refusing to per-
mit a witness to answer a question can
not be considered, unless it appear in the
record what answer it was expected the
witness would make. Tipper v. CJom., 1
Met. 6 ; Chrystal v. Com., 9 Bush 669 ;
Nichols v. Com., 11 Bush 575 ; Fenston v.
Com., 82 Ky. 549. And it is not proper
to permit counsel to state in the presence
of the jury what rejected evidence would
be. Flint v. Com., 81 Ky. 186.
(17) Objection must be made at time to
introduction of incompetent evidence,
and if admitted an exception taken, or
error will not be available; an exception to
the ruling of the court admitting it is
not sufficient. Branson v. Com., 92 Ky.
830; and see further, Clem v. Com., 3
Met. 10; Burns v. Com., 3 Met. 14 ; Ad-
well V. Com., 17 B. M. 310.
(18) To authorize the reversalof a judg-
ment of conviction for felony upon the
ground of the rejection of evidence of-
fered on the part of the defendant, it is
not sufficient that the rejected evidence
be shown to have been merely pertinent,
or relevant, or technically admissible ; it
must be imporiant for the defendant. In
view of the whole case as presented.
Champ. V. Com., 2 Met. 17.
(19) In regard to the admission of in-
competent evidence, the court say :
" What eflfect it had on the minds of the
jury no one can know; we can not specu-
late on its effect; it is enough for this
court to know that it was wrong, and
may have operated to the prejudice of
the appellant." Kennedy v. Com., 14
Bush 340; and see Coppage v. Com., 3
Bush 532.
(20) Evideaceaotaafflcieat ** This court
has no power to reverse a judgment of
conviction in a criminal case upon the
sole ground there was not sufficient evi-
dence to sustain the verdict, being re-
stricted to the single inquiry whether
there was any evidence before the jury
conducing to show the guilt of the ac-
cused." Vowels v. Com., 83 Ky. 193.
See Tipper V. Com., 1 Met. 6; Johnson
v. Com., 9 Bush 224 ; Kean v. Com., 10
Bush 190; Murphy v. Com., 1 Met. 305;
McDaniel v. Com., 6 Bush 326 ; Patterson
V. Com., 86 Ky. 313.
(21) Qrooads for aew triaL Under the
Code of 1854 it was held that it was not
necessary in the motion for a new trial
to specify as one of the grounds the ad-
mission of incompetent testimony to
which an exception had been taken.
Johnson v. Com., 9 Bush 224 ; and the
same rule prevails under this Code.
Turnbull v. Com., 79 Ky. 495. The
grounds for a new trial mentioned in this
Code, sec. 271, are substantially the same
as those mentioned in Code of 1854, sec.
267. This Code, sec. 840, authorizes a re-
versal for any error of law apparent on
the record, if upon the whole case the
court is satisfied that the substantial
rights of the accused have been preju-
diced thereby. The Code of 1854, sec.
334, provided that a judgment of con-
viction should only be reversed for the
following errors; 1, An error of thfe
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518
APPEALS TO THE COURT OF APPEALS — FELONIES. [TITLE IX
§ 341 [tt6] Instructions to appear in bill of exceptions. A judgment shall
not be reversed for an error of the court in instructing or refusing to
instruct the jury, unless the bill of exceptions contain all the instruc-
tions given by the court to the jury, and unless it shall thereupon
appear that the law applicable to the case was not correctly and
fairly given to the jury. {See as to preparation of bill of exceptionSy
sec, 282.)
§ 342 [sse] Death of accused terminates appeal. 'So appeal shall be taken
after the defendant's death, and upon his death an appeal taken dur-
ing his life shall abate and shall not be revived.
circuit court in admitting or rejecting
important evidence. 2. An error in in-
structing, or in refusing to instruct, the
jury. 3. An error in failing to arrest
judgment. 4. An error in allowing or
disallowing a peremptory challenge.
(22) Instructions— how error in to be
shown. Sec. 341 and notes.
(23) New trial— observe that exceptions
or objections made for first time in mo-
tion for new trial will not be considered.
Sec. 281 and notes.
(24) Objection and exception both neces-
sary. In criminal as well as civil cases
neither party can rely for reversal upon
an erroneous decision made at instance
of adverse party unless objection to mo-
tion or offer was made at time, and an
exception taken, but where court acts
on its own motion an exception alone is
sufficient. Branson v. Com., 92 Ky. 330.
(25) Reversible errors. Receiving ver-
dict in absence of accused. Temple v.
Com., 14 Bush 769 ; and refusing to per-
mit accused to remain on bail during
trial for felony, when his liberty is nec-
essary to enable him to prepare his case.
White v. Com., 80 Ky. 480 ; and per-
mitting Commonwealth's attorney to
state orally in the presence of the jury
what rejected and incompetent evidence
would be. Flint v. Com., 81 Ky. 186;
and refusing to grant a change of venue
when the substantial rights of the ac-
cused have been prejudiced by the re-
fusal. Johnson V. Com., 82 Ky. 116; or
continuance in certain cases, see note 7.
(26) On the trial of two boys fourteen
years of age, the Court of Appeals re-
versed the judgment of conviction on
the ground that incompetent evidence
was admitted, and because of improper
argument of the Commonwealth's attor-
ney ; although no objection or excep-
tion was saved. McClure v. Com., 81
Ky. 448 : and see, as to trial of infants,
Willet V. Com., 13 Bush 230; HeUman
v. Com., 84 Ky. 457.
§ 341. (1) Instructions. A general excep-
tion to all the instructi6ns is sufficient.
Williams v. Com., 80 Ky. 313 ; but the er-
ror in giving or refusing instructions must
be specified as one of the grounds in the
motion for a new trial. Hopkins v. Com.,
3 Bush 480; and the bill of exceptions
should show that an objection was taken
to the instructions. Burns v. Com., 3
Met. 14.
(2) lestmctlons— statement as to. In bill of
exceptions. Instructions given, but not
embraced in the bill of exceptions, can
not be considered although counsel con-
sent that they may be considered. Oder
V. Com., 80 Ky. 32.
(3) Following the bill of evidence and
exceptions, signed by the judge, are the
following statements made by the clerk,
to-wit: ** Instructions given are as fol-
lows," and after this is what purports to
be the instructions referred to. After
this is the statement: ** Instructions re-
fused by the court are as follows," fol-
lowed by what purports to be the instruc-
tions refused. The instructions were not
properly made part of the record and can
not be considered. Mitchell v. Com.,
78 Ky. 204.
(4) '* The bill of exceptions shows that
an instruction, designated as instruction
No. 4, was given on motion of the Corn-
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TITLE IX] APPEALS TO THE COURT OF APPEALS — FELONIES. 519
§ 343 [tsT] Effect of appeal by defeodant in peaiteiitlary. If a judgment of
confinement in the penitentiary have been executed before the
certificate of the appeal is delivered to the sheriff whose duty it is to
execute the judgment, the defendant shall remain in the penitentiary
during the pendency of the appeal, unless discharged by the expira-
tion of his term of confinement, or by pardon; and upon a reversal,
if a new trial be ordered, shall be removed back from the peniten-
tiary to the county jail from which he was brought, by the sheriff of
said county.
§ 344 [SSI] Removal of defeadaat from peoltentiary after reversal. Upon a man-
date of reversal, ordering a new trial, being filed in the clerk's office
of the circuit court in which the judgment of confinement in the
penitentiary, which has been executed, was rendered, the clerk shall
deliver to the sheriff a copy of the mandate, and a precept authorizing
and commanding him to bring the defendant from the penitentiary to
the county jail, which shall be obeyed by the sherift' and keeper of
the penitentiary.
§ 345 [ut] Credit for coofiaemeat oa second conviction. If the defendant, upon
the new trial, be again convicted, the period of his former confine-
ment in the penitentiary shall be deducted, by the court, from the
period of confinement fixed in the last verdict of conviction, or be
allowed by the court in fixing the period of confinement, although
such allowance reduce the period, for which the defendant is sen-
tenced, below the shortest period prescribed by law as a penalty for
the offense of which he has been found guilty ; unless the period of
confinement fixed in the verdict or by the court be for life.
monwealth. It is not, however, em- give the following instructions — going on
bodied in the bill of exceptions: and, al- to enumerate them — to each and all of
though a paper purporting to be instruc- which the defendant objected, but the
tion No. 4 is copied into the record, court overruled the objection and de-
there is no statement either by the clerk . fendant at the time excepted, and still
or court tending to identify it;, we might, excepts. The defendant then asked the
therefore, decline to consider it." court to give the following instructions,
Weatherford v. Com., 10 Bush 196. which the court gave— going on in like
(4) **As the instructions asked by de- manner to set them out." Clem. v.
fendant are not copied in the record, Com., 3 Met. 10; see Jane v. Com., 3
being lost as stated by the clerk, it must Met. 18.
be presumed that the ruling of the court (6) " It is not necessary for the record
in relation to them was right." McDaniel to state, in terms, that all the instruc-
V. Com., 6 Bush 326. tions given were contained in the bill of
(5) The following statement is not suf- exceptions. Any equivalent expression
ficient to show that bill of exceptions or any language or statement that would
contains all the instructions. "This convey, with reasonable certainty, the
being all the evidence, the attorney for same idea, would doubtless be held suffl-
the Commonwealth asked the court to cient." Jane v. Com., 3 Met. 18; 3 Met. 10.
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520 APPBALS TO COURT OF APPEALS — MISDBMBAN0R6. [tITLB IX
§ 346 [MO] Affirmance of death peaaHy — proceedings. When a judgment
of death has been affirmed, the clerk of the Court of Appeals shall
transmit to the governor a certificate of the affirmance and of the
judgment of the circuit court, to the end that a warrant for the execu-
tion of the judgment may be issued by the governor. The governor
shall send his warrant of execution by a special messenger, or by
mail, to the proper officer, and shall name therein the day and time
of execution, but shall not appoint an earlier day than that which
had been fixed on by the circuit court. The officer receiving the
same shall report his action both to the governor and the circuit
court. If, from any cause, the execution do not take place on the
day appointed by the governor, he may, from time to time, appoint
another day for execution, until the sentence is carried into effect.
{See further as to execution of death penalty y sees. ^QS^-^O? ; and Ky. Stat.,
sec. 1187.)
ARTICLE 2.
IN MISDEMEANORS.
§ 347. Jurisdiction of Court of Appeals.
§ 848. Time and manner of appealing by defendant.
§ 349. Execution not suspended unless bond executed.
§ 350. Time and manner of appealing by Commonwealth.
§ 351. Summons not necessary.
§ 352. Judgment of acquittal, when not to be reversed.
§ 353. Errors that authorize reversal.
§ 354. Attorney fee taxed as costs upon affirmance.
§ 355. Appeal in penal actions.
§ 356. Damages awarded on affirmance.
§ 347 [84a] Jttrisdictioo of Court of Appeals. The Court of Appeals shall
have appellate jurisdiction in penal actions and prosecutions for mis-
(7) The statement in the record that (giving the" instructions) and that "the
the defendant moved, *' the following in- court instructed the jury as follows on
structions" and that the Commonwealth motion of defendant" (giving them) was
moved ** following" and that then " the held sulBcient. Mickey v. Com., 9 Bush
court also gave to the jury the following 593.
instructions in lieu of those refused and (9) Observe that bill of exceptiou must be
in explanation of those given " was held prepared the same as in civil case, sec.
sufficient to show that record contained 283 ; and see further, as to biU of excep-
all the instructions. Smith v. Com., 1 tions and proper rule as to embodying
Duv. 224; Colley v. Com., 11 R. 34C. therein the instructions, notes to sec. 335,
(8) A bill stating that "the court on Civil Code; form of bill, page 645.
motion of the Commonwealth's attorney §347. (1) Appeal — jarisdictloi. The
instructed the jury as follows, to-wit" Court of Appeals has no jurisdiction in
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TITLE IX] APPEALS TO COURT OF APPEALS — MISDEMEANORS.
621
demeanors, in the following cases only, viz.: If the judgment be for a
fine exceeding fifty dollars, or for imprisonment exceeding thirty
days; or, if the judgment be for the defendant, in cases in which a
fine exceeding fifty dollars, or confinement exceeding thirty days,
might have been inflicted,
§ 348 [t4S] Time and maniier of appeallif by defendant. The appeal must
be prayed during the term at which the judgment is rendered, and
shall be granted upon the condition that the record be lodged in the
clerk's office of the Court of Appeals within sixty days after the
judgment. {Form of order y page 676.)
§ 349 IS44] Execatfon not suspended aaless bond executed. The appeal shall
not suspend the execution of the judgment, unless the defendant
cause to be executed before the clerk of the circuit court a covenant,
by good surety, to be approved by said clerk, for the payment, in
case the judgment be affirmed, of the fine and costs and costs of the
appeal and all damages thereon, and for the surrender of the defend-
ant in execution of the judgment, if the judgment be for imprison-
misdemeauors unless the judgment be
for a fine exoeeding fifty dollars, or for
imprisonment exceeding thirty days, or
if the Judgment be for defendant, in
cases in which a fine exceeding fifty dol-
lars or confinement exceeding thirty
days might have been inflicted. Ander-
son V. Com., 14 Bush 171.
(2) When judgment is rendered against
defendants under an indictment for mis-
demeanor, they can not enter a motion
for a new trial or prosecute an appeal
unless they surrender themselves in exe-
cution of the judgment or supersede it.
Norton v. Com., 78 Ky. 501 ; see Wilson v.
Com., 10 Bush 526.
^(3) An appeal may be prosecuted by
the defendant from an order of the cir-
cuit court directing his name to be
stricken from the roll of attorneys of
such court upon charges of malpractice
and official misconduct. Turner v. Com.,
2 Met. 019 ; and see, as to jurisdiction of
appeals under the Code of 1854, Com. v.
Crump, 18 B. M. 469; Holden v. Com.,
2 Bush 36.
(4) When the judgment convicts the
defendant of an infamous offense and
deprives him of the right to hold office
he may appeal, although the fine im-
posed does not exceed fifty dollars.
Cheek v. Com., 87 Ky. 42; Johnson v.
Com., 90 Ky. 53.
(5) If the jury impose a less fine than
fifty* dollars, although the fine fixed by
law is greater than that amount, the de-
fendant can not appeal. Johnson v.
Com., 90 Ky. 53.
§ J4S. (1) Appeal— how Uktn, udwhea
record nnst be filed. Judgment upon
verdict for misdemeanor was rendered
against defendants. They prayed an ap-
peal and executed supersedeas bond be-
fore the clerk of circuit court, but failed
to file any transcript of the record or copy
of the supersedeas bond, and obtain
from the clerk of Court of Appeals a
certificate that execution of the judg-
ment was suspended. Held that there
was no obstruction to the collection of
the judgment in the lower court, and
that having failed to file the transcript in
time their appeal must be treated as
abandoned. Com. v. Howard, 81 Ky. 57.
(2) The court has no jurisdiction of
the appeal unless the record is lodged in
the clerk's office of the Court of Appeals
within sixty days after judgment. Strat-
ton V. Com., 84 Ky. 190; Medcalf v.
Com., 84 Ky. 485; Mackey v. Com., 80
Ky. 345 ; Com. v. Adams, 16 B. M. 838;
Com. V. McCready, 2 Met. 376.
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522
APPEALS TO COURT OF APPEALS — MISDEMEANORS. [tITLE IX
ment, or on his failure so to surrender himself for the payment of a
sum equal to two dollars for every day of imprisonment adjudged;
and cause said covenant to be copied into the transcript : upon which
being lodged with the clerk of the Court of Appeals, he shall issue
a certificate that execution of the judgment is suspended. {Form of
bond, page 676; supersedeas, page 676.)
% 350 [3M] Time and manner of appealing by CommonweaHk When the Com-
monwealth's attorney prays an appeal the clerk shall forthwith make
and certify a complete transcript of the record, and transmit the same
to the attorney -general, or deliver it to the Commonwealth's attor-
ney for that purpose ; and if the attorney -general, on inspecting the
same, believe it proper to take the appeal, he shall do so, by filing
the transcript in the clerk's office of the Court of Appeals, in sixty
days after the judgment.
§ 351 [t«e] Sammons not necessary on appeal. 'So summons is necessary
on an appeal.
§ 352 [t«T] Judgment of acquittal, when not to be reversed. A judgment on
a verdict of acquittal, of an offense the punishment of which is
imprisonment, shall not be reversed.
§ 353 [MS] Errors that authorize reversal. The judgment shall be reversed
for any errors of law [appearing on the record w^hen, upon con-
(3) An appeal must be taken during
the term at which judgment is rendered.
Com. V. Adams, 16 B. M. 338; and this
rule applies whether the appeal be
prayed by the Commonwealth or by the
defendant. Com. v. McCready, 2 Met. 376.
(4) The provision requiring the record
to be filed within sixty days after judg-
ment can not be suspended by consent
of parties. If time can be given until
the next term to prepare and file a bill
of exceptions it can only be done by
withholding or suspending judgment.
Com. V. McCready, 2 Met. 376.
(5) Motion for a new trial suspends the
judgment, and if it be continued to the
next term and then be overruled, an ap-
peal may then *be taken, and the record
lodged in the clerk's olBce of the Court
of Appeals within sixty days after the
judgment is rendered overruling the mo-
tion for a new trial. An appeal can not
be prosecuted until after the motion for
a new trial has been disposed of. Louis-
ville Chemical Works v. Com., 8 Bush
179.
(6) The day on which the judgment
was rendered must be included ; where &
judgment was rendered November 19th,
and the record filed January 19th follow-
ing it was held too late. Wood v. Com.»
11 Bush 220.
(7) A proceeding against the surety of
a tavern-keeper to recover $300 for a
breach of the obligations of the tavern-
keeper's bond, is not a misdemeanor, and
does not come within that provision re-
quiring the record to be filed in sixty
days. Margoly v. Com., 3 Met. 405.
(8) Repeal of statote^efffect of. The re-
peal of a statute pending an appeal by
one who has been convicted under it
necessitates a reversal of the judgment
and a dismissal of the action. Speckert
v. Com.. 78 Ky. 287 ; but see Ky. Stat,
sec. 465 ; and Waddell v. Com., 84 Ky.
276; Com. v. Sherman, 85 Ky.686; Com.
V. Duff, 87 Ky. 586.
§ 353. Errors that anthoriie reveraaL The
sufficiency of the evidence to prove the
charge can not be inquired into on the
appeal nor the judgment reversed upon
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TITLB IX] APPEALS TO COURT OF APPEALS — QSNBRAL PROVISIONS. 523
sideration of the whole case, the court is satisfied that the substan-
tial rights of the defendant have been prejudiced thereby], (Words
in brackets added by act 1880.)
§ 354 [SBo] Attorney's fee taxed as costs npoii affirmaiice. Upon the affirm-
ance of a judgment, on the appeal of the defendant, an attorney's
fee of twenty dollars shall be taxed as part of the costs of the appeal,
to be equally divided between the attorney-general and the attorney
for the Commonwealth, and upon the reversal of a judgment, upon
an appeal by the Commonwealth, a fee of five dollars.
[So much of this section as divides the attorney's fee taxed as
costs between the attorney-general and the attorney for the Com-
monwealth is hereby repealed, and said fee shall go to, and be for,
the benefit of the attorney -general.] ( Words in brackets act of 1880.
See as to fees and salary of attorney-general, Ky. Stat., sec. 117.)
§ 3SS [t5i] Appeal in penal actions. If the prosecution be by a penal
action, the appeal shall be similar in all respects to appeals in civil
actions.
§ J56[S6S3 Damages awarded on affirmance. K the execution of a judg-
ment for a fine be suspended, as provided in this article, upon an
affirmance of the judgment, damages at the rate often per cent shall
be awarded against the defendant, [one-fourth of] which shall be for
the use of the attorney-general. ( Words in brackets stricken out by act
1880. See as to compensation of attorney-general, Ky. Stat., sec. 117.)
ARTICLE 3.
GENERAL PROVISIONS.
§ 357. Appeals in criminal cases take precedence.
§ 358. Time when appeals stand for trial.
§ 359. Time appeal in felony case stands for trial.
§ 360. Trial and decision at same term.
§ 361. Judgment for costs against defendant if he fail.
§ ^7 [t»8] Appeals io criminal cases talce precedence. Appeals in criminal
cases shall take precedence over all other business of the court, and
be placed first upon the docket for trial.
that ground. Nor will a misdemeanor not prejudicial to the accused. Robin-
Judgment be reversed because the case son v. Com., 16 B. M. 609 ; see further^
was tried by less than twelve Jurors, if notes to sec. 340.
the defendant consented to it (Murphy §356. Damases. The Code of 1854 did
V. Com., 1 Met. 365) ; nor because an not provide for damages upon the dis-
erroneous instruction was given, if it was missal of an appeal. But it was held
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624 APPEALS TO CIRCUIT COURTS. [tITLB IX
§ 258 [t54] Time wheo appeals stand for trial. They shall stand for trial at
the first temi succeeding the lodging of the transcript in the clerk's
office of the Court of Appeals, provided it be so lodged ten days
before the commencement of the term.
§ 359 [M5] Time appeal In felony case stands for trial. When an appeal by
the defendant in a case of felony is lodged within ten days before the
commencement of the term, or during the term, it shall stand for
trial on the tenth day after it is so lodged.
§ 360 [8ft6] Trial and decision at sane term. The appeal shall be decided
at the same term at which it is tried.
§ 361 [t0T] Jndcment for costs against defendant if kefall. On the affirmance
of a judgment, if the appeal be taken by the defendant, and on the
reversal of the judgment, if the appeal be taken by the Common-
wealth, a judgment for costs shall be rendered against the defendant
CHAPTER 11.
TO CIRCUIT COURTS.
§ 362. Jurisdiction in cases of appeal.
§ 363. Commonwealth no appeal unless statutes authorize it.
§ 364. Appeal by defendant — how taken.
§ 365. Suspension of judgment by executing bond.
§ 366. Case tried de novo — when considered affirmed — costs.
§ 367. Attorney's fee and costs on affirmance.
§ 368. Judgment for defendant, money collected returned.
§ 369. Satisfaction of judgment bars appeal — time to appeal.
§ 370. Proceedings on appeal bond.
§ 362 rsot] Jurisdiction in cases of appeal. If a judgment against a defend-
ant on a trial before a county judge, or in a justice's court, or in a
city or police court, unless otherwise provided in the statutes creating
or regulating it, be for imprisonment or for a fine of twenty dollars
or more, he shall have the right of appeal to the circuit court of the
county in which the judgment is rendered. {See as to jurisdiction of
courts, page BJfl of this Code,)
§ 363 [S591 Commonwealth no appeal unless statutes authorize it. The Com-
monwealth shall have no right of appeal from judgments of county
under that Code that the appellee was § 361. Costs. Defendant in a criminal
entitled to ten per cent damages upon prosecution must pay his own costs al-
the dismissal of an appeal. Evans v. though he may be acquitted or have sue-
Com., 3 Bush 161 ; M., I. & P. R. R. Co. ceeded upon appeal. Green v. Com., 93
V. Briscoe, 18 B. M. 570. Ky. 299; Peoples v. Com., 88 Ky. 174.
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TITLE IX] APPEALS TO CIRCUIT COURTS. 525
judges, or of justices' courts, or of city and police courts unless other-
wise provided in the statutes creating or regulating them. {See page
SSljfor sections of Ky. StaL relating to police courts.)
§ 344 [t««] Appeal by defendant — how taken. If a defendant desire to
appeal from the judgment of a county judge, or of a justice's, city
or police court, he shall obtain from the clerk of such court, or from
the judge or justice, a copy of the warrant or summons, if any, and
of the judgment, and a statement of the costs, and file them in the
clerk's office of the circuit court, and cause to be executed, by good
surety, to be approved by the clerk, a covenant to pay the costs of
the appeal in the event of the affirmance of the judgment; and, if
he desire to suspend the enforcement of the judgment, a further cove-
nant to perform the judgment which may be rendered against him on
the appeal; or, if the judgment be for imprisonment, and the
defendant fail to surrender himself in execution thereof, to pay to
the Commonwealth a sum equal to two dollars for each day of im-
prisonment adjudged, and thereupon the clerk shall docket the
appeal with the other Commonwealth eases, and issue a certificate of
the appeal ; and, if the covenant be executed for that purpose, a cer-
tificate that the collection of the judgment is suspended, which cer-
tificates shall be served on the county judge, or justice, or on the
clerk ,of the city or police court, and, if an execution have been
issued, on the officer to whom it was delivered. {Form of hondy page
676; certificate^ page 677)
§ 365 [seo] Suspension of jndf ment by executing bond. After the service of
a certificate of suspension, the judge, justice or clerk shall issue no
other execution, and any officer on whom it is served shall return the
execution in his hands as suspended by appeal. If a certificate of
appeal only be served, the judge, justice or clerk shall indorse on
any execution he may thereafter issue that the money collected
thereon shall be paid into the circuit court in which the appeal is
pending, and the officer shall pay any money that he may collect on
any execution in his hands, or which he may thereafter receive, into
such circuit court.
§ 366 [861] Case tried de novo — when considered affirmed — costs. Upon the
appeal the case shall be tried anew, as if no judgment had been ren-
dered, and the judgment shall be considered as affirmed if judgment
for any amount be rendered against the defendant, and thereupon he
shall be adjudged to pay the costs of the appeal.
§ 367 [861] Attorney's fee and costs on affirmance. Upon an affirmance an
attorney's fee of ten per cent on the amount of the judgment shall
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626 APPEALS TO TUB CIRCUIT COURT. [TITLE IX
be taxed as part of the costs, and the costs in the justices' court shall
be taxed as part of the costs of the appeal.
§ 368 [8M1 Jadcmettt for defendaat, money collected retaraed. If judgment
be rendered for the defendant, any money paid into the circuit court,
which has been collected of the defendant, on the original judgment,
shall be forthwith returned to him.
§ 369 [864] Satisfactloii of jadpnettt bars appeal — ^tlme to appeal. !N'o appeal
shall be taken from a judgment of a county judge, or of a city,
police or justices' court, after it is satisfied, nor after sixty days from
the rendition thereof.
§ 370 [860] Proceedinss on appeal bond. Upon a judgment being rendered
against the defendant on an appeal, and an execution issued thereon,
in one year from its rendition, being returned unsatisfied, a summons
shall be issued by the clerk, at the request of the Commonwealth's
attorney, against the surety on the appeal and suspending covenants,
requiring him to appear on the first day of the next term of the cir-
cuit court, to show cause why judgment should not be rendered
against him on said covenants, which summons shall be directed,
delivered, served and returned as an ordinary summons in a civil
action, and shall be docketed and stand for trial, and be tried as an
ordinary civil action. If the surety have any defense thereto, he shall
make it by answer, and the issues of law or of fact thereon shall be
tried and decided.
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TITLE X] SUPPRBSSION OF RIOTS — RESISTANCE TO AUTHORITY. 527
TITLE X. '
PROCEEDINGS TO PREVENT THE COMMISSION OP OFFENSES.
Chapter I. Suppression op riots and of resistance to lawful authority, 371.
II. Requiring security to keep the peace, or for good behavior, 382.
III. Arrest and confinebient of insane, drunken and disorderly
persons, 394.
IV. Habeas corpus, 309.
CHAPTER I.
SUPPRESSION OP RIOTS AND OF RESISTANCE TO LAWFUL AUTHORITY.
§ 871. Resistance to officer— how overcome.
§ 372. Resisters and abettors — punishment of.
§ 373. Refusal to aid officer — punishment.
§ 374. Governor may send aid.
§ 375. Riots and unlawful assemblies— dispersement.
§ 376. Arrest of persons refusing to disperse.
§ 377. Refusal to aid officer in dispersing — punishment.
§ 378. Penalty against officer failing to do duty.
§ 379. Military may be called out.
§ 380. Military to obey civil officers.
§ 381. Rules for government of military.
§ 371 [t«T] Resistance to officer — how overcome. When a sheriff or other
public officer authorized to execute process finds, or has reason to
apprehend, that resistance will be made to the execution of the proc-
ess, he may command as many male inhabitants of his county as he
may think proper, and any military companies in his county, armed
and equipped, to assist him in overcoming the resistance, and in
arresting and confining the resisters and their aiders and abettors, to
be punished according to lavsr.
§ 372 [t«s] Resisters and aliettors — punlshmeiit of. The officer must report
to the court from which the process issued the names of the resisters
and their aiders and abettors, that they may be punished for con-
tempt.
§ 373 [>••] Refoslof to aid officer — pnoishment. Every person commanded
by a public officer to assist him in the execution of process, who,
without lawful cause, refuses or neglects to obey the command, is
guilty of a misdemeanor and contempt of the court from which the
process issued. {See further as to penalty, Ky. Stat,, sec. 134^0,)
§ 374 csT«j Qovemor may send aid. If it appear to the governor that the
power of the county is not sufficient to execute process, he must, on
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528 -SUPPRBSStON OP RIOTS — RESISTANCE TO AUTHORITY. [TITLE X
application of the sheriff, order such a military force from any other
county or counties as may be necessary. {See farther as to when mili-
tia may he called out, Ky. Stat., sec. 3672.)
§ 375 (STi] Riots and aalawfal assemblies— disperseneato. When persons to
the number of twenty or more are unlawfully or riotously assembled
in a city or town, the sheriff of the county and his deputies, and the
other peace officers and magistrates of such city or town, together
with the mayor or other chief officer of the city or town, must go
among the persons assembled, or as near them as possible, and, in
the name of the Commonwealth, command them to disperse.
§ 376 [8TSJ Arrest of persons refosin^ to disperse. If the persons assembled
do not immediately disperse, the magistrates and officers must arrest
them, or cause them to be arrested, that they may be punished accord-
ing to law, and may command to their aid all persons . present or in
the county. {See for penalty , Ky, Stat., sec. 1:268.)
§ 377 [STSj Refusal to aid officer in dispersing — penalty. If the persons com-
manded to aid the magistrates and officers neglect to do so without
just cause, they shall be treated as part of the rioters, and punished
accordingly.
§ 378 [ST4] Penalty against officer failinf to do duty. If a magistrate or
officer named in section three hundred and seventy-five, having
notice of an unlawful or riotous assembly, neglect to proceed to the
place of assembly, or as near as he can with safety, and to exercise
the authority invested in him to suppress the same and arrest the
offenders, he is guilty of as misdemeanor.
§ 379 [STi] Military may ht called oat If the unlawful assembly have the
intent of committing a felony, or of offering violence to person or
property, or to resist by force the laws, the judge of the circuit court,
or the judge of the county court, or the mayor or chief officer of the
city, or the sheriff of the county, or any two justices of the peace,
may, by an order directed to a commanding officer of the militia, or
of a military company, direct such military force under his command
as shall be specified, to appear at a specified time ai\d place, armed
and equipped, to aid the civil authorities in suppressing violence and
enforcing the law, which order shall be forthwith obeyed by the
commanding officer and troops. {See further as to when mUitary may
be called out, Ky. Stat., sec. 2672.)
§ 380 [sTt] Military to obey civil offlcert. When an armed force is called
out to suppress an unlawful or riotous assembly, it mast obey the
orders of the civil officers named in the last section, {See to same
effect, sec. 2673, Ky. Stat.)
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TITLE X] SUPPRESSION OF RIOTS — RESISTANCE TO AUTHORITY. 529
§ 381 [STT] Rules for foveniment of military. The comnianding officer
must act on the defensive, and only permit the troops to use their
edged or pointed weapons to repel violence, except in the following
cases :
1. If an attack be made on the troops, or any one of them, by
which his life is endangered, they may defend themselves by dis-
charging their fire-arms; and when the attack is general, the com-
manding officer may order the troops to fire.
2. If the troops can not be placed between the rioters and the
persons or property they are intending to attack, and the illegal
purpose of the riot be persisted in by means dangerous to the
lives or property of others, the magistrates and officers mentioned
in section three hundred and seventy-nine, or any two of them,
may direct the commanding officer to disperse the rioters, which he
is a.uthorize'd to do, by ordering the troops, first to use the bayopet
and sword, and if they prove ineffectual, but not otherwise, to dis-
charge their fire-arms against them.
3. The troops must not be brought on the ground until the
magistrate or officer has proclaimed the office which he holds, and
commanded the assembly to disperse, and every endeavor must be
used by the magistrates and civil and military officers to induce, or
force, the rioters to disperse before an attack is made on them.
{See further, Ky. Stat, sec. 2695.)
(84)
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580 REQUIRING SECURITY TO KEEP THE PEACE. [tITLB X
CHAPTER 11.
REQUIRING SECURITY TO KEEP THE PEACE. OR FOR GOOD BEHAVIOR.
§ 383. Grounds for requiring bond to keep peace.
§ 383. Arrest of person accused.
§ 384. Trial and bond.
§ 385. Time for which security may be required.
§ 386. Bond to be returned to circuit court clerk.
§ 387. Trial in circuit court, bond may be required.
§ 388. Magistrate may take bond after commitment.
§ 389. Defendant discharged if prosecutor fail to appear.
§ 390. Defendant to be discharged unless guilt shown.
§ 391. Breaches of bond — what are.
§ 392. Proceedings when bond broken.
§ 393. Security may be by recognizance.
§ 382 [8Tt] Qronods for reqairlnji; bond to keep the peace. A person may be
arrested for the purpose of requiring of him security to keep the
peace, or for his good behavior, in the following cases :
1. Upon the complaint on oath, of a person threatened, to a
magistrate, that the defendant has threatened to commit an oflfense
against his person or property, and upon the magistrate being sat-
isfied, by examination on oath of the complainant or others, that
there are reasonable grounds to fear the commission of the oflfense
threatened.
2. Upon information given on oath to a magistrate, by any per-
son, that the defendant is about to commit violence endangering
human life, or is about to commit an offense amounting to a felony,
and the magistrate being satisfied, by an examination on oath of
the informant or others, that there are reasonable grounds for
apprehending the commission of such violence or felony.
3. If a magistrate or court be satisfied, by the conduct or words
of a person in the presence of such magistrate or court, or from
proof given before such magistrate or court, that there are reason-
able grounds for apprehending that such person will commit an
offense against the person or property of another. ( Who are magis-
traiesy sec. 26,)
§ 382. (1) Boad to keep peace. In a (2) See further, as to rights and powers
proceeding against the surety in bond of magistrate when person is brought
given to keep the peace, when the record before him, chfg'ged with a breach of
does not show the evidence, it will be the peace or on a peace warrant, Pepper
presumed that a bond to keep the peace v. Mayes, 81 Ky. 673.
was properly required. Rankin v. Com.,
9 Bush 553.
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TITLE X] REQUIRING SECURITY TO KEEP THE PEACE. 631
§ 383 [»T»] Arrest of person accused. If the defendant be in the presence
of the court or magistrate, a peace officer shall be verbally directed
by the court or magistrate to take him into custody. If not in the
presence of the magistrate, he shall issue a warrant of arrest, directed
to any peace officer of the county, or city, or town, commanding him
to arrest the defendant and bring him before the magistrate. The
complaint, information or proof shall be briefly recited in the war-
rant. {Form of warranty page 661 ; who are peace officers^ sec. ^6.)
§ 384 isso] Trial before magistrate — bond may be required. Upon the defend-
ant being brought before the magistrate, or being taken into custody
by order of a court or magistrate, the court or magistrate shall hear
the evidence which may be produced on either side ; and if satisfied
that there are reasonable grounds for apprehending that the defend-
ant will commit an offense against the person or property of another,
or will commit violence endangering human life, or an offense
amounting to felony, may require of him surety to keep the peace,
or for his good behavior, in a sum not exceeding five thousand dol-
lars, if human life be endangered, or one thousand dollars in other
cases; and in default of giving such surety, may commit the defend-
ant to jail, for a period not exceeding three months, unless he shall,
in the (meantime, give such surety. (Form of bondy page 661 ; order
of commitment^ page 66S ; recognizance may be taken, sec. 393.)
§ 385 [tsi] Time for which security may be required. The security required
by a circuit, county or police court may be for keeping the peace, or
for good behavior, for any length of time not exceeding one year.
If it be required by a magistrate, it shall be for keeping the peace,
or for good behavior, until the defendant shall appear before the
circuit court of the county, on the first day of its next term, before
which court the defendant shall also be bound, with surety, to appear,
and not depart without leave of the court.
§ 386 [sss] Bond to be returned to circuit court clerk. The magistrate shall
return the bond of the defendant and his surety for his appearance
and keeping the peace, to the clerk of the circuit court, before its
next term.
§ 387 [sts] Trial in circuit court — bond may be required. Upon the defend-
ant appearing, the court shall examine the case, and either discharge
the defendant or require surety to keep the peace, or for his good
behavior, for a period not exceeding one year; and, in default of giv-
ing such surety, may commit the defendant' to jail for a period to be
fixed by the court, not exceeding three months, unless he shall, in
the meantime, give security. If a defendant be committed to jail for
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632 REQUIRING SECURITY TO KEEP THE PEACE. [TITLE X
failure to give bond as above provided, the cause of commitment,
and the sum in which he is required to give security, shall be stated
in the written order of commitment, which shall be delivered to the
jailer. {Form of bondy page 662 ; order of commitment^ page 662; recog-
nizance may he taken, sec. 393.)
% 388 [8s«] Ma||;istrate may take bood after commitmeot Any magistrate or
court of the county may take the surety required by the foregoing
provisions of a defendant committed to jail, for default of giving
such security. ( Who are magistrates, sec. 26.)
§ 389 [8*ft] Defendant discharjjied if prosecutor fail to appear. If the proceed-
ings be taken upon the complaint of the person threatened, if he
fail to appear before the court or magistrate, the defendant shall be
discharged.
§ 390 [Me] Defendant to l>e discharged unless guilt shown. Unless the court or
magistrate be satisfied that there are reasonable grounds for believ-
ing that the defendant will commit an offense against the person or
property of another, or commit violence endangering human life, or
an offense amounting to felony, he shall be discharged.
§ 391 [»8T] Breaches of the bond — what are. The following are breaches
of the bond required in this chapter :
1. The failure of the defendant to appear in the circuit court, if
the bond require such appearance, or departing therefrom before
he is lawfully discharged.
2. A judicial conviction of the defendant of an offense involving
a breach of the peace, within the period specified in the bond.
3. A judicial conviction of the defendant of a felony within the
time specified in the bond, if the bond be for his good behavior.
§ 392 [ss*] Proceedings upon breach of bond. The attorney for the Com-
monwealth may proceed by action, in the name of the Common-
wealth, against the defendant and his surety, upon a breach of the
bond.
§ 393 [ss»] Security may be by recognizance. If the security required in
this chapter be given in court, it may be by a recognizance entered
into in open court, and entered upon the records by the clerk. (Form
of recognizance, pagc662.)
§ 391. Viobition of bond. A conviction forfeiture of a bond ** to keep the peace
of the offense of drunkenness and dis- and be of good behavior " without a di-
orderly conduct is not necessarily a con- rect proceeding to forfeit the bond. Ran-
viction of an offense involving a breach kin v. Com., 9 Bush 553.
of the peace, and does not authorize a
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TITIrE X] ARREST OF INSANE AND DISORDERLY PERSONS. 533
CHAPTER m.
ARREST AND CONFINEMENT OF INSANE, DRUNKEN AND DISORDERLY
PERSONS.
§ 394. Insane or drunken persons to be arrested.
§ 395. Disorderly persons to be arrested.
§ 396. Disposition of person arrested.
§ 397. Insane person, how dispose(f of.
§ 398. Drunk or disorderly person, how disposed of.
§ 394 [890] losaoe or dronken person to he arrested. It shall be the duty of
all peace officers to arrest any insane or drunken person whom they
may find at large, and not in the care of some discreet person, and
carry him before some magistrate of the county, city or town in
which the arrest is made. ( Who are peace officers, sec. 26,)
§ 395 [891] Disorderly persons to ht arrested. It shall also be the duty of
all peace officers to arrest any disorderly person whom they may find
creating a disturbance by noise or other disorder, and carry him
before some magistrate of the county, town or city in which the
arrest is made* ( Who are magistrates, sec. 26,)
§ 396 1898] Disposition of person arrested. If the arrests authorized in the
last two sections be made during the night, the officer shall keep the
persons arrested in confinement until the next morning, unless, in
the case of an insane or drunken person, he deliver him into the
custody of some discreet person, who will undertake to restrain and
take care of him; and if the arrest be made in the local jurisdiction
of a police or city court, the persons arrested shall be carried before
the judge of such court unless he be absent.
§ 397 [8»8] Insane person, how disposed of. The magistrate before whom
an insane person is brought shall make such orders as may be neces-
sary to keep him in restraint, until he can be sent, by due process of
law, to the lunatic asylum ; and if such insane person have not friends
to whose custody or care the magistrate can commit him, he may
order him to be confined in the county or city jail, and shall imme-
diately give notice thereof to the city or county attorney, whose duty
it shall be to take the proper proceedings for having the insane per-
son sent to the lunatic asylum.
§ 398 [884] Drunk or disorderly person, how disposed of. Upon a drunken
person being brought before a magistrate, he shall have power to
§ 394. Dniokeo person. It is the duty care of some discreet person. Wing v.
of a peace officer to arrest any drunken Com., 7 R. 210.
person who is at large and not in the
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534 HABBA8 CORPUS. [tITLB X
order him to be confined until he become duly sober ; and upon a dis-
orderly person being brought before him, the magistrate may require
of him surety for his good behavior and for keeping the peace for a
period not exceeding one year; and on his failure to give such surety,
may commit him until he gives security, but in no event is the con-
finement to exceed thirty days. {Form of bond, page 662; order of
commitment, page 662.)
CHAPTER IV.
HABEAS CORPUS *
§ 399. Causes for and officers who may issue writ.
g 400. Signature to and officer to whom returnable.
g 401. Penalty for refusing to issue writ.
§ 402. Direction and form of writ — when returnable.
§ 403. Return day may be changed.
§ 404. Bond may be required before writ issued.
§ 405. Officer granting writ may order person detained taken.
§ 406. Writ — how and by whom executed.
§ 407. Service of writ if party conceal himself.
§ 408. Return of writ— change of return day.
§ 409. Penalty for refusal to obey.
§ 410. Response to writ — ^what it must state.
§ 411. Person detained must be produced— exception.
§ 412. Person detained need not be produced — when.
§ 413. Affidavits may be read on trial.
§ 414. Witness' attendance, how secured— enforcement of judgment.
§ 415. Officer interested or related not to preside.
§ 416. Officers to whom writ may be returned.
§ 417. Notice to defendant of officer writ returned to.
8 418. Objection to officer presiding — practice.
§ 419. Issue — how formed.
*(1) Habeas corpns. A justice has no (2) A party was convicted and prayed
power to issue a writ of habeas corpus an appeal, pending which he obtained
when a circuit, chancery, police or his discharge on a writ of habeas corpus
county judge is in the county, and if a issued and tried by a police judge; the
justice does issue the writ when any of circuit judge properly disregarded the
those officers are in the county, it is a action of the police judge in ordering
nullity and may be disregarded. A person judgment to be executed. Haggard v.
in jail is not entitled to a writ of habeas Com., 79 Ky. 366.
corptis, as of course. It is a discretionary (3) No appeal lies from the decision
writ to be issued only upon probable of the judge of an inferior court upon a
cause being shown, and if it appears writ of habeas corpus. Gill on Petition,
upon the face of the petition therefor 92 Ky. 118.
that there is no sufficient ground for the (4) Judgment upon a writ discharging
release of the prisoner, the writ will be a defendant, although improper, released
denied. Bethuram v. Black, 11 Bush 628. his bail. Smith v. Com., 91 Ky. 588.
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TITLB X] HABEAS CORPUS. 585
§ 420. Trial, judgment and costs.
§ 421. Paper and proceedings to be returned.
§ 422. Person released not to be imprisoned for same cause — exception.
§ 423. Proceedings if person guilty of public offense.
g 424. Writ may issue against religious or other association.
§ 425. Causes for removing prisoner from custody.
§ 426. Trial of writ if examining court refuse bail.
§ 427. Issual and service on any day — powers of person executing.
§ 428. Civil suit not affected by proceedings.
§ 429. Second writ may issue — judge who may try.
§ 399 [8t5] Causes for and officers who may Issue writ. The writ bf habeas
corpus shall be issued upon petition on behalf of any one showing, by
affidavit or otherwise, probable cause to believe he is detained with-
out lawful authority, or is imprisoned when by law he is entitled to
bail.
1. By any judge of a circuit, criminal, chancery or common
pleas court.
2. By a judge of a county, city or police court, when all the
judges mentioned in subsection one are, at the time, absent from
the county ; or,
3. By a justice of the peace, when all the judges mentioned in
subsections one and two are, at the time, absent from the county.
The power of a judge of a circuit, criminal, chancery or com-
mon pleas court to issue writs of habeas corpus shall be coextensive
with the State. That of the other officers above enumerated shall
extend only to the limits of their respective counties, cities or
towns. {Second writ may issue^ sec. 4^9.)
§ 400 [M] Sifuature to and officer to whom retnmalile. The writ shall be
signed by the officer granting it, and be made returnable before one
of the judges mentioned in subsection one of section three hundred
and ninety-nine, of the county in which the writ is served. {See fur-
ther as to officer to whom returnable^ sees. 408, 4^6, 42^^)
§ 401 [stB] Penalty for refusal to Issue writ. If any officer authorized to
grant the writ shall, when legally applied to, refuse to issue it, he
shall forfeit and pay, to the person in whose behalf it was applied
for, five hundred dollars.
§ 402 [tfo] Direction and form of writ — when returnable. The writ must be
directed to the person having custody of, or restraining, the person
in whose behalf the application is made, and must command him to
have the body of such person, at the court-house of the county in
which the writ is served, before the officer before whom the writ is
made returnable, at a time therein specified. It must be made
returnable so soon as may be. {Form of writ, page 678.)
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586 HABEAS CORPUS. * [TITLE X
§ 403 [8«5] Retura day may he cliaii||;ed. If the writ be served before the
return day thereof, but at such time as makes it impossible to make
return to the writ, at the time required by it, the person serving the
writ may, by an indorsement on it and on the copy served, order the
person to whom the writ is directed to make return to it, at a time
subsequent to that mentioned in the writ, but not exceeding three
days from the time of the service of the writ. Such indorsement
shall be part of the writ. (Form of indorsement^ page 678 ; and see
further, sec. 408.)
§ 404 [8fo] Bond may be required before writ issued. The officer granting
the writ may previously require bond with surety in sufficient
penalty, to the Commonwealth or the person to whom the writ is
directed, conditioned that the person detained shall not escape by the
way, and for the payment of such costs and charges as may be
awarded against him. The bond shall be filed with the other papers
and proceedings in the court, and may be sued on by the Common-
wealth, for the benefit of any one injured by the breach of it. (Fonn
of bond, page 678 .)
§ 405 CS90] Officer grantinii; writ may order person detained talcen. When the
person in whose behalf the writ is applied for shall not be in the
custody of a jailer or other public officer, the officer granting the
writ may, for good cause shown, direct the person serving it to take
the person detained into his custody and produce him on the return
of the writ.
§ 406 [895] Writ — how and by whom executed. The writ shall be served
by any qualified officer, or by any private person designated by the
officer issuing it, on the person to whom it is directed; or, if he be
absent from the place where the person in whose behalf it is issued
is detained, on the person having him in immediate custody, by leav-
ing a copy of the writ with either of them.
§ 407 [w»j Service of writ if party conceal himself. K the person to whom
the writ is directed conceal himself, or refuse admittance to the party
attempting to serve the same, it may be served by affixing a copy of
the writ on some conspicuous place on the outside of his dwelling-
house, or of the place where the party is confined or detained.
§ 408 [sto] Return of writ — change of return day. The person serving the
writ shall return it to the proper officer, and, if the time for the
return to the writ has been changed, shall, as soon as may be, deliver
to the person on whose application it was issued a copy of the in-
dorsement changing the time of return. {Form of notice that time
has been changed, page 678.)
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TITLE X] ' HABEAS CORPUS. 537
§ 409 [S90] Penalty for refnsing obedience to writ If the person to whom
the writ is directed refuse, after service, to obey the same, he shall
pay one thousand dollars to the person in whose behalf it was issued,
and the officer to whom it is returned must issue an attachment
against such person, directed to any peace officer, commanding him
forthwith to apprehend and bring such person immediately before
him, and, upon being so brought, he must be committed to the jail
of the county, until he makes due return to such writ, or is otherwise
legally discharged. {Form of attachment , page 679.)
§ 410 [S90] Response to writ, what it must state. The person on whom the
writ is served must state in his return, plainly and unequivocally:
1. Whether he has or has not the party in his custody, or under
his power or restraint.
2. If he has the party in his custody or power or under his
restraint, he must state the authority for and cause of such impris-
onment or restraint.
3. If the party be detained by virtue of any writ, warrant, or
other written authority, a copy thereof must be annexed to the
return, and the original produced and exhibited to the officer pre-
siding on the hearing of such return.
4. If the person on whom the writ is served had the party in his
power or custody, or under his restraint, at any time prior or sub-
sequent to the date of the writ of habeas corpus, but has transferred
such custody or restraint to another, the return must state particu-
larly to whom, at what time and place, for what cause and by
what authority such transfer took place.
5. The return must be signed by the person making the same,
and, except when such person is a sworn public officer, and makes
such return in his official capacity, it must be verified by his
oath.
§ 411. Person detained must be produced — exception. The person to whom
the writ is directed, if it be served, must bring the body of the party
in his custody or under his restraint, according to the command of
the writ, except in the cases specified in the next section.
§ 412 1»»5] Person detained need not be produced — ^when. When, from sick-
ness or infirmity of the person directed to be produced, he can not,
•without danger, be brought before the officer to whom the writ is
returned, the person in whose custody or power he is may state that
fact in his return to the writ, verifying the same by affidavit. If the
officer trying the case be satisfied of the truth of such return, and
the return to the writ be otherwise sufficient, the officer may proceed
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538 HABEAS CORPUS. [tITLE X
to decide on such return, and to dispose of the case as if such party
had been produced, or the hearing thereof may be adjourned until
such party can be produced.
§ 413 [196] Affidavits may be read as evideoce on trial. In the discretion of
the officer before whom the writ is returned, affidavits of witnesses
taken by either party, on reasonable notice to the adverse party, his
agent or attorney, may be read as evidence on the trial of the return.
§ 414 [8fo] Witness' attendance, how secured — enforcement of }ndfment The
officer issuing the writ, and the one before whom it is returned for
trial, shall have power to issue subpoenas for witnesses, and the last-
named officer shall have the same power to compel the attendance of
witnesses, or to punish a contempt of his authority, as a court of
record has; and his judgment on the trial of the writ shall be consid-
ered and be enforced, as if it were a judgment of such court. {How
attendance of witnesses coerced, see sees. 537^ 638 Civil Code.)
§ 415 [s»ft] Officer interested or related not to preside, ^o judge or justice
of the peace shall be qualified to preside upon the trial of a return to
a writ of habeas corpus, who is related by consanguinity or affinity to
the person on whose behalf, or against whom, the writ is granted, or
who is in any manner personally interested in the release or deten-
tion of the person held in custody.
§ 416 [S90] Officer to whom writ may be returned. If the judge before whom
the writ is made returnable be absent from the county at the time,
or be not qualified or able to act, the person serving the writ shall
return it to any of the judges mentioned in subsection one of section
three hundred and ninety-nine, who is in the county at the time,
qualified and able to act; or, if there be none such in the county at
the time, he shall return it to the judge of the county court, if he be
at the time in the county and qualified and able to act; or, if the
judge of the county court be not in the county at the time, or be not
qualified or able to act, he shall return it to a police judge of the city
or town which is the county seat, if there be one at the time in the
county, qualified and able to act, and if there be no such police judge
at the time in the county, he shall return it to the justice of the peace
residing nearest the court-house who is at the time in the county^
qualified and able to act.
§ 417. Notice to defendant of officer writ returned to. If the writ be
returned to any other officer than the one before whom it is made re-
turnable, the person serving it shall at once notify the defendant of the
officer to whom he has returned the writ, and thereupon it shall be the
duty of the defendant to make his return to the writ before such officer.
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TITLE X] HABEAS CORPUS. . 589
§ 418. Objection may be nade to officer presldlof at trial. The party upon
whose application, or the party in whose behalf, the writ is issued ;
or the party against whom it is issued, except where the person in
custody is held upon a charge of having committed a public oflfiense^
may file his affidavit, with the judge or justice proceeding to try the
case, in substance that he believes the judge or justice will not impar-
tially try the case; and, if such affidavit be filed, the judge or justice
objected to shall not preside at the trial ; but the person who served
the writ shall forthwith notify, in the order in which he is directed to
return the writ, a judge or justice who may be in the county and
qualified and able to sit. It shall be the duty of the judge or justice
thus notified to appear at once and try the case. He shall have all
the powers the officer before whom the writ is made returnable could
have exercised. I^'either party shall have the right to £le an affida-
vit objecting to more than one judge or justice.
§ 419 [8t»] Issue — how formed. The party brought before the judge or
justices on the return of the writ, or the person on whose applica-
tion the writ is issued, may deny or controvert any of the material
facts or matters set forth in the return, or except to the sufficiency
thereof, or allege any fact to show that his imprisonment or deten-
tion is unlawful, or that he is entitled to his discharge.
§ 420 C3f« Trial — ^fodgmeot and costs. The judge or justice must there-
upon proceed, in a summary way, to hear such proof as may be pro-
duced against such imprisonment or detention, or in favor of the
same, and to dispose of such party as the justice of the case may
require; and adjudge the costs of the proceeding, including the
charge for transportation of the prisoner or party detained, to be
paid as shall seem right, and make such orders as may be proper.
The payment of the costs may be enforced by attachment or other-
wise by the court to which the proceedings are returned. {See fur-
ther as to costSy Ky. Stat.y sec. 902.)
§ 421 [899] Papers and proceedings to be returned. The papers and pro-
ceedings upon a writ of habeas corpus shall be returned to the clerk
of the circuit court of the county in which the writ was heard, or to
the court in which the prosecution, if any, is pending.
§ 422 [8«6] Person released not imprisoned for same cause — exception. A per-
son delivered upon a writ of habeas corjms shall not again be
imprisoned or committed for the same offense except by the legal
order or process of the court, wherein he shall be bound by recogni-
zance to appear, or of some other court having jurisdiction of the
same cause.
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540 HABEAS CORPUS. [tITLE X
423 [<•«] Proceediofs Iff person fultty off paMic offfeose. Upon the trial of a
habeas corpus^ if the judge or other officer shall be of opinion that
the prisoner has been guilty of a misdemeanor or felony, for which
such prisoner may be liable to be tried, and that the proceedings
against him are so defective that he can not be detained upon them,
the judge or other officer shall admit him to bail, if he be entitled to
bail, to appear at the court having jurisdiction over the case, or
remand him to the custody of the proper officer, to be conveyed to the
proper county for new proceedings to be had against such prisoner.
§ 424 [8f9] Writ may issue against religious or other association. Writs of
habeas corpus shall issue upon the application of the husband, father,
mother, guardian or next friend of any married woman or infant
detained by any religious or other association, or by persons acting
under the authority of such association. The county attorney,
where such detention is made, shall prosecute such writ without fee,
if required to do so.
§ 425 :896] Causes ffor which prisoner removed ffrom custody. A person com-
mitted to prison, or in custody of an officer, for any criminal offense,
shall not be removed from said prison, or delivered to the custody of
any other officer, except in the following cases :
1. By writ of habeas corpus^ or some other legal writ.
2. When he may be delivered to an officer to be removed to
some common jail.
3. In case of fire, infectious disease or other great necessity.
4. When the prisoner is charged, by affidavit, with treason or
felony, committed in some other State or Territory of the United
States of America; in which case he shall, on the demand of the
executive of such State, or the governor of a Territory in the
United States, from which he fled, be sent thither in custody, by
the order of any circuit court, or judge thereof; or may be bound
by recognizance, with good surety, by said court or judge, to appear
at the proper time and place, and surrender himself to the court or
tribunal having jurisdiction of the offense, if the said court or
judge shall, upon consideration of the evidence, be of opinion he
should be put upon his trial.
§ 426. Trial off writ if examining court refuse ball. If an examining court
fail to grant bail to a person charged with the commission of a pub-
lic offense, no writ of habeas corpus^ because of imprisonment under
the order of such court, shall be made returnable before, or tried by,
any other officer than the judge of the court before which he is held
to answer.
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TITLE Xl] IMPEACHMENT. 541
§ 427. Issual and service on any day — powers of person execotini;. Any writ
or process authorized by this chapter may be issued and served on
any day or at any time ; and if a private person be authorized to
serve the writ, he shall have the same powers as a sheriff in the exe-
cution of the writ. {See further as to powers of officer^ Ky. Stat.j sec.
4S83)
§ 428. Civil suit not affected by proceedings. The proceedings and judg-
ment upon the writ of habeas corptis shall not conclude, or be evidence
in, any civil suit involving the rights decided by the order or judgment
on the writ of habeas corpus.
§ 429. Second writ may issue — fudge wiio may try. The judgment upon a
trial under a writ of habeas corpus shall not prevent the issuing of
another writ for the same cause, nor be given in evidence on the trial
under a second writ; but no officer, except the judge of a circuit,
criminal, chancery or common pleas court, shall try a writ of habeas
corpus who has tried a former writ issued for the same cause.
TITLE XI.
IM1>EACHMENT.
[SBB CONSTTTUTION, BEC 66, AND KY. STAT., SEC. 2172, FOR OTHER PROVISIONS.]
§ 430. Impeachment defined.
§ 431. Articles of impeachment.
§ 432. Articles must state grounds.
§ 433. Committee to be appointed to prosecute.
§ 434. Senate to appoint day for trial— accused summoned.
§ 435. Process to issue for production of testimony*
§ 436. Witnesses* attendance may be coerced.
§ 437. Privileges and pay of witnesses.
g 438. Oath to be taken by senators.
§ 439. Absence that prevents senator from voting on final decision.
§ 440. Costs against unsuccessful party.
§ 441. Prosecutor — when liable for costs.
§ 4J0 [M] Impeachment defined. An impeachment is the -prosecution,
by the House of Representatives, before the Senate, of the governor
or other civil officer, for misdemeanor in office.
§ 430. Inpeachneots. See Low v. Com., iams, 79 Ky. 42. These cases are not
3 Met. 337; McBride v. Com., 4 Bush directly in point, but they illustrate
331 ; Brown v. Grover, 6 Bush 1 ; Curry the question; and see OonstitutiDn, sees.
V.Stewart, 8 Bush 560; Com. v. Will- 66-69.
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642 IMPEACHMENT. [tITLB XI
§ 431 [sfT] Articles of Impeachment The articles of impeachment are
the written accusation of the officer, drawn up and approved by the
House of Representatives.
§ 432 [sts] Articles most state jronods. The articles of impeachment shall
state with reasonable certainty the misdemeanor in office for which
the officer is impeached ; and if there be more than one they shall be
stated separately and distinctly.
§ 433 [8t93 Committee to be appointed to prosecute. When the articles of
impeachment have been approved by the House of Representatives,
and an impeachment ordered, a committee shall be appointed to pros-
ecute it, whose chairman, within five days, shall lay the same before
the Senate.
§ 434 [400] Senate to appoint day for trial — ^accused sommoned. The Senate
shall appoint a day for hearing the impeachment, and the accused
shall be summoned, by a precept issued by the clerk of the Senate,
to appear on that day. The precept shall be served by delivering a
copy of the precept and of the articles of impeachment to the
accused in person, if to be found, or leaving the copies at his resi-
dence with some white member of his family over sixteen yeare
of age.
§ 435 C401J Process to Issue for production off testimony. The clerk of the
Senate, at the request of the chairman of the committee appointed
to prosecute, or of the accused, shall issue process for summoning
witnesses, and for producing books and papers; and in case of diso-
bedience of the process, the Senate shall order the clerk to issue proc-
ess for arresting the witnesses and seizing the books and papers,
which process may be executed by the peace officers of the several
counties, or by officers specially appointed for that purpose by the
Senate.
§ 436 [4oa] Witnesses* attendance may be coerced. The Senate shall have
power of coercing the attendance of witnesses, and of compelling
them to testify, and of coercing the production of books and papers,
by fine and imprisonment, to such an extent as may be necessary.
§ 437 [403] Privileges and pay off witnesses. Witnesses shall have the same
compensfition for travel and attendance, and the same exemptions in
going, remaining and returning as witnesses in the circuit courts, and
officers executing the process and orders of the Senate shall have
like fees for their services.
§ 438[*o4i Oath to be taken by senators. Before the Senate proceeds to
try the impeachment, the Speaker and every senator present shall
take the following oath or affirmation: "I do solemnly swear (or
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TITLE XIl] REMOVAL PROM OFFICE OF CLERKS OP COURTS. 543
affirm) that I will faithfully and impartially try the impeachment
against A B, and give my decision according to the law and evi-
dence."
§ 4M [406] Atoence that prevents senator from voting on final decision. The
Senate shall determine what amount of absence of a senator during
the trial shall exclude the senator from voting on the final decision.
§ 440 [«o0] Costs against nnsnccessful party. If the accused be acquitted,
he shall be entitled to his costs, to be taxed by the clerk of the Senate
and paid by the treasurer ; and if convicted he shall pay the costs, to
be taxed by the clerk and recovered by motion, by the attorney-gen-
eral, in the Franklin Circuit Court, at the first term thereof, without
notice, or afterward on notice.
§ 441 [40T] Prosecutor — when liable for costs. If the impeachment be
prosecuted on the petition of some citizen of the Commonwealth,
whose name is set at the foot of the article of impeachment, he shall
be liable for the costs of the accused if he be acquitted, and also for
the costs of prosecuting the impeachment, and in that case the Com-
monwealth shall not be liable to pay any part of the costs; and if
the accused be convicted, the petitioner shall be entitled to recover of
the accused the costs of the impeachment, for which he is liable ; the
costs to be taxed by the clerk of the Senate, and recovered by suit in
a court of competent jurisdiction.
TITLE XII.
PROCEEDINGS POR THE REMOVAL FROM OFFICE OF CLERKS OF
COURTS.
[see further, as to removal of clerks, constitution, sec. 124.]
§ 442. Clerks Court of Appeals may remove and causes for.
§ 443. Prosecutor necessary — requisites of information.
§ 444. Time of trial — issual and service of summons.
§ 445. Witnesses' attendance — how secured.
§ 446. Postponement of trial.
§ 447. Prosecutor to secure costs.
§ 44S. Costs against unsuccessful party.
§ 449. Prosecutor — when not necessary.
§ 450. Clerk pro tem. may be appointed.
§ 442 [408] Clerks Court of Appeals may remove and causes for. Clerks of the
Court of Appeals and clerks of circuit, county and police and city
§442. Removal of clerks. SeeConstitu- M. 174; Com. v. Arnold, 3 Litt. 309;
tion, sec. 124 ; and Com. v. Rodes, 6 B. Com. v. Rodes, 1 Dana 595.
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544 REMOVAL PROM OFFICE OF CLERKS OF COURTS. [TITLE XII
courts may be removed from office by the Court 6{ Appeals, upon a
written information signed and presented in said court by the
attorney-general, charging the following causes of removal :
1. Any act, omission or neglect by such clerk, for which the
statutes have prescribed a forfeiture of office.
2. Any malfeasance in office or neglect of official duty that the
court may consider sufficient cause of removal.
§ 443 [409] Prosecutor necessary — requisites of ifllormation. Except in the
case provided in section four hundred and forty-nine, there shall be
a prosecutor responsible for costs named in the information. The
information shall state the offense charged with the certainty required
in an indictment; and if there be more than one offense they shall be
stated separately and directly.
§ 444 [410] Time off trial — issual and service of summons. Upon the infor-
mation being presented, the court shall fix a day of trial and the
clerk of the Court of Appeals shall issue a summons warning the
defendant to appear on that day ia,nd answer the information. The
summons shall be served by delivering a copy of the summons and
of the information to the defendant, if he be found, and if not, to any
deputy or white person remaining in his office by his employment,
and if there be none, then by affixing such copies to the door of the
clerk's office of the defendant.
§ 445 [411] Witnesses* attendance, how secured. The clerk of the Court of
Appeals shall, on request of the attorney -general or of the defendant,
issue subpoenas for witnesses, and the court may order process for the
production of books and papers, and may compel obedience to the
subpoenas and other process, and compel witnesses to testify, by fine
and imprisonment, to the same extent as circuit courts.
§ 44# [4n] Postponement of trial. The court may grant continuances or
postponement of the trial for sufficient cause.
§ 447 [418] Prosecutor required to secure costs. If the court be satisfied
that the prosecutor is insolvent, or a non-resident, security for the
costs may be required.
§ 448 [414] Costs against unsuccessful party. If the court render a judg-
ment of removal from office against the clerk, a judgment shall also
be rendered against him for the costs of the prosecutor; and if the
clerk be acquitted, he shall recover a judgment against the prosecutor
for his costs.
§ 449 [416J Prosecutor — when not necessary. If a clerk have been con-
victed by the judgment of a court of competent .jurisdiction of an
offense which, by the provisions of a statute of Kentucky, creates a
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TITLE XIl] REMOVAL FROM OFFICE OF CLERKS OF COURTS. 545
forfeiture of his office, upon a transcript of the record of such con-
viction being produced to the attorney -general he shall forthwith file
an information, without any prosecutor being named therein, against
such clerk, and file therewith the transcript of such record, and there-
upon the same proceedings shall be had as upon informations with a
prosecutor.
§ 450 C4i«] Clerk pro tem. may be appoioted. If an information be filed
against the clerk of the Court of Appeals, the court may appoint a
person to act as clerk during the prosecution, in all matters connected
with the prosecution.
(SB)
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APPENDIX.
Chaptbk I. Jurisdiction of courts, pagb 547.
II. Courts having continuous sessions, paob 557.
III. Courts having four judges, page 563.
IV. Special judges, page 5C9.
y. Change of venue, page 571.
VI. Removal of actions and prosecutions to United States
Courts, page 580.
VII. Rules op Court op Appeals, page 593.
CHAPTER 1.
JURISDICTION OF COURTS.
Article 1.
2.
3.
4.
5.
0.
7.
Courts of Appeals, page 547.
Circuit courts, page 548.
Quarterly courts, page 549.
County courts, page 549.
Fiscal courts, page 550.
Justices* courts, page 550.
Police courts, page 551.
ARTICLE 1.
COURT OF APPEALS.
[§ 949, Ky. Stat.] Power vested in the court and Judges. Power is vested
in the Court of Appeals to administer oaths, punish contempts and
make rules consistent with law for the government of its proceed-
ings and to issue such writs as may be necessary to give it a general
control of inferior jurisdictions; and to any judge thereof power is
given to reinstate attachments and injunctions. {Constitution^ sec.
110).
[§ 950, Ky. Stat.] Jurisdiction in civil cases. No appeal shall be taken
to the Court of Appeals from a judgment for the recovery of money
or personal property, if the value in controversy be less than one
hundred dollars, exclusive of interest and costs, nor to reverse ajudg-
Art 1. Court of Appeals — ]arisdictiofl sees. 334-340, and notes thereto, page
in civil cases, see sec. 734, and notes 513; in misdemeanor cases, see sees. 347,
thereto, page 361 ; in felony cases, see 348^ and notes thereto, page 520.
(547)
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548 JURISDICTION OF COURTS. [APPENDIX
ment granting a divorce, or punishing contempt; nor from any order
or judgment of a county court, except in actions for the division of
land and allotment of dower, nor from any order or judgment of a
quarterly court, city court, police court, fiscal or justice's court, nor
from a bond having the force of a judgment. In all other civil cases
the Court of Appeals shall have appellate jurisdiction over the final
orders and judgments of all courts.
. Jorisdiction \n criminal cases. See Criminal Code, page 513.
Special Judges — See Constitution, sec. 117; Ky. Stat., sec. 952.
ARTICLE 2.
CmCUIT COURTS.
[§ 966, Ky. Stat.] Original Jurisdiction. The Circuit Court shall be a
court of record and shall have original jurisdiction of all matters
both in law and equity of which jurisdiction is not exclusively
delegated to some other tribunal, and shall have jurisdiction in all
cases where the title to land is in question, or in which it is sought
to enforce a lien upon, or to subject land by provisional remedy to the
payment of debts. (Exclusive jurisdiction of justices* courts, see article
6, page 550; exclusive jurisdiction of police courts, see article 7, page
651.)
[§ 978, Ky. Stat.] Appellate Jurisdiction. Appeals may be taken to
the circuit court from all orders and judgments of the fiscal court or
quarterly court in civil cases where the value in controversy, exclu-
sive of interest and costs, is over twenty-five dollars and from all
Art. 2. (1) Circuit courts appellate jnrisdlc- for separate amounts, the aggregate
tlon. In civil cases, see sec. 724, and claimed against aU determines the juris-
notes, page 354 ; in criminal cases, see diction. Wilde v. Haycroft, 2 Diiv.
sees. 362. 363, page 524. 309.
(2) Orisinal in civil cases; amount in (3) Circuit courts have jurisdiction to
controversy. Several demands, amount- enforce liens and subject lands to the
ing in the aggregate to more than fifty payment of demands leas than fifty dol-
dollars, united in the same petition will lars. Bush v. Williams, 6 Bush 405 :
give the circuit court jurisdiction, al- Craig v. Garnett, 9 Bush 97.
though each debt with its interest is be- (4) State courts have Jurisdiction of
low that sum. Bakewell v. Howell, 2 an action against a national bank under
Met. 268. So if an obligation for the sec. 5198, Rev. Stat., U. S., to recover
payment of installments of less than the penalty for taking usurious interest,
fifty dollars each, enough installments Henderson Nat. Bank v. Alves, 91 Ky.
being due to exceed fifty dollars. Brown 142.
V. Brown, 10 B. M. 247. Where several (5) Orisioal Id crimiiial cases. See Grim-
are jointly suable on the same contract inal Code, sees. 13, 14, 18, 20 to 25.
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judgments of the county court where the amount in controversy is
over fifty dollars, exclusive of interest and costs, and from all judg-
ments and orders of said court in cases of bastardy or in the settlement
of the accounts of personal representatives, assignees, guardians,
trustees, curators and other fiduciaries and from orders granting,
revoking or refusing letters testamentary, or of administration, or
appointing or refusing to appoint or removing curators, guardians,
trustees or committees of estates or granting or refusing to grant
druggist, tavern or liquor license and from judgments in proceedings
to condemn land for any purpose, and in all other cases allowed by law.
Appellate Jorisdictlon in criminal cases. See Criminal Code, page 524.
ARTICLE 3.
QUARTEKLT COURTS.
[§ 1051, Ky. Stat.] Jorisdictlon in civil cases. The quarterly court in
civil cases shall have jurisdiction, concurrent with justices' and city
or police courts, of all actions within its county for the recovery of
money or personal property where the value in controversy is one
hundred dollars or under, exclusive of interest and costs, and con-
current jurisdiction with circuit courts of all such actions where the
value in controversy is over fifty and not more than two hundred
dollars, exclusive of interest and costs.
[§ 1053, Ky. Stat.] Motions against constables and their sureties for
failure to pay over money collected.
[§ 1054, Ky. Stat.] Appellate Jurisdiction. Appeals may be taken to
the quarterly court from all judgments and orders of justices', fiscal,
city or police courts when the value in controversy is over ten dollars,
exclusive of interest and costs. (Provisions of Code as to appeals^ sees.
72^ to 732.)
ARTICLE 4.
COtTNTY COURTS.
[§ 1057, Ky. Stat.] Jurisdiction. The county court shall have juris-
diction to probate wills, appoint and remove personal representatives.
Art 4. (1) County courts are courts of tribunals, as many powers not judicial
limited jurisdiction and derive all their are vested in them. Pennington v.
powers from some express statutory en- Wool folk, 79 Ky. 13 ; see further, Ky.
actment. Gilbert v. Bartlett, 9 Bush Stat., page 466.
49; and are not exclusively judicial
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650 JURISDICTION OF COURTS. [APPENDIX
guardians, trustees, committees, curators and other fiduciaries, to
grant tavern, drug and liquor license and such other jurisdiction as
may be conferred upon it by law.
ARTICLE 5.
FISCAL COURTS.
[§ 1840, Ky. Stat.] Jnrisdictioii. The fiscal court shall have juris-
diction to appropriate county funds authorized by law to be appro-
priated, to erect and keep in repair necessary public buildings, secure
a sufficient jail and a comfortable and convenient place for holding
court at the county seat; to erect and keep in repair bridges and
other structures and superintend the same, to regulate and control
the fiscal affairs and property of the county, make provision for the
maintenance of the poor and provide a poor house and farm and pro-
vide for the good condition of the highways in the county and to
execute all of its orders consistent with the law and within its juris-
diction, and shall have jurisdiction of all such other matters relating
to the levying of taxes as is by any special act now conferred on the
county court or court of levy and claims.
ARTICLE 6.
JUSTICES' COURTS.
[§ 1086, Ky. Stat.] Civil Jurisdiction, Justices' courts shall have
jurisdiction, concurrent with circuit and quarterly courts of this
Commonwealth, of all actions and proceedings for the recovery of
money or personal property in civil cases where the matter in con-
troversy, exclusive of interest and costs, does not exceed one hundred
dollars, and shall have jurisdiction, exclusive of circuit courts and
concurrent with quarterly courts in civil cases, of all actions and pro-
ceedings for the recovery of money or personal property when the
value in controversy, exclusive of interests and costs, is fifty dollars
or under, and shall have jurisdiction, concurrent with quarterlj' courts,
of motions against constables for failing to discharge their duty, and
such other jurisdiction as may be provided by law.
(2) Trial by county Judge off mlsdeneaoor Trial by county judge of persous in jail
cases transferred from circuit court. Ky. charged with misdemennor. Seepage
Stat., sec. 1070; Criminal Code. sec. 15. 398.
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[§ 1093, Ky. Stat.] Crimiaal jorisdlctioo. Justices' shall have juris-
diction, exclusive of circuit courts, in all penal cases the punishment
of which is limited to a fine not exceeding twenty dollars ; and
jurisdiction, concurrent with circuit courts, of all penal cases the
punishment of which is limited to a fine not exceeding one hundred
dollars or imprisonment not exceeding fifty days, or both. {See fur-
ther, Criminal Codey sees. 13-18.)
ARTICLE 7.
t
POLICE COURT8.
Subdivision 1.
Cities op the first class.
2.
Cities op the second class.
3.
CrriEs OP the third ct.abh.
4.
Cities op the fourth class.
5.
Cities of thp fifth class.
6.
Towns of the sixth class.
SUBDIVISION 1.
CITIES OP THE FIRST CLASS.
[§ 2912, Ky. Stat.] Jurisdiction— examining court. Said court shall
have original and exclusive jurisdiction in all cases of violations of
municipal ordinances and by-laws occurring within the corporate
limits of the city, and such criminal jurisdiction within the said
limits as justices of the peace have, with the necessary power to
carry into effect the jurisdiction given; said court shall have exclusive
jurisdiction, as an examining court, of all felonies and misdemeanors
committed within the corporate limits of the city, and shall exercise
all the powers and duties of examining courts. The stenographer
of the court shall take down all the evidence given in examining
trials; and, at the conclusion of the trial, the court shall commit or
discharge the accused, or hold him to answer before the proper
court, as may be adjudged. If bond be required of the accused to
appear and answer, said court shall have power to order the bond to
be taken in such sum as it may direct. The bond, together with the
evidence, shall be transmitted by the clerk within twenty-four hours
to the proper court. The bond shall be in writing, and it shall not
be invalidated by any irregularity in its form, or in the manner of
taking or giving the same. Persons arrested under a charge of
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552 JURISDICTION OF COURTS. [APPENDIX
crime lAust be presented to the court for trial within twenty-four
hours after arrest, unless Sunday intervene.
[§ 2913, Ky. Stat.] Fines and pentltles — imprlsoiiineiit — hard labor — custody
of children. Said court shall have power to impose such fines and
penalties as may be prescribed by the Statutes of the State, or by
the ordinances of the city, but no imprisonment exceeding thirty
days shall be ordered, and no fine exceeding fifty dollars shall be im-
posed without the intervention of a jury, unless the right to have a
jury is waived by the party to be tried. Cases in which the right to the
custody and care of children is involved shall be tried by the court.
When imprisonment is prescribed by the judge or jury trying the
case, it shall be in the discretion of the judge or jury to direct
whether or not the imprisonment shall be with hard labor, unless the
statute imposing the penalty distinctly presents the exercise of such
discretion. (See further as to powers of court y Ky. Stat.^ sees, '2914.-
^921; appeals from, see Ky. Stat., sec. 2922.)
SUBDIVISION 2.
CITTES OF THE SECOND CLASS.
[§ 3147, Ky. Stat.] Jurisdiction of police court. Said court shall have
exclusive original jurisdiction in all prosecutions for the violation of
the ordinances of the city, and jurisdiction, concurrent with the cir-
cuit court and justices of the peace, of all pleas of the Commonwealth
arising within the limits of the city, except cases of felony; and said
court shall have power and authority to take recognizances from per-
sons charged with oftenses recognizable before said court, to appear
and answer the same as the circuit courts have, and a like power
to enforce compliance with the same, and as to committing criminal
offenders and sending them on for trial, said court shall have all
power given by the general law to examining courts.
[§ 3148, Ky. Stat.] Petit larceny and vasxancy — Jurisdiction. Said court
shall have jurisdiction of all cases of petit larceny and vagrancy aris-
ing in said cities, respectively, and the justices of the peace are hereby
required to make the recognizances of all persons charged with being
vagrants or with petit larceny within said several cities returnable to
the police court instead of the circuit court, and upon conviction of
vagrancy or petit larceny, the person so convicted shall be sent to
labor in the city prison or work-house for not less than three nor more
than twelve months; presentment or indictment by a grand jury shall
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not be necessary in cases of vagrancy or petit larceny, but thfe person
charged with either of these offenses may be arrested on warrant and
tried by the police judge, and if found guilty, convicted by him ;
women may be so tried and convicted on the charge of being vagrants.
[§ 3149, Ey. Stat.] Riots, routs and onlawful assemblies — ^forisdiction —
arrest of offenders. The jurisdiction of the police judge shall extend to
all cases of riots, routs or unlawful assemblies within the city. When-
ever said judge shall be advised or receive information on oath of any
rout or any unlawful assemblies of people, for the purpose of gam-
ing or any other unlawful purpose whatever, it shall be lawful for
him to issue his warrant to arrest all such offenders directed to the
sheriff, or any constable of the county, or the police of the city, and
if no officer be at hand to serve such warrant, then to such discreet
persons as said judge shall appoint, returnable before some justice of
the peace of the county, on which warrant it shall be the duty of the
officer or other person to arrest and bring before said justices of the
peace of the county all persons who shall be found so assembled, to
be dealt with by the justices according to law; and it shall be the
duty of the citizens of the city and county to attend the officer or
other person, if they should be thereunto summoned, to aid and assist
in arresting the persons so found guilty of infracting the law.
[§ 3159, Ky. Stat.] Recofnizaoces for appearance and to keep the peace.
Said court shall have power to take recognizances f6r the appear-
ance in said court of persons charged with offenses recognizable in
said court, also recognizances to keep the peace and be of good
behavior for the period of one year.
[§ 3164, Ky. Stat.] Territorial Jarisdiction— Oliio and Licking rivers. The
territorial jurisdiction of the said court shall be co-extensive with
the corporate limits of the said several cities; and said court, in
cities bordering on the Ohio river, shall have jurisdiction over said
river opposite to the city to low-water mark on the Ohio side, and
cities on the Licking river over said Licking river to the opposite
shore.
SUBDIVISION 3.
CrriES OF THE THIRD CLASS.
[§ 8359, Ky. Stat.] Jarisdiction — exclusive — concurrent The police
court shall have exclusive jurisdiction of all prosecutions for viola-
tions of the ordinances or by-laws of the city occurring within the
corporate limits of the city, and the offender may be summoned or
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564 JURISDICTION OP COURTS. [APPENDIX
arrestedr in the city or elsewhere. It shall also have the concurrent
jurisdiction with the justices of the peace of all violations of the
laws of the Commonwealth occurring within the corporate limits of
the city, and the offender may be summoned or arrested in the city
or elsewhere. It shall also have jurisdfction to try and adjudge for-
feitures on all bails and recognizances entered into or deposited in
prosecutions pending in said court. All prosecutions for violations
of the ordinances or by-laws of the city occurring outside of the cor-
porate limits of the city may be prosecuted in the name of the city,
and for its benefit, in the police court or in any court of competent
jurisdiction. {Appeals frortiy see Ky. StaL^ sec, 3367.)
[§ 3362, Ky. Stat.] Examioioji: conrt — ^fees. The police court may act
as an examining court, as justices of the peace or judge of the
county court are or may be authorized to act, and when so acting
the presiding judge of same shall be allowed the same fees, fees to be
paid in the same way, and they shall be in addition to the salary
paid him by the city.
SUBDIVISION 4.
CrriES OP THE FOURTH CLASS.
[§ 3513, Ky. Stat.] Examioinf court — feoeral powers — inrisdictioo — jmy
fee. The judge of the city court shall be commissioned by the gov-
ernor; he shall be a conservator of the public peace and may order
arrests for all offenses against the laws of the State or ordinances of
the city; and for those committed within his presence he may order
arrests without warrant. He shall have full power and authority to
require bail, and receive the acknowledgment and execution of recog-
nizances of bail in all cases coming before him in which bail is or
may be authorized hereafter, or required by the laws of the land, and
to take recognizances or bail for good behavior and to keep the
peace, the same as circuit courts have, and like power to take the
same as forfeited and pronounce judgment thereon and to enforce full
compliance therewith. Said court shall have the power as an exam-
ining court in all cases except homicide, and shall have original
concurrent jurisdiction within the limits of the city of all offenses
within the jurisdiction of justices of the peace. The city court shall
have civil jurisdiction co-extensive w^ith the county, and equal to that
of justices of the peace. Said court shall have jurisdiction over affrays,
riots and routs, breaches of the peace, unlawful assemblies, and cases
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of indecent or immoral behavior or conduct calculated to disturb the
peace and dignity of said town ; over all cases of drunkenness, running
horses, profane swearing, firing guns or pistols, carrying concealed
deadly weapons, making reports by burning powder or crackers or
otherwise, blowing horns, flying kites, crying aloud by day or night,
and all other riotous conduct whatsoever within said town, all of
which are hereby declared to be misdemeanors, for which fines or
imprisonment, or both, may be prescribed by ordinance. He shall
have exclusive jurisdiction of all offenses or causes arising out of
ordinances enacted by the council for the enforcement of the powers
granted them by law. He shall have power to issue summons for
witnesses in cases pending before him, and upon their failure to attend
may award compulsory process to compel their attendance. He shall
have power, without the intervention of a jury, to fine and imprison
for contempt, provided the fine shall not exceed ten dollars nor the
imprisonment twelve hours. He shall have power and authority to
administer oaths, take depositions and grant injunctions, issue attach-
ments and distress warrants, writs of habeas corpuSy in the same
manner and under the same restrictions and in the same causes that
county judges are now or may hereafter be authorized by law. In all
trials under the ordinances of the city, when no jury is required, the
court shall tax one dollar as the judge's costs therein. In jury trials
under the ordinances of the city the court shall tax two dollars as the
judge's costs therein. (Appeals froniy see Ky. Stat.j sees. 3519y 35W.)
SUBDIVISION 5.
CITIES OF THE FIFTH CLASS.
[§ 3651, Ky . Stat. ] Jnrisdictioa — terms — practice — appeals. A police
court is hereby established in such city to be held by the police judge
of such city. Said police court shall have jurisdiction, concurrent
with the justice's courts, of all actions and proceedings, civil and
criminal, except that in criminal cases the jurisdiction shall be con-
fined to cases occurring within the city, and shall always be open for
trial of criminal and penal causes, and shall hold monthly terms of
said court for the trial of civil cases, the terms to be fixed by the
city council, and shall have exclusive jurisdiction of all actions for
the recovery of any fine, penalty or forfeiture prescribed for the
breach of any ordinance of such city, of all actions founded upon
any obligations or liability created by any ordinance, and of all pros-
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556 * JURISDICTION OF COURTS. [APPENDIX
ecutions for any violations of any ordinance. The rules of practice
and mode of proceedings in such police court shall be the same as
are, or may be, prescribed by law for justices' courts, and appeals
may be taken from all judgments of said police courts, in the time
and manner, and where the amount in controversy authorizes appeals
from justices' courts.
SUBDIVISION 6.
TOWNS OP THE SIXTH CLASS.
[§ 3710, Ky. Stat.] Jnrisdictioo — terms — practice — appeals. A police
court is hereby established in such towns, to be held by the pohce
judge of such towns. Said police court shall have jurisdiction, concur-
rent with the justices' courts, of all criminal cases and proceedings,
but such jurisdiction shall be confined to cases occurring within the
city, and said courts shall always be open for the trial of penal and
criminal causes ; and said police courts in cities and towns of the sixth
class, having a population of two hundred and fifty or more, shall
have jurisdiction, concurrent with justices' courts, in civil actions and
proceeding's; and a court shall be held twelve times each year, at inter-
vals of one month, for the trial of civil cases, the terms to be fixed by
the board of trustees. Said court shall have exclusive jurisdiction of
all actions for the recov^ery of any fine, penalty or forfeiture pre-
scribed for the breach of any ordinance of such town and of all prose-
cutions for any violation of any ordinance. The rules of practice and
mode of proceeding in said court shall be the same as are prescribed
by law for justices' courts, and appeals may be taken from all judg-
ments of said police courts, in the time and manner and where the
amount in controversy authorizes appeals in cases from justices'
courts.
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CHAPTER II.
COURTS HAVING CONTINUOUS SESSION.
[Kentucky Statutes, page 455.]
[Sections 980 to 983, inclusive, relate exclusively to aourts in counties having a
population of less than 150,000.]
§ 9^. Couaties coostitatiajj; separate districts — places of holdiajj; courts — ^jnris-
dictioa — diaries — publications ia official newspaper — roles of court — ^judicial notice.
That in counties having a population of less than one hundred and
fifty thousand, and which constitute separate judicial districts, the
circuit courts shall be in continuous session, and shall be held in cities
of the second class, where there are or may be such cities, but the
judge of such courts shall hold part of such sessions at the coranty seat
of the county where the same is not such city, such part to be not
less than two weeks if the business of the court require so long, in
February, June and October of each year. And all suits in which
the defendants, or the greater number of defendants, reside nearer to
said county seat than to said city of the second class, shall be docketed
and tried at said county seat, and the process in such cases shall so
indicate. Foreign corporations, non-residents of the county, and
common carriers whose lines extend into any part of said city or
county, shall be deemed residents of the places, and the plaintiff in
any action against any such defendant may select at which place he
will have the case docketed and tried, and the process shall be made
by the clerk to so indicate. By consent, parties may have their case
tried at either place. And when in any such county there is a city of
the second class, which city has an official newspaper, then all adver-
tisements, notices, steps and proceedings in causes in such court of
which publication is required by law, or by rule of such court, or of
which publication is ordered or directed by the court or judge thereof
to be made, shall be published in such official newspaper, but at not
greater than the regular advertising rates. That in counties where
circuit courts hold sessions in more than one place in the county,
juries shall be selected and drawn at each place as now required by
law to be selected and drawn for the county. That the circuit courts
may, from time to time, cause such rules as they may adopt to be cer-
tified to the Court of Appeals, and when this is done, the Court of
Appeals shall take judicial notice thereof, and the same need not be
copied into any transcript.
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658 COURTS HAVING CONTINUOUS SESSION. [APPENDIX
§ 981. Qraad inries — oot less thao four — places of meetiojj;. Jadges of said
court shall cause not less than four grand juries to be summoned and
impaneled each year, one of which shall meet at the comity seat —
not a city of the second class — and he may cause as many more to be
summoned and impaneled as he may deem proper.
§ 982. Asslfameot of cases for trial — mles of coort The judges of said court
shall have power to assign for trial all cases, whether ordinary, equi-
table or criminal, for such days as, in his discretion, will best conduce
to the convenient dispatch of business ; and may, from time to time,
prescribe and change rules of court regulating the conduct of business
therein.
§ 983. Provisloa for retara of process. In all actions commenced in any
of such counties in courts having jurisdiction similar to circuit courts,
between the date of the passage of this act and the first Monday in
January, in one thousand eight hundred and ninety -three, all process
shall be returned to the circuit court of such county, and within
twenty days from said first Monday in January, one thousand eight
hundred and ninety-three.
§ 984. Practice prescribed. That the practice in circuit courts having
continuous session shall be as hereafter prescribed.
§ 985. Juries — maoner of selectiajj; aad sommoainf . Juries shall be
selected and summoned in the same manner as is provided for circuit
courts not having continuous session, except that the selection may
be made on the first judicial day of the court in each month.
§ 986. Bail boads — summons. Bail bonds shall provide for the appear-
ance of the accused on a day certain ; and summons in criminal
cases shall require the appearance on the first Monday of same month
named therein.
§ 987. Cri/riinal and penal cases — terms — days for motions and trials. In all
criminal or penal cases in which an act is required to be done or
motion made, or case set for trial at a given term by the law appli-
cable to courts having terms, said act shall be done, or motion made,
or case set for trial, on a day of a corresponding calendar month, as
if each month, beginning with the first Monday of a calendar month,
were a term.
§ 988. Control of iadji:ment8 for sixty days. The court shall have control
over its judgments for sixty days, as circuit courts have over their
judgments during the term in which they are rendered.
S 988. Power over Jadgneot for sixty days. & R. & L. Co. v. Kerr, 78 Ky. 12 ; John-
This section is the same as sec. 772» of son v. Johnson, 88 Ky. 275 ; Johnson v.
Civil Code, omitted from this revision. Stivers, 95 Ky. 128.
See, construing that section of Ctxle, L.
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§ 989. Taxes oo real property — summary proceediii|:8. The court may, in
actions for sale of real property, determine summarily, with or with-
out written pleadings, the amount of any State, district or municipal
taxes or assessment upon the property to be sold, and shall provide
for the payment of the same in the judgment; and if the plaintiff
fail to ask therefor, the purchaser shall be entitled, at any time before
payment of the purchase price, to a credit for the amount thereof.
§ 990. Rule docket to be kept by clerk. The clerk shall keep rule
dockets, in which he shall enter the names of the parties in each case,
the issuing and return of process, and a memorandum showing the
substance of each order of court or step taken in the clerk's office,
and shall receive five cents for each order or step so entered, to be
taxed as costs.
§ 991. Equity and common law docket. He shall also keep equity and
common law trial dockets.
§ 992. Record of fiducial settlements — ^fees. The clerk shall record, in
proper books, the statements of all settled accounts of fiduciaries made
in such court, and shall be entitled to the same fees as clerks of
county courts for similar services, to be paid by the fiduciary and
charged to the trust estates.
§993, Equity trial docket — cases against cities. On the equity trial
docket shall be entered the jactions that are ready for trial. Said
docket shall be called at such times as the court may deem proper,
when the actions thereon shall be heard, or the trial be postponed to
a future day, or the action be remanded. No case in which any city
is a party shall be submitted on motion or trial, unless the name of
the said city shall appear in the style of case on the docket in which
said case is set for motion or trial.
§ 994. Motions placed on equity docket Any motion made and assigned
to a future day for hearing may be placed upon such docket.
§ 995. Pleadings admitted true — action docketed. When a party consents
that the pleadings of the opposite side may be taken as true, the
action may be at once placed on such trial docket.
§ 996. Failure to plead — action docketed. Any party may place the
action on such trial docket, when the time allowed to the opposite
party to plead has expired, without such pleading being filed: Pro-
§989. Taxes— payment out of proceeds of the chancellor had no power to make
In Gay v. City of Lou., 93 Ky. provision for the payment of taxes due
849, it is held that under sec. 773, of by a decedent unless the tax bill was
Civil Code (omitted from this revision), verified, as other claims against dece-
and which was same as this section, that dents* estates are required to be.
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560 COURTS HAVING CONTINUOUS SESSION. [APPENDIX
videdy That if any issue shall have been formed thirty days shall
have expired since it was formed,
§ 997. New trial ia equity — wlieo applicatioo to be made. Any application
for a new trial in an equitable action or proceeding, except for
newly discovered evidence, shall be made within fifteen days after
the judgment is rendered; and if the application be for cause men-
tioned, it shall be made as provided by general laws as to courts
having terms, sixty days being counted as a term.
§ 998. Vacatioo or modification of jodfmeot. Proceedings to vacate or
modify a final order for grounds for which, in courts having terms,
it might be vacated after the term at which it was rendered, may be
had in reference to any order or judgment of the court, after expira-
tion of sixty days from its rendition. A motion to vacate a judg-
ment, because of its rendition before the action could regularly be
placed upon the trial docket, shall only be entered within three
months after its rendition.
§ 999. Revivor of actions — cause sliowo aji:ain8t. Within thirty days after
the service of an order to revive an action, the party upon whom it
is made may show cause against the revivor; and if sufficient cause
be not shown within that time, the action shall stand revived.
§ 1000. Revivor — ^waminf order to allow sixty days. An order warning
parties to appear and show cause why an action should not be
revived shall allow sixty days for their appearance ; and if within the
said period sufficient cause be not shown to the contrary, the action
shall stand revived.
§ 1001. Amended petition before answer. The plaintiff may, without
leave, amend his petition at any time before answer is filed.
§ 1002. Judicial sales — deposit required. The court may by rules require
purchasers at judicial sales to deposit with the officers making the
sale, at the time of sale, a specified sum of money, sufficient to cover
the expense of a re-sale ; and if such deposit be not made at the
time, the officer shall at once re-sell the property.
§ 1003. Defendant allowed twenty days to answer. The time fixed in the
summons for the defendant to answer shall be twenty days after the
service thereof, if in the county where such courts sit, and thirty
days if elsewhere in the State.
§ 1004. When defendant to answer — waminji: order — constructive service.
The defense to an action shall be filed within twenty days after the
service of the summons in the county where such court sits, or within
§ 1004. Coostractive service. See Irish from this revision), substantially like
B. & L. Assn. V. Clemons, 78 Ky. 79, this section,
construing sec. 809, Civil Code (omitted
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thirty days after such service elsewhere in the State. Every warning
order shall warn the defendant to appear and defend the action
within sixty days after the making of the warning order, and the
defendant shall be considered as constructively summoned in thirty
days after the making of such warning order.
§ 1005. Pleadiags, snbseqneot to answer — filing. Every pleading subse-
quent to the answer shall be filed in fourteen days after the pleading is
filed to which it responds, but the court may extend the time for
pleading.
§ 1006. Interrogatories — when to be answered. Interrogatories annexed
to a pleading shall be answered when the responsive pleading is
required to be filed.
§ 1007. Filinji: pleadinji; with clerk — effect of. The filing of a pleading in
the clerk's office within the proper time, and causing it to be noted
upon the clerk's memorandum book and rule docket, shall be equiva-
lent to a filing in court.
§ 1008. Depositions to be taken on interrogatories. All depositions in
equitable actions shall be taken upon interrogatories, unless
the court shall otherwise provide by rule, or by an order in the
cause.
§ 1009. Depositions — how certified — rules — notice. Depositions shall be
taken and certified in the manner and by the officers directed in this
Code, subject to the following modifications : Depositions in cases in
the county where such court sits may be taken before the commis-
sioner of the court, and no commission shall be required therefor.
Notice to the adverse party shall not be necessary; but the court
shall, by rule, prescribe days for the filing of interrogatories, and the
time they shall remain in the clerk's office. If a deposition be taken
upon interrogatories, neither party nor his agent or attorney shall be
present at the examination of the witness, unless he have notified the
adverse party of his intention to be present; and in such case, the
party in whose behalf the deposition is to be taken shall notify the
adverse party of the time and place of the taking. When it appears
by the certificate of the officer that one only of the parties was present
at the examination of the witness, the reason for permitting him to
be present shall be stated ; and when a notice to attend has been
given, the evidence thereof shall be annexed to the certificate.
Depositions to be read in the court may be taken by the commissioner.
The court may prescribe, by rule, that depositions taken on oral
examination shall be taken in narrative form, subject to such regula-
tions as may be prescribed in the rule.
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5t)2 COURTS HAVING CONTINUOUS SESSION. [APPENDIX
§ 1010. Sales of property — terms of. Sales of property shall be for cash,
or on reasonable credit, or for part cash and part on reasonable credit,
as the court may direct; but a sale of personal property shall not be
on a longer credit than four months.
§ 1011. Advertlsemeot of sales. The court may direct sales made under
its orders to be advertised in one or more newspapers published in or
out of this State ; but no such advertisement shall be ordered if all
the parties interested be actually before the court and capable of
giving consent, and none of them asks therefor.
§ 1012. Sale boads — interest — ^to whom payable and collectloo of. The bonds
of the purchasers of property sold by order of the court shall bear
interest from the day of sale at the same rate the judgment bears,
and shall be made payable to the clerk of such court, and shall be
signed or acknowledged before and attested by the officer who made
the sale. Proceedings on such bond may be had in the name of the
clerk of such court, without using the name of the clerk for the time
being, at the instance, as the relator of any person interested, he
being responsible for the costs. But in courts in counties having a
population of less than one hundred and fifty thousand, and consti-
tuting separate judicial districts, such bonds shall be made payable
to the commissioner making the sale ; and in such cases, the proceed-
ings above authorized in the name -of the clerk may be had in the
name of such commissioner. Performance of such bond may be sum-
marily enforced by orders of court, and by proceedings as for con-
tempt, if they be not obeyed. The bonds shall have the force of
judgments, and upon executions thereon no replevin shall be allowed,
and sales shall be for cash.
§ 1013. Bail in civil cases — objection for insufficiency — liability of receiver.
An objection to bail in civil cases for insufficiency shall only be made
by motion within ten days after the return of the bail bond. A lia-
bility incurred by any person or corporation as receiver or depository
of money or property committed to his or its charge by order of the
court shall rank with debts due to the Commonwealth, and shall
have priority over other debts owing by such receiver or depository,
and precedence over any mortgage or lien ui)on the property of such
receiver or depository made after his or its appointment.
§ 1014. Appeal jp'anted within sixty days. An appeal from a judgment
may be granted by the court within sixty days from its rendition.
§ 1010. Sales of property — terms of sale, was error to require a cash paymeDt of
See Willett v. Johnson, construing sec. two thousand doHars where amount to
827 of Code (omitted from this revision), be raised was about twenty thousand
same as this section, and holding that it dollars.
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§ 1015. Wheo ordioary actioDS placed oo trial docket. In civil actions or
special proceedings other than equitable, after an issue of law or fact
is formed, or after the time for pleading has clasped without a plead-
ing being filed,. either party may place the action or proceeding on
the common law trial docket of the court or the branch thereof in
which same is pending, which shall be kept and called as the court
shall, by rule, direct.
§ 1016. Bills of exceptions — when prepared and sijpied. Bills of exceptions
must be prepared and presented to the judge within sixty days after
the making of the order excepted to ; but exceptions taken during
the trial need not be noted of record nor reduced to writing, unless
by order of the court, until after the trial ; within sixty days after
the judgment becomes final, the party excepting shall, unless further
time be given him, prepare his bill of exceptions, but further time
may be given to prepare a bill, but not beyond one hundred and
twenty days after the judgment becomes final.
§ 1017. Practice to conform to that of courts having terms. Except as here-
inbefore provided, practice in circuit courts having continuous session
shall conform as nearly "as practicable to practice in circuit courts
having terms.
CHAPTER III.
COURTS HAVING FOUR JUDGES.
[KENTUCKY STATUTES, PAGE 460.]
§ 1020. Election of indji:e8 — tie vote. That in every district entitled to
four circuit judges, each office of circuit judge shall be voted for sep-
arately. The ballots shall specify as follows: "Forjudge of the cir-
cuit court, criminal division; forjudge of the circuit court, chancery
division; for judge of the circuit court, common pleas division; for
judge of the circuit court, law and equity division." The person
receiving the largest number of legal votes marked criminal division
shall be elected ; and, in like manner, the persons receiving, respect-
ively, the largest number of legal votes marked chancery division,
common pleas division, and law and equity division, shall be elected.
In case of a tie in any of said elections, the result shall be decided as
in case of a tie vote between two or more candidates for a single
office.
§ 1021. Vacancies in office — ^fillinji:. This act shall also apply to the fill-
ing of vacancies in the office of circuit judge in such district.
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564 COURTS HAVING FOUR JUDGES. [APPENDIX
§ 1022. Commissioa of indjj^es. Each of said judges shall be commis-
sioned as a circuit judge for the district for which he is elected, and
shall have all the powers of a circuit judge.
§ 1023. Crimiaal, chaocery, commoo pleas aod law and equity branches. Everjr
circuit court in the Commonwealth having four judges shall have
four branches, to be named, respectively, criminal, chancery, common
pleas and law and equity branch.
§ 1024. Contlnoous sessloa In each court Every such court shall have
continuous session.
§ 1025. Jurisdictioo how divided — a8slji:nnieat of causes — duty of clerk. Of
cases within the jurisdiction of such court, all criminal prosecutions
and proceedings on bail bonds and recognizance in criminal cases
shall be brought and prosecuted in the criminal branch; litigation
prosecuted in the other branches shall be divided between them, ac-
cording to rules of court, to be made in general term. Until such
rules are made, whenever eighteen equitable actions or special pro-
ceedings of such litigation are unassigned, the clerk shall, in the
presence of one of the four judges, write the style or number of each
of said causes upon a separate card or slip, and place the said eighteen
cards or slips in a box or receptacle therefor prepared, and draw
them indiscriminately therefrom, one at a time, and assign them to
said branches, giving the chancery branch the first twelve drawn, to
the common pleas branch the next three drawn, and to the law and
equity branch the remaining three ; and whenever eighteen actions or
special proceedings, not equitable, are unassigned, said clerk shall, in
like manner, draw, in the presence of one of the four judges, and as-
sign them to the last two named branches, giving to the common
pleas branch the first nine drawn, and to the law and equity branch
the last nine. Until said causes or proceedings are so assigned any
orders required therein may be made therein by any one of said four
judges. None but equitable actions and special proceedings shall be
assigned to the chancery branch. No rule of court shall assign
more law or equity causes to one or the other of the two branches^
common pleas and law and equity.
§ 1026. Assijniment of ]udii:es — vacancies. Each judge of said court shall
be assigned to preside over one branch of said court during his entire
terra of office, except as hereinafter provided. Said assignment shall
be made as follows: The judge elected by ballots marked criminal
division shall, during his entire term, preside over the criminal
branch ; the judge elected by ballots marked chancery division shall,
during his entire term, preside over the chancery branch; the judge
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appendix] courts having four judges. 565
elected by ballots marked common pleas division shall, during his
entire term, preside over the common pleas branch; and the judge
elected by ballots marked law and equity division shall, during his
entire term, preside over the law and equity branch. When a
vacancy is filled, the judge appointed or elected to fill same shall pre-
side over the branch presided over by the judge whose place became
vacant; and if more than one vacancy is filled at any election, the
judges filling them shall preside over the branches respectively desig-
nated by the ballots electing them.
§ 1027. Traasfer from court or docket — except criminal cases — special judge.
Rules of general term shall provide for transfer of causes or issues
from one branch to another, or from one docket of a branch to
another docket of the same branch, where, by reason of the nature
of the cause or issue, or the disability of the judge, such transfer
may be proper. But no transfer shall be made of criminal causes,
xind in such causes, and in causes which have been once transferred,
if the presiding judge can not sit, a special judge shall be chosen by
the attorneys of the court in attendance, not interested nor of coun-
sel, to preside ; and such special judge shall have the same qualifica-
tions and powers as a circuit judge.
§ 1028. ProceediDg not invalidated l>ecause in wrong branch. !N'o proceed-
ings in such court shall be invalid because prosecuted in the wrong
branch thereof.
§ 1029. Judge failing to preside — ]ndge of another branch to preside — special
judge. When, for any cause, the judge presiding over any branch of
such court fails to attend, the judge presiding over any other branch
may attend and hold said court for the occasion ; if no judge presiding
over any branch of such court attends, the attorneys of said court in
attendance thereon shall elect one of their number, having the quali-
fications of a circuit judge, to hold court for the occasion. Such
special judge shall have the powers of a circuit judge.
§ 1030. Judge of one branch may preside over another branch. Any judge
presiding over one branch of said court may, upon the request of a
judge presiding over another branch of said court, hear and determine
I 1029. Electioo of special lodge. Un- so, it became the duty of the clerk to
<3er the various acts relating to the trans- make the transfer and to enter it upon
fer of suits between the courts of Jeffer- the order-book. Royal Ins. Co. v.Rufer,
son county, it was only when the judge 89 Ky. 518.
failed to attend that the bar could elect § lOaO. Jurisdiction. While a civil ac-
a special judge. If the regular judge tion can not be instituted in or trans-
attended and could not properly preside f erred to the criminal branch of the Jef-
in any particular case, it was his duty to ferson Circuit Court the judge thereof
transfer the case; or, if he failed to do may be empowered by statute, as has
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566 COURTS HAVING FOUR JUDGES. [APPENDIX
any case or question in such other branch pending ; the request shall
be entered on the order-book of the branch in which such case or
question is pending.
§ 1031. QraDd Jury summoDed for criminal branch. There shall be sum-
moned by the sherift' of the county twelve grand jurymen, to attend
on the first Monday of the next month, excepting the month of Sep-
tember, when they shall attend on the third Monday thereafter
(excepting July and August) the criminal branch of such court. If '
such court shall deem it necessary, a grand jury composed of bystand-
ers may be impaneled in any month after the discharge of the grand
jury first impaneled. .
§ 1032. Bail bond — appearance of accused. Bail bonds shall provide for
the appearance of the accused om a day certain; and summons in
criminal cases shall require the appearance on the first Monday of
some month named therein.
§ 1033. Acts required and motions — what regarded as a term. In all crimi-
nal or penal cases in which an act is required to be done, or motion
made, or case set for trial, at a given term, by the law applicable to
courts having terms, such act shall be done or motion made or case
set for trial on a day of a corresponding month, as if each month,
beginning with the first Monday of a calendar month and ending with
the Saturday before the first Monday of the next calendar month,
were a term.
§ 1034. Rules to be made in general term. The said court shall, in general
term, make rules of said court and shall have power, from time to
time, to change such rules. Such rules shall be binding on each
branch of said court until changed in general term.
§ 1035. Control over iudgments for sixty days. Such courts shall have such
control over its judgments for sixty days as circuit courts having terms
have over their judgments during the term in which they are rendered.
§ 1036. Actions for sale of real property — taxes — summary proceedings. Such
court may, in actions for sale of real property, determine summarily,
been done, to hear and determine accord- § 103d. Taxes— payment out of proceeds
ing to prescribed rules a case pending in of sale. In Gay v. City of Lou., 93 Ky.
any other branch when the ends of 349, it was held that under sec. 773 of
Justice require it. Mengel v. Jackson, Civil Code (omitted from this revision),
94 Ky. 472. same as this section, that the chancellor
§ 1035. Power over judgment for sixty had no power to make provision for the
days. See, construing sec. 773 of Civil payment of taxes due by a decedent, un-
Code (omitted from this revision^ same less the tax bill was verified as other
as this section, L. «& R. & L. Co. v. claims against decedent's estates are re-
Kerr, 78 Ky. 12 : Johnson v. Johnson, 88 quired to be.
Ky. 275 ; Johnson v. Slivers, 95 Ky. 128.
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appendix] courts having four judges. 567
with or without written pleadings, the amount of any State or munic-
ipal tax or assessment upon the property to be sold, and shall provide
for the payment of the same in the judgment ; and if the plaintiff fail
to ask therefor, the purchaser shall be entitled at any time before
payment of the purchase price to a credit for the amount thereof.
§ 1037. Commissioaer to be appoiDted by the four judges. The four judges,
any three concurring, shall appoint a commissioner, who shall hold
his office during four years, unless removed, as he may be, at the
pleasure of the court. He shall discharge the duties and have the
powers appertaining to the office of a master in chancery, and as pro-
vided by kw and the rules of the court.
§ 1038. Commissioaer to take oath aad give boad. Be£ore entering upon the
discharge of his duties, the commissioner shall appear in open court,
execute bond according to law, and take an oath that he will honest-
ly, impartially and to the best of his judgment discharge all the
duties of his office, without favor of respect or persons, and render
true and just reports of all his actings and doings as such.
§ 1039. Actioa oa official boad of officers of the court An action on the
official bond of the clerk, marshal, receiver or depository of the court
may be brought in said court as other actions of which it has juris-
diction.
§ 1040. Actioo 00 boad by persoa ioterested. Any person interested may
8ue on any of the bonds mentioned in the preceding sections of this
act for a breach thereof; and any branch of the court may, by rule
and attachment against the obligors therein, enforce their per-
formance.
§ 1041. Times for holdiog geoeral term. A general term of said court
shall be held on the first Monday in January and July in every year,
and also at such other times as the court shall, by rule, appoint ; and
all appointments of commissioner and receiver shall be made in gen-
eral term by order entered on the order-book of the said court.
§ 1042. Order-book of geaeral term. Besides the order-books and the judg-
ment-books of the several branches of said court, the clerk of said
court shall keep an order-book of the general term, wherein shall be
entered all rules made and other business transacted at general terms.
§ 1043. Traasfer of peodiog litigation — how distributed. The litigation
pending in any such district in courts of like jurisdiction with circuit
courts shall be transferred to the circuit court of such district and
distributed among the branches thereof, as follows : All criminal
prosecutions and proceedings on forfeited bail bonds and recogni-
zances in criminal cases fhall be transferred to the criminal branch
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568 COURTS HAVING FOUR JUDGES. [APPENDIX
of said court. All actions and special proceedings pending in a
court having general equity and not common law jurisdiction shall
be transferred to the chancery branch. All actions and special pro-
ceedings pending in a court having general law and not equity juris-
diction to the common pleas branch, and all actions and special pro-
ceedings pending in a court having both law and equity jurisdiction
to the law and equity branch.
§ 1044. TraDsfer of cases iavolvioji: a commoo fond. Transfers may be
made between said branches in all cases in which a common fund is
involved in litigation either by way of attachment or otherwise, so
that the distribution of the fund may be under the control of one
branch of the court.
§ 1045. Official iaterpreter for crimiiial divisioa — appoiotmeat of. The judge
of the circuit court presiding in the criminal division of the circuit
court of each judicial district of this Commonwealth, composed of a
county containing a population of seventy-five thousand or over,
may, in his discretion, appoint an official interpreter, who shall be ap-
pointed for a term of four years, and until his successor is appointed
and qualified.
§ 1046. Qualifications of iaterpreter. No person shall be eligible to the
position of official interpreter who is not able to speak fluently the
English and German languages, and to interpret the one of these
languages into the other.
§ 1047. Interpreter to be present at all sessions of court It shall be the
duty of said interpreter to be present at all sessions of the criminal
division of said circuit court, and to interpret the evidence or state-
ments of parties or witnesses in said court when directed so to do by
the judge thereof,
§ 1048. Oath administered to interpreter. Before entering upon his duties
as such interpreter he shall be required to take the oath required of
all officers of this Commonwealth, and shall further swear that he
will, to the best of his ability, true interpretation make in all matters
and controversies in said court wherein he is directed to interpret.
§ 1049. Salary of interpreter to be fixed by iudji:e. The said interpreter
shall receive an annual salary, to be fixed by the presiding judge of
said criminal division of such circuit court, not to exceed the sum of
six hundred dollars, to be paid in monthly installments out of the
county treasury.
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appendix] special judges of circuit court. 569
CHAPTER IV.
SPECIAL JUDGES OF CIRCUIT COURT.
[§ 968, Ky. Stat.] Disqnalificatioii of ]odge— special judge. When from
any cause the judge of the circuit court fails to attend or being in
attendance can not properly preside in an action, proceeding or prose-
cution pending in said court, or if either party shall file with the
Kjlerk of the court his affidavit that the judge will not aftord him a
fair and impartial trial, or will not impartially decide an application
for a change of venue, the parties by agreement may select one of the
attorneys of the court to preside on the trial or hear the application,
or hold the court for the occasion, and on their failure to agree upon
an attorney, the attorneys of the court who are present and noj
interested nor employed in the cause shall elect an attorney of the
court then in attendance having the qualifications of a circuit judge
to hold the court for the occasion, who shall preside accordingly; and
the judge so selected shall preside in all cases called during the term
in the absence of the regular judge, or in which he can not pre-
side, except in those cases in which the special judge can not properly
preside. The election shall be held by the clerk, and in case of a tie
he shall give the casting vote. The person elected shall, during the
period that he acts, have all the powers and be subject to all the
responsibilities of a circuit judge.
§968. (1) Affidavit— sufflcieacy of. To consented to trial by special judge,
entitle a litigant to have the regular Rudd v. Woolfolk, 4 Bush 555.
judge retire he must state in his affidavit (3) Qovenior— appoliitmeat of special lodge
the facts upon which he founds his be- by. See Kennedy v. Com., 78 Ky. 447.
lief that the judge will not give him a (4) Judge should retire when proper affi-
fair trial, and the facts thus stated must davit Is filed; if he does not the judg-
be such as should prevent the judge ment of conviction in a criminal case
from presiding. The trial judge de- will be reversed, although the record may
termines the sufficiency of the affidavit, not disclose any error committed by the
And his decision is subject to revision on court to the prejudice of the defendant,
appeal. German Ins. Co. v. Landram, Massie v. Com., 93 Ky. 588.
SS Ky. 433. When the facts are stated (5) Ob|ectlon— when to he made. The
in the affidavit they can not be put in objection to trial judge to be available
issue or called in question by the judge. must be made before an appearance to
Vance v. Field, 89 Ky. 178. the merits of the action or the submis-
(2) Consent of parties not necessary. A sion of preliminary motions by either
cause may be legally tried by a special party preparatory to a trial. German
judge elected by the members of the bar, Ins. Co. v. Landram, 88 Ky. 433 ; K. C
one of the parties not consenting thereto. R. R. v. Kenney, 82 Ky. 154 ; but a party
Smith v. Blakeman, 8 Bush 476 ; and see may, after issues are made up, file an
further, as to presumption that parties affidavit to require the judge to vacate
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570 SPECIAL JUDGES OF CIRCUIT COURT. [APPENDIX
[§ 969, Ky. Stat.] Special ]adge— pay of. lie shall be paid for hi&
services eight dollars per day ; but a special judge shall not be paid
for any services as such unless he is engaged at least one day, nor
unless the period of his service shall be certified by an order
made by the regular judge, from his own knowledge or proof heard
in open court.
[§ 970, Ky. Stat.] Special Indge — ^failure to act — secoad election — agree-
ment. If the person first elected to act as special judge fails or refuses
to act or can not properly preside, another election shall be held in
like manner from time to time until a suitable person is chosen wha
can and will preside. The parties to an action may agree upon a
person to preside and he shall have the same power and be paid in
the same manner as if elected by the attorneys of the court.
[§ 971, Ky. Stat.] Special ]itdge — appointment by i:ovenior — pay and
dnileage. In the absence of the regular judge or when he can not pre-
side, if the parties can not agree upon an attorney to act as judge
who is present, or the bar fail or refuse to elect, the clerk shall
at once notify the governor, who shall appoint as circuit judge
an attorney having the qualifications of a circuit judge, to hold the
court or try the case, and the judge so appointed shall have all the
powers of the regular judge and receive the same compensation as a
special judge and ten cents per mile in going to and returning from
the court ; and he may, if necessary, hold a special term to try
any case after such notice or order as required when a special term
is held.
[§ 972, Ky. Stat.] Oath prescribed. Every judge of a court and
every special, before entering on the discharge of his duties, must, in
addition to the oath prescribed by the Constitution, take an oath as
the bench, provided it is based upon a special judge who tried case extenflp<l
facts discovered since issue was made. time to file bill of exceptions to next
Vance v. Field, 80 Ky. 178; see Russell term, the party may at that term tender
V. Russell, 11 R. 547. his bill in court and let it lie over until
(6) Objection to special judse must be next term for special judge to sign if he
made in the circuit court, otherwise it is absent at term when bill is tendered,
will not be available in the Court of McFarland v. Burton, 89 Ky. 294.
Appeals. Vandever v. Yandever, 3 (0) Special jodfe actiflf withoot belof
Met. 137. sworn. If the special judge whom the
(7) Presumptioo io favor of qualificatiofls. parties selected acted without being
Where a pro tempore judge has been sworn the objection was waived by the
elected as provided by law the presump- acquiescence of the parties at the time,
tion will be indulged that he possessed Salter v. Salter, 6 Bush 634.
all the qualifications required to enable (10) Special judge elected at one term
him to hold the oflftce. Cotton v. Wolfe, of the court has no authority to try
14 Bush 238. cases at the succeeding term. Childers
(8) Sicnias W" o' cxccptloas. Where v. Little, 16 R. 521.
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appendix] change of venue in circuit courts. 571
follows : " I, A B, do solemnly swear (or affirm) that I will administer
justice without respect to persons, and do equal right to the poor and
to the rich, and that I will faithfully and impartially discharge all
the duties incumbent upon me as judge according to the best of my
abilities." {Constituted oath. Constitution^ sec. S28)
[§ 973, Ky. Stat.] Commissioo — selectloo of special judge — record of. The
commission of judges, the selection of special judges, the reason
of such selection and the fact that the requisite oaths have been taken
must be entered on the order book of the court.
Special judges of Court of Appeals. See Constitution, sec. 117; Ky.
Stat., sec. 952.
CHAPTER V.
CHANGE OF .VENUE.
[kentucky statutes, page 475.]
Article 1. In circuit courts, page 571.
2. In inferior courts, page 573.
3. • In criminal cases, page 575.
ARTICLE 1.
in circuit courts.
§ 1094. Conseot — undoe influence — odiom. The parties to any suit may,
by consent, have an order in or out of court for its removal to any
other court; or a party to any civil proceeding, triable by a jury in a
circuit court, may have a change of venue when it appears that,
owing to the undue influence of his adversary in the county, or to the
odium which attends himself, or his cause of action or defense, he can
not have a fair trial.
§ 1094. (1) Affidavit— sufficieacy of. In have been removed if no agreement
an application for change of venue, where had been made. Salter v. Salter, 6
the affidavit of the litigant and his wit- Bush 624.
nesses show a belief on his part that a (3) All plaintiffs or all defendants most
fair trial can not be obtained, it is suffl- ioia in the motion for change of venue in
cient. Newcomb-Buchanan Co. v. Bas- a civil case. "Whitaker v. Reynolds, 14
kett, 1 Bush 658. Bush 616.
(2) Afreemeat of parties to transfer con- (4) Objection to chanfe of venae is waived
solidated causes to the circuit court by a subsequent appearance in, and fail-
of a county in another judicial district ure to object to, the jurisdiction of the
was sufficient to authorize the change court to which the transfer was made,
of venue to that court, although not the Vinsen v. Lockard, 7 Bush 458 ; Deer-
forum to which the causes should ing v. Halbert, 2 Litt. 290.
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572 CHANGE OF VENUE IN CIRCUIT COURTS. [APPENDIX
§ 1095. Notice of applicatioo for change. Before an order for a change
of venue shall be made, ten days' notice shall be given to the party,
if he is in this State; if not, then to his agent or attorney, if he have
one ; if none, then by leaving the notice with the clerk of the court
in which the action is pending, who shall immediately indorse it filed,
and put it with the papers in the action.
§ 1096. Application by petition — verified by affidavits — counter-affidavits. Ap-
plication for an order for a change of venue must be made by peti-
tion, verified by the afiidavit of the party, supported by the affidavits
of at least two credible housekeepers of the county in which the ac-
tion is pending. The adverse party may file affidavits controverting
the grounds relied upon for the change of venue, and the court may
hear other evidence for or against the application, and shall exercise
a sound discretion in deciding the question.
§ 1097. Circuit court of adjacent county — terms and conditions. A change of
venue shall be made to the circuit court of an adjacent county most
convenient to the parties to the action, their witnesses and attorneys,
to which there is no valid objection ; and the order may be made sub-
ject to such equitable terms and conditions as safety to the rights of
the parties may require, and the court or judge, in his discretion,
may prescribe.
§ 1098. Order void unless expense of removal paid in ten days. The order
shall be void, unless the party obtaining it, within ten days, pays to
the clerk ten cents a mile going and returning for the expense of
travel in making the removal.
§ 1099. Cleil's duty upon receipt of order. Immediately upon the mak-
ing, or receipt, of the order, the clerk shall make out a transcript of
the orders pertaining to the cause, which, with the original papers
therein, he shall, as soon as practicable, carry or send by some dis-
creet person to the clerk of the court to which the cause is removed,
the former clerk being responsible for the conduct of the person
employed.
§ 1096. Irregaiarity ia orderinf chanse— § 1097. Ad]oinins conoty. The evident
correction. A change of venue to a meaning of the statute is to confine the
county in another judicial district, on parties to a trial in the county in which
the affidavit alone of the party applying the action is brought, or to an adjoining
fo;- the change, although irregular, is county, unless some available objection
not void ; and if, on motion of the ad- is made or consent given. It is error to
verse party to remand, the party obtain- change the venue to a county not adjoin-
ing the change supplies the necessary af- ing simply because counsel can not agree
fidavits, the court may refuse to remand on one adjoining. Miller v. Cabell,
Ihe case. Triplett v. Scott, 5 Bush 81. 81 Ky. 178.
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appendix] change op venue in inferior courts. 673
§ IIM. When removed case stands for trial. If the papers are transferred
ten days before the first day of the next term of the court to which
the cause is removed, it shall stand for trial at that term, otherwise
not until the term next succeeding.
§ 1101. Power of court to which cause removed. The court to which the
cause is removed shall have the same power as to its trial and final
disposition as that from which it came.
§ 1102. One removal or application only from same party. There shall not
be more than one order of removal of the same cause at the instance
of the same party, nor shall the court entertain more than one appli-
cation for a removal of a cause by the same party.
§ 1103. Application, cause for continuance at first term. At the appearance
term of a civil suit, if a party desires a change of venue, he shall
state the facts and reasons therefor in an affidavit, which shall be
good cause for a continuance, if deemed sufficient by the court, pro-
vided the application for a change of venue be made during the term.
§ 1 104. Transfer by judge of cases triable by the court. If in a chancery case,^
or an action or motion to be tried by the court, the regular judge can
not preside and a special judge is not agreed upon or elected, the
regular judge may transfer the case or action or motion to the most
convenient county in an adjoining circuit, where it shall be disposed
of as if originally brought in that court.
ARTICLE 2.
IN INFERIOR COURTS.
§ 1105. County or quarterly court to circuit court. Change of venue of
any and all causes and motions pending in any county or quarterly
§ 1100. Case stasds for trial— when. If fidavit of the party alone, the court to
the case would stand for trial at the sue- which the change is made has the right,
ceeding court of the county from which upon the requisite affidavits being sup-
it is removed, and the papers are filed in plied, to refuse to remand the case,
the clerk's office of the court to which it Triplett v. Scott, 5 Bush 81.
is removed ten days before the ensuing (3) No appeal lies from a judgment of
court, it will stand for trial at that term, a circuit court remanding a case, such
Dale v. Hays, 14 B. M. 316. Judgment not being final. Turner v.
§ IIOI. (1) Obiectioii to change waived by Browder, 18 B. M. 825.
a subsequent appearance in, and failure § 1105. Proceedios for probate of will.
to object to, the jurisdiction of the court There can be no change of venue in cases
to which the action was transferred. for the probate of the wills in the county
Vinsenv. Lockard, 7 Bush 458. court. If the county judge can not act,
(2) Remandlof case. Though the change Ihe nearest justice must preside. Bryam
was irregular in being made upon the af- v. Holliday, 84 Ky. 18.
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674 CHANGE OF VENUE IN INFERIOR COURTS. [APPENDIX
court shall be granted in the same manner, under the same limita-
tions and restrictions, and for the same causes, as are prescribed in
this article authorizing changes of venue in civil cases in the circuit
court. The change of venue shall be made to the circuit court of
the county in which the cause or motion may be pending, unless
there be a legal ground of objection to the judge of the circuit court,
or to the trial of the cause or motion in that county, in which case
the change of venue shall be awarded to the circuit court of the
nearest county to which the objection does not apply ; and the mode
of trial and rules of procedure shall be the same prescribed for the
trial of such cause or motion in the court from whence the same may
be removed, so far as the same are applicable.
§ 1106. Original papers transmitted — when remanded — duties of clerks. When
any change of venue shall be so ordered, the judge or clerk of the
county or quarterly court, as the case may be, shall send the original
papers, together with » transcript of all orders which have been
made in the cause or motion, to the clerk of the court to which the
change of venue is awarded, and upon disposing of the matter the
court, according to the nature of the case, shall direct whether the
original papers shall remain, or whether they shall be remanded to
the court from whence they came. When they are remanded, the
clerk of the circuit court shall retain a special statement of the tax-
ation of costs, and return the original papers, with copies of all
orders made in the premises by the circuit court, to the court from
whence they came ; and when any paper is so returned, which,
according to the order or judgment of the circuit court ought to be
recorded in the county court oflSce, it shall be so recorded by the
county court clerk, together with so much of the order of the cir-
cuit court as shall be necessary to place the same properly on record.
§ 1107. Justices*, police courts — when may be demanded. A party to a
suit pending before a justice or police or city judge shall have a
change of venue to another justice of the same county when he shall
make oath that he believes he can not have a fair trial in the court
in which the cause is pending, and the cause may be tried out of
term time by the justice to whose court it is removed.
§ 1108. Justice not attending or disqualified another may act. If the justice
before whom a cause is returned for trial does not attend, or can not
try the same, any other justice of the same county may attend and
try and decide the cause.
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APPENDIXI
CHANGE OF VENUE IN CRIMINAL CASES.
575
ARTICLE 3.
IN CRIMINAL CASES.
§ 1109. Applicatioii of defendant or Commoflweilth — ^adjacent county. When
a criminal or penal prosecution is pending in any circuit court, the
judge thereof shall, upon the application of the defendant or the
Commonwealth, order the trial to be had in some other adjacent
county to which there is no valid objection, if it appears that the
defendant or the Commonwealth can not have a fair trial in the
county where the prosecution is pending; and if the judge is satisfied
that a fair trial can not be had in an adjacent county, he may order
the trial to be had in the most convenient county in which a fair
trial can be had.
§1109. (1) Adjoinins coanty -~ objection.
Where, upon motion of the defendant
and by consent of the attorney for the
State, a change of venue is had to a
county not adjoining the one in which
the offense was committed, it is too late,
after trial and convictioir, for the defend-
ant to object lo the jurisdiction of the
court. Lightfoot v. Com., 80 Ky. 516;
Hourigan v. Com., 04 Ky. 520.
(2) Upon an application for change of
venue, when all the adjoining counties
in the district have been objected to, it
is proper to send the case to an adjoin-
ing county in another district. An error
in deciding as to what county the case is
to be sent does not invalidate the pro-
ceedings. Kennedy v. Com., 78 Ky. 447.
(3) Where objection is made to the
county where the court proposes to send
tlie case, the objection must be a valid
one, and the court may hear proof on
this point, both upon the part of the ac-
cused and the Commonwealth. Mickey
v. Com., 13 Bush 237.
(4) Borden opon applicaat to make oot
case. To entitle the defendant to a change
of venue, the onus is on him to at least
make out a prima facie case. The mere
filing of a petition without affidavits or
oral testimony to support it is not suffi-
cient. Wilkerson v. Com., 88 Ky. 29;
Hasson v. Com., 10 R. 1054. Weight to
be given to the judgment refusing the
change. Dilger v. Com., /d, 550. When
the evidence shows that there are rea-
sonable grounds to believe that the de-
fendant can not have a fair trial in the
county where the offense is committed,
it is the duty of the court to grant the
change. Johnson v. Com., 82 Ky. 110.
(5) Discretion of court The trial court
has a sound discretion in determining
whether or not a motion for a change of
venue should be sustained, and its con-
clusions will not be disturbed unless pal-
pably abused. Howard v. Com., 15 R.
873 ; Wren v. Com., 8 R. 418 ; Hasson v.
Com., 10 R. 1054.
(6) Jurisdictional facts. The statements
contained in the affidavit showing the
necessity for a change of venue are not
jurisdictional facts. Lightfoot v. Com.,
80 Ky. 516 ; Smith v. Com.. 95 Ky. 322.
(7) New indictment Where a case is
transferred by Commonwealth, the court
of county from which transfer is made
loses all jurisdiction over case, and an
indictment found in that county against
defendant for same offense is a nullity,
although indictment transferred has
been filed away. Smith v. Com., 95 Ky.
322.
(8) RIcht of Commonwealth. The Legis-
lature may, by a general law, provide
for a change of venue in criminal cases
upon motion of the Commonwealth as
well as upon motion of the defendant.
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576 CHANGE OF VENUE IN CRIMINAL CASES. [APPENDIX
§ 1 1 !•. ApplicatkMi by defefldot— affffdavito— Mtke— oearest comty— evideace.
Such application, if made by defendant, must be made by petition in
writing, verified by the defendant ; and the applicant must produce
and file the affidavits of at least two other credible persons, not of
kin to nor of counsel for the defendant, stating that they are
acquainted with the state of public opinion in the county or counties
objected to, and that they verily believe the statements of the peti-
tion for such change of venue are true ; and the attorney for the
Commonwealth, or in his absence from the county the county attor-
ney, must have reasonable notice, in writing, of such application.
If objections are taken and sustained to all the adjoining counties,
then the change shall be made to the nearest county to which there
is no valid objection, giving preference to counties of the same judi-
cial district. The application must be made and determined upon in
open court, during a regular or called term, and the court shall, on
said motion, hear all the witnesses that may be produced by either
party, and from the evidence determine whether or not the applicant
is entitled to a change of venue.
§ 1111. Application by CQmmonwealth — petition — notice. If the application
is made by the Commonwealth, a petition stating the reasons there-
for and signed by the Commonwealth's attorney shall be filed in
court, and reasonable notice in writing of the time when the applica-
tion will be made must be given to the defendant, or, if he be absent
from the county, to his attorney ; and the application shall be heard
and determined as provided in the next preceding section.
§ 1112. Removal from coanty in state of lawlessness — expense paid by coonty.
"Whenever any judge shall be satisfied from his own knowledge, and
from the written statement of the Commonwealth's attorney, that
such a state of lawlessness exists in any county that the officers will
be prevented from discharging their duty, or the jurors be deterred
from rendering an impartial verdict, he may order the prosecution
removed to some other county in which a fair trial can be had; and
Com. V. Davidson, 91 Ky. 162; Con., he can not complain of the jurisdiction
sec. 11 ; 95 Ky. 322. of the court. Hourigan v. Com., 94 Ky-
(9) Rifht of defendaat to chaBge of veoue. 520.
When required, petition and affidavits (11) Where a defendant has obtained a
are filed by defendant ; if no witnesses are change of venue without observing the
introduced by either party he is entitled formalities required by the statute, he
to a change of venue and the court has can not, after trial, question jurisdiction
nodiscretion. Higgins v. Com., 94 Ky. 54. of court. 94 Ky. 520.
(10) Waiver of obiectioa to ]arisdiction. § lilt. EvMence. On application for
Where a case in which there has been a change of venue, the court shall hear all
change of venue is transferred back to witnesses that may be produced by either
original county on motion of defendant, party, and from the evidence determine
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appendix] change of venue in criminal cases. 577
the fiscal court of the county from which such removal is made shall
allow and pay the costs thereof out of the county levy.
§ 1113. Proceedings when defendant is in custody or on bail. If the appli-
cant or defendant is in custody the order for the change of venue
shall be accompanied by an order for his removal by the sheriff* or
jailer of the county, with such sufficient guard as the judge may
direct, and his delivery to the jailer of the county where the trial is
to be had. If the applicant or defendant is under recognizance or
bond for his appearance, he shall, before the order is granted, give
sufficient bail for his appearance at the proper court, or be surren-
dered into the custody of the proper officer.
§ 1114. Recognizances of witnesses— preparation for trial. The court shall
also take recognizances of the witnesses for their appearance at the
proper court, and make such order as may be deemed necessary to a
fair, full and speedy trial upon the merits of the case.
§ 1115. Duty of clerk — original papers — copies — mileage. When the prose-
cution is so removed, the clerk of the court shall immediately trans-
mit the original papers, together with a transcript of the orders per-
taining thereto, to the clerk of the court to which the removal is
ordered, after making out and retaining a copy of such original
papers. The transfer shall be made by the clerk, his deputy or some
discreet person for whom the clerk shall be responsible. The appli-
cant, if the defendant, shall, before such order of removal is made,
pay the clerk for making such copy, and also ten cents a mile for
necessary travel in going and returning in making such transfer.
§ 1116. Change allowed to one of several defendants — original papers retained.
If one, or some, only of several defendants charged in the same in-
dictment apply for or be allowed the change of venue, the original
indictment shall be retained, and a certified copy sent, which shall
serve in lieu of the original.
§ 1117. Proceedings in court to which removal made. The court to which
the removal is so made shall have the same jurisdiction to dispose of
the case as the court has from which it was removed; and if the
indictment be quashed or nolle prosequi entered, a new indictment
may be found, from time to time, by a grand jury of the county to
whether or not the applicant is entitled where the offense was committed is not,
to a change of venue. Hicks v. Com., 3 like the right to be tried by a petit jury,
R. 87; Johnson v. Com., 82 Ky. 116; an absolute and indefeasible right which
Wren v. Com., 8 R. 418. can not be surrendered. By obtaining a
§ I1I7. New iadictmeot Right of ac- change of venue accused waives his
cused to demand that he shall be in- right to object to a new Indictment,
dieted by the grand jury of the county found by the grand jury of the county to
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578 CHANGE OF VENUB IN CRIMINAL CASES. [APPENDIX
which the removal is made, and the same prosecuted until the cajse is
finally disposed of, as though the offense had been committed in that
county.
§ 1118. One application or change of veme oily allowed, ^ot more than
one change of venue or application therefor shall be allowed to any
person or the Commonwealth in the same case.
§ 1119. Removal at instance of Commonwealth — costs to be paid by connty. If
the change of venue is granted to or on the application of the Com-
monwealth, all the costs of the removal shall be paid by the county
from which the removal is had, in the same manner as other claims
against the county are paid.
§ 1120. Return to county bavins original jurisdiction — ^when ordered. That
whenever the judge of any circuit court in this Commonwealth, in
which an indictment charging the defendant or defendants with a
felony is or may be pending, by change of venue from the county
where the alleged crime was committed on the ground that there ex-
isted at the time the venue was changed a state of lawlessness
among the citizens of such county by which the officers were pre-
vented from discharging their duties, or. jurors deterred from render-
ing impartial verdicts through fear or otherwise, shall be satisfied
from personal knowledge, or from reliable information furnished in
court by affidavit or oral testimony, that a state of lawlessness suffi-
cient to prevent officers and jurors from discharging their duties no
longer existed in said county, it shall be the duty of the court to
transfer the cause to the circuit court of the county where the
indictment was found.
§ 1121. Motion for re-transfer — by whom to be made. Such transfer may
be made upon motion of the attorney-general or of the Common-
wealth's attorney, regular or pro tem,^ of the district which includes
the county where the indictment is pending, upon ten days' notice in
writing to the defendant or defendants in the indictment, unless
notice be waived in open court by the defendant or defendants.
§ 1122. Removal of defendant in custody — defendant under bond. If the
defendant or defendants be in custody at the time such transfer is
ordered, the court shall make an order for his or their removal by
which the case was removed, where the § IIIS. Rifbt to chuige of venne is a
first indictment has been quashed or creature of the statute, and the extent of
», nolle prosequi entered. Parker v. CJom., its exercise may be limited by statute.
12 Bush 101 ; Jennings v. Com., 13 R. 70 ; The Legislature has tihe power to provide
but indictment can not be found in court that only one change of venue shall be
from which case was transferred. Smith allowed to any person in the same case.
V. Com., 95 Ky. 822. Dilger v. Com., 8S Ky. 550.
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the sheriff or jailer of the county, with such sufficient guards as the
court may direct, and his or their delivery to the jailer of the county
to which the transfer is made. If the defendants are under bond or
recognizance at the time the transfer is ordered, they shall execute
new bail bonds, with sufficient surety, to be approved by the court,
for their appearance on the first day of the next term of the court to
which the transfer is made, and all other conditions as required by
law, providing for the execution of bail bonds, or in default of bail
they shall be taken into custody and conveyed to the county to
which the transfer is made, and delivered to the jailer as hereinbefore
provided.
§ 1123. Witnesses to be reco||:iiized. The court ordering the transfer
shall take the recognizances of all witnesses for their appearance at
the proper court, and make such other orders as may be deemed nec-
essary to secure a speedy and impartial trial of the case.
§ 1124. Clerk to transmit fwpers and transcripis of record. The clerk of the
court shall immediately transmit the original papers, together with a
transcript of the record pertaining thereto, to the clerk of the court
to which the transfer is made, after making out and retaining in his
office a copy of the original papers. The transfer of the papers shall
be made by the clerk or his deputy, or some discreet person to be
selected by the clerk for that purpose.
§ 1125. Costs of transfer — county to pay. The county court of the county
from which such transfer shall be made shall allow, as claims against
such county, the costs of such transfer, to be paid out of the county
levy thereof. The fees of officers shall be the same as now provided
by law in cases of change of venue on motion of defendant.
§ 1126. Prosecstlons pending before county or police indge^ or Justice. In any
criminal or penal prosecution pending before the county judge, or a
justice or police or city judge, either party may have a change of
venue to a justice's court for the same reasons that a change may be
granted in civil cases pending in justices' courts; and if a change is
granted, the trial shall be had, before the justice to whose court the
case is transferred, in the manner provided for the trial of civil cases.
§ 1124. RjKord — tmosmission of. Pro- have been filed ten days before its corn-
vision of sec. 1100, Ky. Stat., that case mencement does not apply to criminal
shall stand for trial at term when papers cases. Hourigan v. Com., 94 Ky. 520.
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580 REMOVAL OP ACTIONS TO FEDERAL COURTS. [APPENDIX
CHAPTER VI.
LAWS OF THE UNITED STATES UPON THE SUBJECT OP THE
REMOVAL OF ACTIONS AND PROSECUTIONS FROM
STATE TO FEDERAL COURTS.
[Extracts from Revised Statutes of the United States.]
§ 641. Causes against persons under ** civil rights** laws — proceedings. When
any civil suit or criminal prosecution is commenced in any State court,
for any cause whatsoever, against any person who is denied or can not
enforce in the judicial tribunals of the State, or in the part of the
State where such suit or prosecution is pending, any right secured to
him by any law providing for the equal civil rights of citizens of the
United States, or of all persons within the jurisdiction of the United
States, or against any officer, civil or military, or other person, for any
arrest or imprisonment or other trespasses or wrongs, made or com-
mitted by virtue of or under color of authority derived from any law
providing for equal rights as aforesaid, or for refusing to do any act
on the ground that it would be inconsistent with such law, such suit
or prosecution may, upon the petition of such defendant, filed in said
State court, at any time before the trial or final hearing of the cause,
stating the facts and verified by oath, be removed for trial into the
§ 641. Criminal prosecutions — removal Qrouods of removal — diverse citizenship.
of. Virginia v. Paul, 148 U. S. 107; Ten- Stevens v. Nicliols, 130 U. S. 230; Peper
nessee V. Davis, 100 U. S. 257; Davis v. v. Fordyce, 119 U. S. 469; Removal
South Carolina, 107 U. S. 597 ; Cunning- Cases, 100 U. S. 457 ; Crehore v. O. & M.
ham V. Neagle, 135 U. S. 1. R. R. Co., 131 U. S. 240; Young v.
Actions that may be removed. West v. Ewart, 132 U. S. 267; Graves v. Corbin,
Aurora, 6 Wall. 139; Green v. Custard, 132 U. S. 571; Kellam v. Keith, 144 U.
23 How. 484 ; Bondurant v. Watson, 103 S. 568.
U. S. 281 ; Gordon v. Longest, 16 Pet. Time of removal and proceedings to remove.
97; Kanouse v. Martin, 15 How. 198; Core v. Vinal, 117 U. S. 347; Holland v.
Searl v. Lake Co. School, 124 U. S. 197. Chambers, 110 U. S. 59; Alley v. Nott,
Amount in controversy must exceed two 111 U. S. 472; Edrington v. Jefferson,
thousand dollars. Ex parte Pennsyl- 111 U. S. 770: Pullman Car Co. v. Speck,
vania Co., 137 U. S. 451; Marshall v. 113 U. S. 84; Removal Cases, 100 U.S.
Holmes, 141 U. S. 589. 457; Phoenix Ins. Co. v. Pechner, 95 U.
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next circuit court to be held in the district where it is pending. Upon
the filing of such petition all further proceedings in the State courts
shall cease, and shall not be resumed except as hereinafter provided.
But all bail and other security given in such suit or prosecution shall
continue in like force and effect as if the same had proceeded to final
judgment and execution in the State court. It shall be the duty of
the clerk of the State court to furnish such defendant, petitioning
for a removal, copies of said process against him, and of all pleadings,
depositions, testimony and other proceedings in the case. If such
copies are filed by said petitioner in the circuit court on the first day
of its session, the cause shall proceed therein in the same manner as
if it had been brought there by original process : and if the said clerk
refuses or neglects to furnish such copies, the petitioner may there-
upon docket the case in the circuit court, and the said court shall
then have jurisdiction therein, and may, upon proof of such refusal
or neglect of said clerk, and upon reasonable notice to the plaintiff,
require the plaintiff to file a declaration, petition or complaint in the
cause ; and, in case of his default, may order a non-suit and dismiss the
case at the costs of the plaintiff, and such dismissal shall be a bar to
any further suit touching the matter in controversy. But if, without
such refusal or neglect of said clerk to furnish such copies and proof
thereof, the petitioner for removal fails to file copies in the circuit
court as herein provided, a certificate, under the seal of the circuit
court, stating such failure, shall be given, and upon the production
thereof in said State court, the cause shall proceed therein as if no
petition for a removal had been filed.
S. 183; Crehore v. O. & M. R. R. Co., Clark, 119 U. S. 502; L. & N. R. R. Co.
131 U. S. 240; Kansas City R. R. Co. v. v. Ide, 114 U. S. 52; Graves v. Corbin,
Daughtry, 138 U. S. 298 ; MarshaU v. 132 U. S. 571 ; Mitchell v. Smale, 140 U.
Holmes, 141 U. S. 589 ; Pish v. Henarie, S. 406 ; Torrence v. Shedd, 144 U. 8.
142 U. S. 459; Pennsylvania Co. v. Ben- 527 ; City of Bellaire v. B. & O. R. R.,
der, 148 U. S. 255. 146 U. S. 117.
Prejirtlice or local influeace entitlias fwrty Decisions of Court of Appeals of Keatuclcy
to removaL Gains v. Fuentes, 92 U. S. on removal of causes. Hov^land C. and I.
10 ; Hancock v. Holbrook, 119 U. S. 586; Works v. Brown, 13 Bush 681 ; Alexan-
B. & O. R. R. Co. v. Bates, 119 U. S. 464 ; der v. Gish, 88 Ky. 13 ; Hall v. Ricketts,
JEr jtaHe Pennsylvania Co., 137 U. 8. 9 Bush 366; Edwards v. VTard, 2 Bush
451 ; Fish v. Henarie, 142 U. S. 459. 606 ; Short v. Wilson, 1 Bush 350 ;
Corporation is citizen of State creatine it in Eifort v. Berins, 1 Bush 461 ; Savings
meaning of this statute. Kansas Pacific R. Bank v. Benton, 2 Met. 240 ; Tibbatts v.
R. V. Atchison R. R., 112 U. S. 414 ; Bar- Berry, 10 B. M. 473 ; Eastin v. Rucker,
ren v. Burnside, 121 U. S. 186; Home 1 J. J. M. 232; Parberry v. Coram, 3
Ins. Co. V. Morse, 20 Wall. 445. Bibb 107; Shepherd v. Young, 1 Mon. 203.
RIf ht of one of several parties to removal. Action against receiver — practice. See
Little V. Giles, 118 U. S. 596 ; Brooks v. Hard wick v. Kean, 95 Ky. 563.
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582 REMOVAL OF ACTIONS TO FEDERAL COURTS. [APPENDIX
§ 642. Pethlooer io cuftody of Stite cmrU writ ^ liabeis corpus to be isscetf.
"When all the acts necessary for the removal of any suit or prosecu-
tion, as provided in the preceding section, have been performed, and
the defendant petitioning for such removal is in actual custody on
process issued by said State court, it shall be the duty of the clerk of
said circuit court to issue a writ of habeas corpus cum causa, and of
the marshal, by virtue of said writ, to take the body of the defendant
into his custody, to be dealt with in said circuit court according to
law and the orders of said court or in vacation of any judge thereof;
and the marshal shall file with or deliver to the clerk of said State
court a duplicate copy of said writ.
§ 643. Actioo or prosecution agaiost reveirae or electiofl officer — lialieas corpus.
"When any civil suit or criminal prosecution is commenced in any
court of a State against any oflicer appointed under or acting by
authority of any revenue law of the United States now or hereafter
enacted, or against any person acting under or by authority of any
such officer, on account of any act done under color of his office or of
any such law, or on account of any authority claimed by such officer
or other person under any such law ; or is commenced against any
person holding property or estate by title derived from any such
officer, and affects the validity of any such revenue law ; or is com-
menced against any officer of the United States, or other person, on
account of any act done under the provisions of Title XXVI, " The
Elective Franchise," or on account of any right, title or authority
claimed by such officer or other person under any of the said pro-
visions, the said suit or prosecution may, at any time before the trial
or final hearing thereof, be removed for trial into the circuit court
next to be holden in the district where the same is pending, upon the
petition of such defendant to said circuit court, and in the following
manner: Said petition shall set forth the nature of the suit or prose-
cution, and be verified by affidavit; and, together with a certificate
signed by an attorney or counselor at law of some court of record of
the State where such suit or prosecution is commenced, or of the
United States, stating that, as counsel for the petitioner, he has
examined the proceedings against him, and carefully inquired into
all the matters set forth in the petition, and that he believes them
to be true, shall be presented to the said circuit court, if in session,
or if it be not, to the clerk thereof at his office, and shall be filed in
said office. The cause shall thereupon be entered on the docket of
the circuit court, and shall proceed as a cause originally commenced
in that court; but all bail and other security given upon such suit or
prosecution shall continue in like force and eftect as if the same had
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proceeded to final judgment and execution in the State court. When
the suit is commenced in the State court by summons, subpoena, peti-
tion or another process, except capias^ the clerk of the circuit court
shall issue a writ of certiorari to the State court, requiring it to send
to the circuit codrt the record and proceedings in the cause. When
it is commenced by capias^ or by any other similar form of proceed-
ing by which a personal arrest is ordered, he shall issue a writ of
habeas corpus cum causa^ a duplicate of which shall be delivered to
the clerk of the State court, or left at his office, by the marshal of the
district or his deputy, or by some person duly authorized thereto ;
and thereupon it shall be the duty of the State court to stay all fur-
ther proceedings in the cause, and the suit or prosecution, upon
delivery of such process, or leaving the same as aforesaid, shall be
held to be removed to the circuit court, and any further proceedings,
trial or judgment therein in the State court shall be void. And if
the defendant in the suit or prosecution be in actual custody on
mesne process therein, it shall be the duty of the marshal, by virtue
of the writ of habeas corpus cum causa, to take the body of the defend-
ant into his custody, to be dealt with in the cause according to law
and the order of the circuit court, or, in vacation, of any judge there-
of; and if, upon the removal of such suit or prosecution, it is made
to appear to the circuit court that no copy of the record and proceed-
ings therein in the State court can be obtained, the circuit court may
allow and require the plaintiff to proceed de novo, and to file a declar-
ation of his cause of action, and the parties may thereupon proceed
as in actions originally brought in said circuit court. On failure of
the plaintiff so to proceed, judgment of non prosequitur may be
rendered against him, with costs for the defendant.
§ 644, ActkMi by alieo afaiost civil officer of Uoited States — removal of. When-
ever a personal action has been or shall be brought in any State court
by an alien against any citizen of a State who is, or at the time the
alleged action accrued was, a civil officer of the United States, being
a non-resident of that State wherein jurisdiction is obtained by the
State court, by personal service of process, such action may be
removed into the circuit court of the United States in and for the
district in which the defendant shall have been served with the proc-
ess in the same manner as now provided for the removal of an action
brought in a State court by the provisions of the preceding section.
§ 645. Copies of records io State court — ^when may be supplied. In any case
where a party is entitled to copies of the record and proceedings in
any suit or prosecution in a State court, to be used in any court of
the United States, if the clerk of said State court, upon demand, and
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684 REMOVAL OF ACTIONS TO FEDERAL COURTS. [APPENDIX
the payment or tender of the legal fees, refuses or neglects to deliver
to him certified copies of such records and proceedings, the court of
the United States in which such records and proceedings are needed
may, on proof by affidavit that the clerk of said State court has
refused or neglected to deliver copies thereof on dfemand as afore-
said, direct such record to be supplied by affidavit, or otherwise, as
the circumstances of the case may require and allow: and, thereupon,
such proceeding, trial and judgment may be had in the said court of
the United States, and all such processes awarded, as if certified copies
of such records and proceedings had been regularly before the said
court.
§ 646. Attachmeots — iojuoctioos — bonds issued or taken in State court Wlien
a suit is removed for trial from a State court to a circuit court, as
provided in the foregoing sections, any attachment of the goods or
estate of the defendant by the original process shall hold the same to
answer the final judgment, in the same manner as by the laws of such
State they would have been held to answer final judgment had it
been rendered by the court in which the suit was commenced; and
any injunction granted before the removal of the cause against the
defendant applying for its removal shall continue in force until mod-
ified or dissolved by the United States court into which the cause is
removed ; and any bond of indemnity or other obligation, given by
the plaintiff upon the issuing or granting of any attachment, writ of
injunction or other restraining process, against the defendant peti-
tioning for the removal of the cause, shall also continue in full force
and may be prosecuted by the defendant and made available for his
indemnity in case the attachment, injunction or other restrain-
ing process be set aside or dissolved, or judgment be rendered in his
favor, in the same manner, and with the same effect as if such attach-
ment, injunction or other restraining process had been granted, and
such bond had been originally filed or given in such State court.
ACT OF MARCH 3, 1875.
[supplement to revised statutes, page 83.]
§ 4. Attachments and bonds taken in State court not affected — injunction. That
when any suit shall be removed from a State court to a circuit court
of the United States, any attachment or sequestration of the goods
or estate of the defendant had in such suit in the State court shall
hold the goods or estate so attached or sequestered to answer the
final judgment or decree in the same manner as by law they would
have been held to answer final judgment or decree had it been ren-
dered by the court in which said suit was commenced.
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And all bonds, undertakings or security given by either party in
such suit prior to its removal shall remain valid and eflfectual, not-
withstanding said removal.
And all injunctions, orders and other proceedings had in such suit
prior to its removal shall remain in full force and eflfect until dissolved
or modified by the court to which such suit shall be removed.
§ 5. Action improperly removed to be dismissed or remaoded. That if, in any
suit commenced in a circuit court, or removed from a State court to a
circuit court of the United States, it shall appear to the satisfaction
of said circuit court, at any time after such suit has been brought or
removed thereto, that such suit does not really and substantially
involve a dispute or controversy properly within the jurisdiction of
said circuit court, or that the parties to said suit, have been improp-
erly or collusively made or joined, either as plaintiflFs or defendants,
for the purpose of creating a case cognizable or removable under
this act, the said circuit court shall proceed no further therein, but
shall dismiss the suit or remand it to the court from which it was
removed as justice may require, and shall make such order as to
costs as shall be just. [Lines omitted expressly repealed by act of August
13, 188S:\
§ 6. Proceedings io actions after removal. That the circuit court of the
United States shall, in all suits removed under the provisions of this
act, proceed therein as if the suit had been originally commenced
in said circuit court, and the same proceedings had been taken in such
suit in said circuit court as shall have been had therein in said State
court prior to its removal.
§ 7. Time to file record — appearance — penalty for refusing to famish copy —
certiorari. That in all causes removable under this act, if the term of
the circuit court to which the same is removable, then next to be
holden, shall commence within twenty days after filing the petition
and bond in the State court for its removal, then he or they who
apply to remove the same shall have twenty days from such applica-
tion to file said copy of record in said circuit court and enter appear-
ance therein ; and if done within said twenty days, such filing and
appearance shall be taken to satisfy the said bond in that behalf.
That if the clerk of the State court in which any such cause shall
be pending shall refuse, to any one or more of the parties or persons
applying to remove the same, a copy of the record therein, after
tender of legal fees for such copy, said clerk so oflFending shall be
deemed guilty of a misdemeanor, and, on conviction thereof in the
circuit court of the United States to which said action or proceeding
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586 REMOVAL OP ACTIONS TO FBDERAL COURTS. [APPENDIX
was removed, shall be punished by imprisonment not more than one
year, or by fine not exceeding one thousand dollars, or both, in the
discretion of the court.
And the circuit court to which any cause shall be removable under
this act shall have power to issue a writ of certiorari to said State
court, commanding said State court to make return of the record in
any such cause removed as aforesaid, or in which any one or more of
the plaintiffs or defendants have complied with the provisions of this
act for the removal of the same, and enforce said writ according to
law.
And if it shall be impossible for the parties or persons removing any
cause under this act, or complying with the provisions for the removal
thereof, to obtain such copy, for the reason that the clerk of said
State court refuses to furnish a copy, on payment of legal fees, or for
any other reason, the circuit court shall make an order requiring the
prosecutor in any such action or proceeding to enforce forfeiture or
recover penalty as aforesaid, to file a copy of the paper or proceed-
ing by which the same was commenced, within such time as the court
may determine ; and in default thereof the court shall dismiss the
said action or proceeding.
But if said order shall be complied with, then said circuit court
shall require the other party to plead, and said action or proceeding
shall proceed to final judgment; and the said circuit court may make
an order requiring the parties thereto to plead de novo; and the bond
given, conditioned as aforesaid, shall be discharged so far as it requires
copy of the record to be filed as aforesaid.
§ 8. Actkm to eoforce lieo — service oo noo-resideot — ^jadfmeot — tlaie to set
aside judinDeat. That when in any suit, commenced in any circuit court
in the United States, to enforce any legal or equitable lien upon, or
claim to, or to remove any incumbrance or lien or cloud upon the
title to real or personal property within the district where such suit
is brought, one or more of the defendants therein shall not be an
inhabitant of, or found within, the said district, or shall not volun-
tarily appear thereto, it shall be lawful for the court to make an order
directing such absent defendant or defendants to appear, pleads
answer or demur, by a day certain to be designated, which order
shall be served on such absent defendant or defendants, if practicable,
wherever found, and also upon the person or persons in possession or
charge of said property, if any there be.
Or where such personal service upon such absent defendant or
defendants is not practicable, such order shall be published in such
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manner as the court may direct, not less than once a week for six
consecutive weeks.
Aud in case such absent defendant shall not appear, plead, answer
or demur within the time so limited, or within some further time, to
be allowed by the court, in its discretion, and upon proof of the serv-
ice or publication of said order, and of the performance of the
directions contained in the same, it shall be lawful for the court to
entertain jurisdiction, and proceed to the hearing and adjudication of
such suit in the same manner as if such absent defendant had been
served with process within the said district.
But said adjudication shall, as regards said absent defendant or
defendants without appearance, affect only the property which shall
have been the subject of the suit and under the jurisdiction of the
court therein, within such district.
And when a part of the said real or personal property against
which such proceeding shall be taken shall be within another dis-
trict, but within the same State, said suit may be brought in either
district in said State :
Provided^ however^ That any defendant or defendants not actually
personally notified as above provided may, at any time within one
year aft^r final judgment in any suit mentioned in this section, enter
his appearance in said suit in said circuit court, and thereupon the
said court shall make an order setting aside the judgment therein,
and permitting said defendant or defendants to plead therein on pay-
ment by him or them of such costs as the court shall deem just ; and
thereupon said suit shall be proceeded with to final judgment
according to law.
§ 9. Death of imrty after judfmeot and before explratioo of time to appeal —
That whenever either party to a final judgment or decree which has
been or shall be rendered in any circuit court has died or shall die
before the time allowed for taking an appeal or bringing a writ of
error has expired, it shall not be necessary to revive the suit by any
formal proceedings aforesaid.
The representatives of such deceased party may file in the oflice of
the clerk of such circuit court a duly certified copy of his appoint-
ment, and thereupon may enter an appeal or bring writ of error as the
party he represents might have done.
If the party in whose favor such judgment or decree is rendered
has died before appeal taken or writ of error brought, notice to his rep-
resentative shall be given from the Supreme Court, as provided in case
of the death of a party after appeal taken or writ of error brought.
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588 REMOVAL OP ACTIONS TO FEDERAL COURTS. [APPENDIX
§ 10. Repealioic clause. That all acts and parts of acts in conflict with
the provisions of this act are hereby repealed.
ACT OF AUGUST 13, 1888.
[supplement to revised statutes, page 611.]
Jurisdiction of circuit courts — ^veone — ^action by assipiee — appellate Jnrisdictiofl.
That the act approved March third, eighteen hundred and eighty-
seven, entitled "An act to amend sections one, two, three and ten of
an act to determine the jurisdiction of the circuit courts of the
United States, and to regulate the removal of causes from State
courts, and for other purposes, approved March third, eighteen
hundred and seventy-five," be and the same is hereby amended so as
to read as follows :
" That the first section of an act entitled *An act to determine the
jurisdiction of circuit courts of the United States and to regulate the
removal of causes from State courts and for other purposes, approved
March third, eighteen hundred and seventy-five, be, and the same is
hereby amended so as to read as follows :
" That the circuit courts of the United States shall have original
cognizance, concurrent with the courts of the several States,
of all suits of a civil nature, at common law or in equity,
where the matter in dispute exceeds, exclusive of interest and costs,
the sum or value of two thousand dollars, and arising under the
Constitution or laws of the United States, or treaties made, or which
shall be made, under their authority, or in which controversy the
United States are plaintiflfe or petitioners, or in which there shall be
a controversy between citizens of different States, in which the mat-
ter in dispute exceeds, exclusive of interest and costs, the sum or
value aforesaid, or a controversy between citizens of the same State
claiming lands under grants of different States, or a controversy
between citizens of a State and foreign States, citizens or subjects, in
which the matter in dispute exceeds, exclusive of interest and costs,
the sum or value aforesaid, and shall have exclusive cognizance of all
crimes and offenses cognizable under the authority of the United
States, except as otherwise provided by law, and concurrent jurisdic-
tions with the district courts of the crimes and offenses cognizable
by them.
" But no person shall be arrested in one district for trial in another
in any civil action before a circuit or district court.
"And no civil suit shall be brought before either of said courts
against any person by any original process or proceeding in any
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Other district than that whereof he is an inhabitant, but where the
jurisdiction is founded only on the fact that the action is between
citizens of different States, suit shall be brought only in the district
of the residence of either the plaintiff or the defendant.
" Nor shall any circuit or district court have cognizance of any suit,
except upon foreign bills of exchange, to recover the contents of any
promissory note or other chose in action in favor of any assignee, or
of any subsequent holder if such instrument be payable to bearer
and be not made by any corporation, unless such suit might have
been prosecuted in such court to recover the said contents if no
assignment or transfer had been made.
" And the circuit courts shall also have appellate jurisdiction from
the district courts under the regulations and restrictions prescribed
by law."
That the second section of said act be and the same is hereby
amended, so as to read as follows :
'^ § 2. Removal of actions arisiof under laws of United States or on account of
pre]udice or local influence. That any suit of a civil nature, at law or in
equity, arising under the Constitution or laws of the United States,
or treaties made, or which shall be made, under their authority, of
which the circuit courts of the United States are given original juris-
diction by the preceding section, which may now be pending, or
which may hereafter be brought, in any State court, may be removed
by the defendant or defendants therein to the circuit court of the
United States for the proper district.
"Any other suit of a civil nature, at law or in equity, of which the
circuit courts of the United States are given jurisdiction by the pre-
ceding section, and which are now pending, or which may hereafter
be brought, in any State court, may be removed into the circuit court
of the United States for the proper district by the defendant or
defendants therein, being non-residents of that State.
"And when in any suit mentioned in this section there shall be a
controversy which is wholly between citizens of different States, and
which can be fully determined as between them, then either one or
more of the defendants actually interested in such controversy may
rejnove said suit into the circuit court of the United States for the
proper district.
"And where a suit is now pending, or may be hereafter brought, in
any State court, in which there is a controversy between a citizen of
the State in which the suit is brought and a citizen of another State,
any defendant, being such citizen of another State, may remove such
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690 REMOVAL OF ACTIONS TO FEDERAL COURTS. [APPENDIX
suit into the circuit court of the United States for the proper dis-
trict, at any time before the trial thereof, when it shall be made to
appear to said Circuit Court that from prejudice or local influence
he will not be able to obtain justice in such State court, or iu any
other State court to which the said defendant may, under the laws of
the State, have the right, on account of such prejudice or local in-
fluence, to remove said cause.
^'Providedy That if it further appear that said suit can be fully and
justly determined as to the other defendants in the State court, with-
out being affected by such prejudice or local influence, and that no
party to the suit will be prejudiced by a separation of the parties,
said circuit court may direct the suit to be remanded, so far as relates
to such other defendants, to the State court, to be proceeded with
therein.
" At any time before the trial of any suit which is now pending in
any circuit court, or may hereafter be entered therein, and which has
been removed to said court from a State court on the aflidavit of any
party plaintiff that he had reason to believe and did believe that,
from prejudice or local influence, he was unable to obtain justice in
said State court, the circuit court shall, on application of the other
party, examine into the truth of said affidavit and the grounds
thereof, and, unless it shall appear to the satisfaction of said court
that said party will not be able to obtain justice in such State court,
it shall cause the same to be remanded thereto.
" Whenever any cause shall be removed from any State court into
any circuit court of the United States, and the circuit court shall
decide that the cause was improperly removed, and order the same
to be remanded to the State court from whence it came, such remand
shall be immediately carried into execution, and no appeal or writ of
error from the decision of the circuit court so remanding such cause
shall be allowed."
That section three of said act be and the same is hereby amended
80 as to read as follows :
'' § a. Peti^o and hood— proceedioss— actions kvolviiig title to laod. That
whenever any party entitled to remove any suit mentioned in the
next preceding section, except in such cases as are provided for, in
the last clause of said section, may desire to remove such suit from a
State court to the circuit court of the United States, he may make
and file a petition in such suit in such State court at the time, or at
any time before the defendant is required by the laws of the State or
the rule of the State court in which such suit is brought to answer
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or plead to the declaration or complaint of the plaintiflT, for the re-
moval of such suit into the circuit court to be held in the district
where such suit is pending, and shall make and file therewith a bond,
with good and sufficient surety, for his or their entering in such circuit
court on the first day of its then next session, a copy of the record
in such suit, and for paying all costs that may be awarded by the
said circuit court if said court shall hold that such suit was wrong-
fully or improperly removed thereto, and also for their appearing
and entering special bail in such suit if special bail was originally
requisite therein.
" It shall then be the duty of the State court to accept said peti-
tion and bond, and proceed no further in such suit.
" And the said copy being entered as aforesaid in said circuit court of
the United States, the cause shall then proceed in the same manner
as if it had been originally commenced in the said circuit court.
"And if in any action commenced in a State court the title of land
be concerned, and the parties are citizens of the same State, and the
matter in dispute exceed the sum or value of two thousand dollars,
exclusive of interest and costs, the sum or value being made to ap-
pear, one or more of the plaintifl:8 or defendants, before the trial,
may state to the court, and make affidavit if the court require it,
that he or they claim and shall rely upon a right or title to the land
under a grant from a State, and produce the original gi*ant or an
exemplification of it, except where the loss of public records shall
put it out of his or their power, and shall move that any one or more
of the adverse party inform the court whether he or they claim a
right or title to the land under a grant from some other State, the
party or parties so required shall give such information, or otherwise
not be allowed to plead such grant or give it in evidence upon the
trial.
"And if he or they inform that he or they do claim under such
grant, any one or more of the party moving for such information
may then, on petition and bond, as hereinbefore mentioned in this
act, remove the cause for trial to the circuit court of the United
States next to be holden in such district.
"And any one of either party removing the cause shall not be
allowed to plead or give evidence of any other title than that by him
or them stated as aforesaid as the ground of his or their claim."
§ 2. Receivers to nuuiage property accorcHnic to State tews — pewdty. That
whenever in any cause pending in any court of the United States
there shall be a receiver or manager in possession of any property,
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592 REMOVAL OF ACTIONS TO FEDERAL COURTS. [APPENDIX
such receiver or manager shall manage and operate such property-
according to the requirements of the valid laws of the State in which
such property shall be situated, in the same manner that the owner
or possessor thereof would be bound to do if in possession thereof.
Any receiver or manager who shall willfully violate the provisions
of this section shall be deemed guilty of a misdemeanor, and shall,
on conviction thereof, be punished by a fine not exceeding three
thousand dollars, or by imprisonment not exceeding one year, or by
both said punishments, in the discretion of the court.
§ 3. Actions ajcaiost receivers. That every receiver or manager of any
property appointed by any court of the United States may be sued
in respectof any act or transaction of his in carrying on the business
connected with such property, without the previous leave of the
court in which such receiver or manager was appointed.
But such suit shall be subject to the general equity jurisdiction of
the court in which such receiver or manager was appointed, so far as
the same shall be necessary to the ends of justice.
§ 4. National banks — actions concemlnic. That all national banking asso-
ciations established under the laws of the United States shall, for the
purposes of all actions by or against them, real, personal or mixed,
and all suits in equity, be deemed citizens of the States in which they
are respectively located.
And in such cases the circuit and district court shall not have juris-
diction other than such as they would have in cases between individual
citizens of the same State.
The provisions of this section shall not be held to affect the juris-
diction of the courts of the United States in cases commenced by the
United States, or by direction of any officer thereof, or cases for wind-
ing up the affairs of any such bank.
§ 5. Laws not repealed by this act That nothing in this act shall be
held, deemed or construed to repeal or affect any jurisdiction or right
mentioned either in sections six hundred and forty-one, or in six
hundred and forty-two, or in six hundred and forty-three, or in seven
hundred and twenty-two, or in title twenty-four of the Revised
Statutes of the United States, or mentioned in section eight of the
Act of Congress of which this act is an amendment, or in the Act of
Congress approved March first, eighteen hundred and seventy-five,
entitled "An act to protect all citizens in their civil and legal rights."
§ 6. Repeallnic clause. That the last paragraph of section five of the
Act of Congress approved March third, eighteen hundred and seventy-
five, entitled "An act to determine the jurisdiction of circuit courts
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of the United States and to regulate the removal of causes from State
courts, and for other purposes;'' and section six hundred and forty of
the Revised Statutes, and all laws and parts of laws in conflict with
the provisions of this act, be and the same are hereby repealed :
J^ovidedy That this act shall not affect the jurisdiction over or dis-
position of any suit removed from the court of any State, or suit
commenced in any court of the United States, before the passage
hereof, except as otherwise expressly provided in this act.
CHAPTER VII.
RULES OP CX)URT OP APPEALS, ADOPTED JANUARY, 1805.
The following were ordered to be recorded as rules of practice of
the court :
1. Divisioo of court into two defMulments — sessions — chief Justice's powers and
duties. In accordance with section 118 of the Constitution, this
court, after January 1, 1895, will be divided into two departments,
each one of which shall consist of three judges, besides the chief
justice, who shall preside over each department. Each division shall
sit on alternate days during each week, when not in joint session, to
hear arguments and motions and deliver opinions. Opinions shall
be delivered as the judgment of the court without reference to the
department delivering them. When the chief justice is absent, or,
if present, from any cause fails to preside, the judge next oldest in
commission shall preside with each department, and shall require
the presence of a judge from either department when necessary to con-
stitute a majority of the entire body. The cases, when submitted,
shall be assigned by the chief justice to each department, and in such
a manner as to equalize the burden.
2. FnO court to iicar and decide cases — when. Whenever a case involves
a constitutional question, either Federal or State, or in any case
where, in the opinion of the chief justice, the importance of the case
requires, both departments shall hear the argument, whether oral or
written, and pass on the questions involved; and in cases where the
judges composing one department do not concur, it shall be the duty
of the chief justice to notify the other department, and have the
questions at issue disposed of in joint session.
When a majority of either department, including the chief jus-
tice, shall desire a joint session for the purpose of passing on any
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594 RULES OF THE COURT OF APPEALS. [APPENDIX
question, or hearing any cause, the entire body shall be assembled for
that purpose.
^ Briefs wheo to be filed — peialty for f lilore— oral arfuneiit — order of trial —
docket That in all cases or appeals hereafter filed, or now filed and not
submitted, it shall be the duty of the appellant to file his brief twenty
days prior to the day the case is set for hearing, and the appellee to
file his brief ten days prior to that time, and a failure to do so by the
appellant shall cause a dismissal of the appeal without prejudice, and
upon part of appellee, he will, if in default, be required to pay
the costs up to the date of filing his brief. No oral argument will
be ordered or heard on the part of the party in default unless his brief
is filed as herein provided. When the briefs are in, or the briel of
the party not in default, an oral argument will be ordered if desired,
and a time fixed for the hearing, unless the parties are ready to pro-
ceed when the case is called.
All cases will be decided as nearly as practicable in the order of their
submission.
After all cases heretofore submitted for argument, and the submit-
ted cases, shall be disposed of, a docket embracing all pending cases
will be published in sufficient time to enable parties to comply with
the rules of this court.
4. Two argnmeots allowed on each side — time limited. But two oral argu-
ments on each side will be allowed in any case, and every such argu-
ment will be limited to one hour.
5. Records not property made out or indexed coodemoed— duty of clerk. Rec-
ords not made out in a legible handwriting, or not indexed, are
to be condemned, and the clerk making out such record to be
prohibited from collecting anything therefor; and the clerk of this
court will disregard the expense thereof in taxing cost without any
special order in the case.
6. Rehearias: — when i:raoted. When two members of a department
desire it, a rehearing shall be granted.
7. Old record required ia peodiaji; case — penalty for failure to place with new
record. When the record of a former appeal in the same cause is
necessary to the decision of a subsequent appeal, or when a record
already in this court is made part of a record in another case, and
not copied into the transcript, the attorney for the appellant must see
to it, on pain of having the appeal dismissed, that such old record is
l)laced with the new record before the cause is submitted.
8. Motiofl to require clerk or party to pay costs of unnecessary record. A
party intending to move that the clerk of the inferior court, or
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the adverse party, shall be adjudged to pay the costs resulting
from a violation by such clerk or party of subsection 11, of section
737, of the Civil Code, shall make such motion at or before the sub-
mission of the cause, and not thereafter; and such motion shall indi-
cate the portions of the record claimed to have been improperly
copied and the pages of the transcript where they may be found.
9. Notice to clerk of motioo. If the motion is against the clerk, he
must be served with a copy of the written motion at least five days
before the cause is submitted.
10. Withdrawal of record — penalty for failian; to return in time. If an ap-
pellant or his attorney, or an appellee with a cross-appeal, or his at-
torney, shall, for any purpose, withdraw the record from the clerk's
custody without the special order of the court, and fail or neglect to
produce it in court on call of the case for submission or argument,
the appeal or cross-appeal, on motion of the adverse party, shall be
dismissed for want of proper prosecution.
11. Delay case — notice of motion to affirm. Ten days' notice of a motion
to affirm as a delay case must be given appellant or his attorney,
otherwise such motion will not be heard until the case is called for
trial on the day it is set on the docket.
12. Rehearinn; — ^filios petition for in vacation — extension of time to file.
Where time is extended to file a petition for rehearing, and the
time expires during vacation, or where the court adjourns before the
time for filing a petition for rehearing has expired, the filing of the
petition with the clerk in the clerk's office within the time shall be
held sufficient. The clerk, however, has no right to extend the time
for filing, and this can only be done by an order from one of the
judges.
13. Refaearios — ^jm^e wlio shall sot consider petition for. Petitions for re-
hearing shall be considered by a judge other than the one who
delivered the opinion in the case.
14. Terms of court — three each year. Ordered, That there be held three
terms of the Court of Appeals in each year, as follows :
September term, beginning third Monday in September, and end-
ing the second Saturday in December.
January term, beginning first Monday in January, and ending the
last Saturday in March.
April term, beginning second Monday in April, and ending first
Saturday in July.
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FORMS IN CIVIL ACTIONS.
CiucuiT Court.
Petition.
PETITIONS.
[What pleadings must be verified, sec. 110; by whom to be verified, sec. 117:
forms of verification, page 627 ; how and before whom verified, sees. 551,549; when
may be verified, and waiver of verification, sees. 137, 138; and see note 44, page 72.]
Partners — by,
[ See note 42, page 71.]
James Giles and Henry Allen, partners, doing
business under the firm name of Giles &
Allen, Plaintiflfs,
v$.
James Jones, Defendant.
The plaintiffs, James Giles and Henry Allen, partners, doing business under the
firm name of Giles <& Allen, state [here state cause of action].
Partners — against
[See note 42, page 71.]
James Jones, Plaintiff,
va,
James Giles and Henry Allen, partners
[or late partners, if firm has dis-
solved], doing business under the firm
name of Giles & Allen, Defendants.
The plaintiff, James Jones, states that the defendants, James Giles and Henry
Allen, are partners [or late partners, if firm has dissolved], doing business [or lately
doing business] under the firm name of Giles & Allen, and that [here state cause of
action].
Administrator — against.
[See note 1, page 98.]
John Smith, Plaintiff, 1 Circuit Court.
*. , . , . ,, J" Petition.
James Jones, Administrator of Henry
Allen, Defendant.
The plaintiff, John Smith, states that on the day of , 189— , Henry
Allen died, a resident of county, Kentucky, and on 10, 189 — , the defend-
ant, James Jones, was, by order of the county court of said county, appointed
administrator of his estate, and thereupon qualified and is now acting as such admin-
istrator. Copies of the orders showing his appointment and qualification are filed as
part hereof, marked ** A." That [here state cause of action].
(596)
Circuit Court.
Petition.
1
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CIVIL CODE FORMS — PETITIONS. 597
Circuit Court.
Petition.
Executor — by.
[See note 1, page 98.]
James Giles, Executor of John Smith,
Plaintiflf,
vs,
James Jones, Defendant.
The plaintiflf, James Giles, states that on the day of , 18d — , John Smith,
then a resident of county, Kentucky, died, having made and published his last
will, which was, on the day of , 189 — , admitted to probate by the county
court of said county, and thereupon the plaintiff who was nominated in said will as
executor qualified in said court, and is now acting as such executor. Copies of the
orders of said court showing his qualifications are filed as part hereof, marked **B."
That the defendant, James Jones [here state cause of action].
Circuit Court.
Petition.
Admiaistrator — by.
[See note 1, page 98.]
John Smith, Administrator of Henry
Jones, Plaintiff,
tw.
James Jones, Defendant.
The plaintiff, John Smith, states that on the day of , 189—, Henry
.Tones died intestate a resident of county, Kentucky, and on the day of
, 189 — , the plaintiff was, by an order of the county court of said county,
appointed administrator of his estate, and thereupon qualified and is now acting
as such administrator. Copies of order of said court showing his appointment and
qualification are filed as part hereof, marked *'A," that defendant, James Jones
[here state cause of action].
Admiaistrator With the Will Aaoexed— Agaiast.
[See Ky. Stat., sees. 3890-3893.]
James Jones, Plaintiff,
va.
Henry Smith, Administrator with the will
annexed of John Brown, Defendant.
The plaintiff, James Jones, states that on the day of , 189 — , John Brown,
then a resident of county, Kentucky, died, having made and published his last
will, which was on the of , 189 — , admitted to probate by the county court of
said county. He states that said will did not nominate any person as executor [or
, the person nominated as executor, declined to act] and that on the of ,
189—, the defendant, Henry Smith, was, by order of said court, appointed admin-
istrator with the will annexed of said Brown, and thereupon qualified and is now
acting as such administrator. Copies of the order of said court showing the pro-
bate of said will and the appointment of defendant as administrator aforesaid
are filed as part hereof, marked **A." He states [here state cause of action].
Committee, Curator, Trustee or Ouardlao.
In an action by or against a committee, curator, trustee or guardian, the petition
should state facts in the manner set out in preceding forms, showing the appoint-
ment and qualification of the fiduciary, and there should be filed with it the orders
of the court in reference thereto.
Circuit Court.
Petition.
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598 CIVIL CODE FORMS — PETITIONS.
Corporatioo — by.
The Acme Pin Company, Plaintiff, ) Cikcuit Court.
vs. >• Petition.
John Jones, Defendant. )
The plaintiff, the Acme Pin Company, states that it is a corporation created
under the laws of [here give name of State under laws of which corporation was
organized], and authorized to sue and be sued, contract and be contracted with, and
conduct the business of [here state business corporation is engaged in], under and
by its corporate name, **The Acme Pin Company." It states [here state cause of
action].
If action is against a corporation this form will illustrate how It should be sued.
Oa Note.
[See notes 68. 64, page 78.]
John Smith, Plaintiff, ) OiRCurr Court.
v8. > Petition.
James Jones, Defendant. )
The plaintiff, John Smith, states that the defendant, James Jones, by his prom-
issory note, dated , 189—, and executed and delivered to plaintiff, agreed to pay
him thereafter dollars, with six per cent interest thereon from until
paid. Said note is filed as part hereof, marked **A," and is due, and no part of it
has been paid [except — if the note is entitled to any credits here state them].
Wherefore plaintiff prays judgment for his debt, cost and all proper relief.
J. R., Atty. forPlff.
Assignee Against Payor off Note.
[When assignee required to secure costs, sec. 619.]
John Smith, Plaintiff, 1 Cikcuit Court.
vs. j- Petition.
James Jones, Defendant. J
The plaintiff, John Smith, states that the defendant, James Jones, by his prom-
issory note, dated , 189 — , and executed and delivered to Henry Allen, agreed
to pay him six months thereafter dollars, with six per cent interest
thereon from until paid ; on , 189—, Henry Allen assigned said note to
plaintiff by written indorsement thereon. Said note is filed as part hereof, marked
**A,'* and is due, and no part of it has been paid.
Wherefore plaintiff prays judgment for his debt, costs and all proper relief.
J. R., Atty. forPlff.
Lost Note.
[When plaintiff must tender defendant a bond, sec. 7.]
John Smith, Plaintiff, 1 Cibcuit Couht.
vs. }- Petition.
James Jones, Defendant, j
The plaintiff, John Smith, states that the defendant, James Jones, by his prom-
issory note, dated , 189—, and executed and delivered to plaintiff, agreed to pay
him thereafter dollars, with six per cent interest thereon from until paid.
No part of said amount has been paid, although the whole thereof is due, and the
note was, without fraud on the part of the plaintiff, lost and can not be filed here-
with.
Wherefore plaintiff prays judgment for his debt, costs and all proper relief.
J. R., Atty. for Plff.
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CIVIL CODE FORMS — PETITIONS. 599
Merchant's Account
[See notes 1, 2, page 68, and note 26, page 70.]
John Smith, Plalntlflf, ) Circuit Court.
v». ^ Petition.
Jumes Jones, Defendant. )
The plaintiff, John Smith, states that the defendant, James Jones, is indebted
to him in the sum of dollars, for goods and merchandise sold by plaintiff to
defendant in the year , the defendant agreeing when he bought the said goods
to pay for them [state time goods were to be paid for] the prices charged in the
account filed as part hereof, marked **A." Said debt is due and unpaid.
Wherefore plaintiff prays judgment for his debt with interest from [state time
account became due] and all proper relief. J. R., Atty. for Plff.
Merchant's Account
[See notes 1, 2, page C8, and note 26, page 70.]
John Smith, Plaintiff, ] Circuit Court.
v8. y Petition.
James Jones, Dofendant. J
The plaintiff, John Smith, states that the defendant, James Jones, is indebted to
him in the sum of dollars, balance due for goods and merchandise furnished and
delivered by plaintiff to defendant at defendant's request during the year .
He files as. part hereof, marlvcd "A," an account showing the character of goods
and merchandise so furnished and delivered, the prices charged therefor, and the
credits to which defendant is entitled, and states that all of said prices are reason-
able, and there is due on said account the above amount, and said account became
due .
Wherefore he prays judgment for dollars, with interest from [state time
account became due], aud all proper relief. J. R., Atty. for Plff.
Work and Labor.
[See note 13, page 69.]
John Smith, Plaintiff, ) Circuit Court.
vs. > Petition.
James Jones, Defendant. )
The plaintiff, John Smith, states that the defendant, James Jones, is indebted
to him in the sum of sixty dollars, balance due for work done as a farm hand for
defendant by plaintiff in the months of May, June, July and August, in the year
189 — , under a contract whereby defendant agreed to pay plaintiff for his services
twenty dollars per month, payable at the end of each month. The defendant has
paid to plaintiff on account of said services twenty dollars, leaving due and unpaid
the sum aforesaid, which he refuses to pay.
Wherefore he prays judgment for his debt, with interest from , 189 — , and
all proper relief. J. R., Atty. for Plff.
Slander.
[See note 55, page 73 ; and sec. 123 and notes page 99, and sec. 74.]
John Smith, Plaintiff, ) Circuit Court.
vs, [-Petition.
James Jones, Defendant. )
The plaintiff, John Smith, states that on , 189 — , the defendant, James
Jones, in county, Kentucky, in the presence and hearing of divers persons,
falsely and maliciously spoke of and concerning plaintiff these words, **John Smith
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600 CIVIL CODE FORMS — PETITIONS.
stole my horsn," thereby meaning that plaintiff had committed the crime of horse-
stealing, to plaintiff's damage in the sum of dollars. He states that defendant
is a resident of said county [or the said words were spoken therein as the case may
be].
Wherefore plaintiff prays Judgment for dollars and all proper relief.
J. R., Atty for Plff.
Seduction.
[See Ky. Stat., sec. 2, and notes thereto. If action is brought under statute, that
part in brackets can be omitted.]
John Smith, Plaintiff, ) Circuit Court.
vs. \ Petition.
James Jones, Defendant, j
The plaintiff, John Smith, states that about the of May, 18 , the
defendant, James Jones, did willfully and without the consent of plaintiff, debauch
and criminally know his daughter, Mary Smith [then in the service of plaintiff],
whereby the said Mary Smith became pregnant and sick with child [and so remained
for the space of months, and during said time she was unable to attend to her
duties as servant of plaintiff, and he was thereby deprived of her services, and was
obliged to and did expend dollars in nursing and taking care of her during her
said sickness, and was otherwise greatly injured] to his damage in the sum of
dollars.
Wherefore plaintiff prays judgment for dollars and all proper relief.
J. R., Atty. for Plff.
Libel.
[See sees. 74 and 123 of Code and notes thereto.]
Henry Orr, Plaintiff, ) . Circuit Court.
V8, y Petition.
James Lee, Defendant. )
The plaintiff, Henry Orr, states that the defendant, James Lee, is a resident of
county, Kentucky, and that on the of , 189 — , he falsely and mali-
ciously wrote of and concerning the plaintiff, these words [here state words com-
plained of], and caused the same to be printed and published over his signature in a
newspaper published and circulated In said county, and said article so printed and
published was read by divers persons [or in a letter written and signed by defend-
ant and addressed to one John Smith, he falsely and maliciously wrote of and con-
cerning the plaintiff, these words [here state words complained of] and said letter
was received by said Smith and read by him and other persons]. Plaintiff states
that he was damaged by said publication [or letter] in the sum of dollars.
Wherefore he prays judgment against defendant for dollars and for all
proper relief. J. R., Atty. for Plff.
Malicious Prosecution.
[See Code, sec. 74; 82 Ky. 510; 91 Ky. 279; 9 Bush 788.]
A. R. Wallace, Plaintiff, ) Circuit Court.
vs. y Petition.
Thomas James, Defendant. )
The plaintiff, A. R. Wallace, states that the defendant, Thomas James, resides
In county and that he falsely, maliciously and without probable cause did on
the of 189 — , in the county of , State of Kentucky, and before S. Bruce,
county judge of said county, subscribe and swear to an affidavit charging that this
plaintiff had committed the crime of larceny in the said county by stealing and
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CIVIL CODE FORMS — PETITIONS. 601
carrying away without the permission of the owner, property owned by one Abe
Jones and of the value of dollars, and thereupon said judge issued a warrant
for the arrest of this plaintiff and under it he was arrested and brought before said
Judge for trial, who, after hearing the evidence, dismissed the prosecution and dis-
charged from custody this plaintiflf. He says he was damaged in the sum of
dollars by the said wrongful acts of defendant.
Wherefore he prays judgment against defendant for dollars and for all
proper relief. J. R., Atty. for Plff.
Assanlt and Battery.
[Venue of action, sec. 74, and see note 4, page 69.]
John Smith, Plaintiff, ) Cibcuit Coubt.
vs. > Petition.
James Jones, Defendant. )
The plaintiff, John Smith, states that on 189 — , the defendant, James Jones,
in county, Kentucky, he being now a resident of said county, unlawfully
assaulted, beat and bruised him about the head and body with his fists [or state
weapon used] to his damage in the sum of dollars. [If plaintiff desires to
recover special damages for time lost, doctors' bills and other expense, the petition
should state value of time, amount paid out and other expenses claimed.]
Wherefore he prays judgment for dollars and all proper relief.
J. R., Atty. for Plff.
Surety A|:ain8t Principal.
[See note 58, page 73; judgment may be obtained by motion, sec. 451.]
John Smith, Plaintiff, ) Circuit Court.
V8. [• Petition.
James Jones, Defendant. )
The plaintiff, John Smith, states that he was the surety of the defendant, James
Jones, in a note executed to David Adams, 189 — , for dollars, and due in
months from date ; that on 189 — , he paid to said Adams, in discharge of said
note and interest due thereon, ——dollars, and defendant refuses to pay him any
part thereof.
Wherefore he prays judgment for dollars, with — per cent interest thereon
from 189 -, and all proi>er relief. J. R., Atty. for Plff.
Trespass to Realty.
[See note 63, page 74.]
John Smith, Plaintiff, ) Circuit Court.
vs. > Petition.
James Jones, Defendant. )
The plaintiff, John Smith, states that on , 189 — , he was the owner of and
in possession of a tract of land in county, Kentucky, adjoining the lands of
David Adams, William Sams and Tom Davis, and on said day the defendant, James
Jones, unlawfully and forcibly entered upon said land, and cut and destroyed apple
trees thereon to the damage of plaintiff in the sum of dollars
Wherefore plaintiff prays judgment for dollars and all proper relief.
J. R., Atty. for Plff.
Recovery off Land.
[See sec. 125, and notes thereto.]
John Smith, Plaintiff, ) Circuit Court.
vs. > Petition.
James Jones, Defendant. )
The plaintiff, John Smith, states that he is the owner of and entitled to the pos-
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602 CIVIL CODB FORMS — PETITIONS.
session of a tract of land in county, Kentucl<y, situated on the waters of Dren-
non creek, and bounded as follows, to-wit : Beginning at a stone in the center of said
creek, corner to James Adams, and thence east poles to a stone, thence south
poles to a stone, thence west poles to a stone, thence north poles to the
beginning, containing acres, and the defendant now holds, and has for the last
year wrongfully held, said land, and kept plaintiff out of possession thereof to his
damage in the sum of dollars.
Wherefore plaintiff prays judgment for the recovery of said land and
dollars damages and all proper relief. J. R., Atty. for Plff.
Recovery of Personal Property.
[See sec. 181, and form of affidavit for immediate delivery, page 630.]
John Smith, Plaintiff. ) Cibcuit Coukt.
vs. > Petition.
James Jones, Defendant. )
The plaintiff, John Smith, states that he is the owner and entitled to the posses-
sion of [here describe property] and of the value of dollars; that defendant
has possession of said , and has wrongfully detained days, to plaintiff*s dam-
age in the sum of dollars.
Wherefore plaintiff prays judgment for the recovery of said and damages
for detention and all proper relief. J. R., Atty. for Plff.
Railroad Co.— For Killiog Cattle.
[If the property has not been appraised, or the plaintiff does not desire to claim
the twenty-five per cent damages, that part of the petition included in brackets can
be omitted ; county in which action must be brought, sec. 73 ; for provisions con-
cerning appraisement, see Ky. Stat., sees. 810, 811, 813 and notes thereto.]
Cibcuit Court.
Petition.
John Smith, Plaintiff,
vs.
The Louisville & Nashville Railroad
Company, Defendant.
The plaintiff, John Smith, states that the defendant, the Louisville & Nashville
Railroad Company, is a corporation created by the laws of Kentucky, and author-
ized to be sued by its corporate name, " The Louisville & Nashville Railroad Com-
pany;" that it operates a line of railroad running through county, Kentucky,
and on , 189 — , a horse, owned by plaintiff, of the value of dollars, strayed
on the track of defendant, in said county, and defendant, by its agents and
servants, so carelessly and negligently managed and operated its engine and cars that
the same ran over and killed said horse, to plaintiff's damage in the sum of
dollars.
[Plaintiff states that on , 189—, after having first notified in writing
the nearest station agent of defendant to the place where said horse was killed.
of his intention so to do, he applied to , a justice of the peace for county,
residing in the magisterial district in which said horse was killed, to appoint, and
said justice did appoint, three disinterested and discreet housekeepers of
county, who, after being duly sworn, examined said horse and fixed its value at
dollars, full particulars of which are set out in a report made by said appraisers,
returned to said justice, and now part of the records of his office. A copy of said
report is filed as part iiereof, marked **A." Defendant has failed to pay the amount
so assessed by said appraisers.]
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CIVIL CODE FORMS — PETITIONS. 608
Wlierefore plaintiff prays judgment for dollars [and twenty-five per cent
damages thereon] and all proper relief. J. R., Atty. for Plff.
Breach off Contract.
[See note 13, page 69, and note 52, page 12 ; and note requirement as to allegation
of performance cPf precedent condition.]
John Smith, Plaintiff, ) Circuit Court.
v8. y Petition.
James Jones, Defendant. )
The plaintiff, John Smith, states that on 180 — , he and the defendant,
James Jones, entered into a contract whereby defendant agreed to deliver to plaintiff,
at the railroad depot in , county, Kentucky, on or before , 189 — ,
bushels of corn, for which the plaintiff was to pay to defendant, as delivered,
cents per bushel ; that corn was worth at said place on , 189 — , cents per
bushel. He states that defendant has broken his contract, in that he failed to
deliver at said depot any part of said corn, and because of defendant's breach of
contract, as aforesaid, plaintiff has been damaged in the sum of dollars.
Wherefore he prays judgment for dollars and all proper relief.
J. R., Atty. for Plff.
Warranty.
[See 90 Ky. 473 ; 87 Ky. 160.]
John Smith, Plaintiff, 1 Circuit Court.
vs. [-Petition.
James John, Defendant. J
The plaintiff, John Smith, states that on , 189—, the defendant; James
Jones, sold and delivered to plaintiff* for the price of dollars, which plaintiff
then paid to defendant, a bay horse, which he then and there warranted to be sound
in every respect, when, in fact, said horse was then, and is now, unsound and
afflicted with a disease known as spavin, whereby plaintiff has sustained damages
in the sum of dollars.
Wherefore plaintiff prays judgment for dollars and all proper relief.
J. R., Atty. for Plff.
Fraud or Deceit
[See 4 Dana 300 ; 1 Dana 30 ; 1 Dana 373.]
John Smith, Plaintiff, ) Circuit Court
V8, > Petition.
James Jones, Defendant. )
The plaintiff, John Smith, states that on , 189 — , the defendant, James
Jones, offering to sell him a horse, fraudulently represented him to be a kind, gentle
buggy horse, and plaintiff, relying on said representation, bought said horse, and
paid defendant therefor two hundred dollars ; that at the time of said purchase the
horse was, as defendant well knew, wild and unmanageable, and would not and will
not work in a buggy, by reason whereof he Is worthless to plaintiff, and he has been
damaged in the sum of dollars.
Wherefore plaintiff prays judgment for dollars and all proper relief.
J. R., Atty. for Plff.
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604 CIVIL CODE FORMS — PBTITIONS.
As8i|:oee against Assifoor.
[See Ky. Stat, sees. 474, 475. and notes thereto, and note 5, page 69, of Code.]
John Smith, Plaintiff, ) Circuit Coubt.
v8, y Petition.
James Jones, Defendant. )
The plaintiff, John Smith, states that on the of 189 — , the defendant,
James Jones, by his written indorsement on the back thereof, assigned to him a
promissory note for dollars, executed to defendant by one Henry Williams, that
he paid to defendant for said note on the day of its assignment, the sum of
dollars. That he instituted suit on said note against said Williams on the of
189 — in the court and obtained judgment against him, and in due time an
execution issued on said Judgment directed to the of said county, that
being the county of Williams* residence, and said execution was on the of ,
189 — , returned by said officer to the office from whence it issued indorsed ** no prop-
erty found to make this execution or any part thereof." Copies of said note, judgment
and execution are filed as part hereof, marked **A." He says that defendant,
although requested so to do, has failed and refused to pay to him any part of the
amount he paid for the assignment of said note, and that he is entitled to recover
from defendant the amount he paid for said note, with interest thereon from the date
of payment.
Wherefore he prays judgment against defendant for dollars, with interest
thereon from the of , 189 — , until paid, and for all proper relief.
J. R., Atty. for Plff.
Attachment bond, on.
[See sec. 198 of Code and notes thereto, and notes 9-11, page 69.]
John Jones, Plaintiff, ) Circuit Court.
V8, V Petition.
Henry Smith and Joseph Chandler, Defendants. )
The plaintiff, John Jones, states that one Henry Sanders, in an action instituted
by him on the of , 189 — , against this plaintiff in the circuit court,
desiring to obtain an attachment against his property, procured the defendants,
Henry Smith and Joseph Chandler, to execute, and they did execute before the clerk
of said court, an attachment bond, conditioned that the said Sanders would pay to
plaintiff the damages not exceeding dollars, which he might sustain if the
attachment was wrongfully obtained. A copy of said bond, which was approved by
the said clerk, is filed as part hereof, marked " A"
Plaintiff states that upon the execution of said bond the said clerk issued an
attachment against the property of this plaintiff, and said attachment was, on the
of , 189 — , levied by the officer having it to execute upon the following
described property then owned by this plaintiff [here describe property], which was
taken possession of by said officer and retained by him until the of , 189—
[or, if it was sold under sec. 218, state facts].
He says that he employed an attorney to contest said attachment and agreed to
pay him for his services the sum of dollars, which was a reasonable fee ; that
he was deprived of the use and possession of said property for days and thereby
suffered dollars damage; that he expended in contesting said attachment the
following amounts [here state items and amounts], and was obliged to and did leave
his business and spend days in preparing his case and in attendance upon court
contesting said attachment ; that his services were reasonably worth during said
time dollars per day ; that he recovered as costs in the issue growing out of the
attachment the sum of dollars. He states that on the -•— of , 189 — , the
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CIVIL CODE FORMS — PETITIONS. 605
•court in which said action was pending, upon a trial thereof, rendered a final judg-
ment discharging said attachment, and said judgment is now in force. He flies as
part hereof a copy of said judgment, marlced '* B."
Plaintiff states that by reiison of the wrongful issual of said attachment lie was
damaged as aforesaid in the sum of dollars, and that the defendants have
broken the conditions of their bond in this, that they have failed to pay to him
said damages or any part thereof.
Wherefore plaintiff prays judgment against defendants for dollars for costs
and ail proper relief. J. R., Atty. for Piff.
[Although not necessary the plaintiff in the attachment suit frequently signs the
bond : in such cases the plaintiff in an action on the bond may or may not include
him as defendant ; if he is made defendant the above form can be changed to con-
form to the facts.]
lademnifying Bond, on.
[See sees. 641, 043 of CJode and notes thereto, and notes 9-11, page 69.]
John Smith, Plaintiff,
V8,
CiBcurr CouBT.
Petition.
Henry James and Robert Sewell,
Defendants.
The plaintiff, John Smith, states that an execution issued upon a judgment
rendered in the court in favor of John Jones, and against William Martin, and
that said execution has placed in the hands of , sheriff [or constable] of
county, to do execution thereof, that said sheriff [or constable] after levying [or
before, as the case may be] said execution upon the following property [here describe
property] and before proceeding further under said execution demanded of the said
John Jones a bond of indemnity, and thereupon the defendants, Henry James and
Robert Sewell, as sureties for Jones [or Jones with said James and Sewell as
sureties] executed a bond of indemnity to said officer conditioned among other
things that the said obligors would pay to any claimant of said property the damages
he might sustain in consequence of the seizure or sale of said property. Said bond
was approved by said officer and returned by him with the said execution to the
proper office, and copies of the execution and bond are flled as part hereof, marked
•*A."
Plaintiff states that upon tlie execution of said bond the officer proceeded to
and did sell said property, and plaintiff has been since and is now deprived of
the possession thereof. He states that when said property was seized and sold
he was the owner thereof, and its reasonable value at said time was dollars, and
he has been damaged in that sum by the seizure and sale of said property. He says
that the defendants have broken the conditions of their bond in this, that they have
failed to pay said damages or any part thereof. Wherefore plaintiff prays judgment
against defendants for dollars for his costs and all proper relief.
J. R., Atty. for Plff.
Guardian's Bond.
[See Ky. Stat., sec. 2017, and notes thereto ; Gode, sec. 67, and notes 9-11, page 69.]
William Hiatt, Plaintiff, ) Circuit Court.
vs. V Petition.
Abram Jones, and David Adams, Defendants. )
The pl/iintiff, William Hiatt, states that on the of , 189—, he was an in-
fant under the age of twenty-one years and a resiflent of county, Kentucky, and
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606 CIVIL CODE FORMS — PBTITIONS.
that on said clay the defendant, Abram Jones, was duly appointed as his guardian
by the county court of said county, and thereupon qualified as such guardian, and
executed in and before the judge of said court a bond with defendant, David Adams,
as his surety, conditioned that the said Jones would faithfully discbarge the trust
of guardian ; said bond was approved by the said judge, and is now of record in the
clerk's office of said court, and a copy thereof, together with the order appointing
defendant as guardian, is filed as part hereof, marked ** A."
Plaintiff states that upon the execution of said bond there came into the posses-
sion of said guardian, the sum of dollars [or if other pf^perty state it], the
property of this plaintiff, and defendant has since said time and now holds said
money [or property].
He says that on the — of he became twenty-one years of age and de-
manded a settlement with his guardian and the payment of the amount due to him,
but he says that defendant has broken the conditions of his bond in this, that he has
failed and refused to pay to plaintiff any part of the amount due him [except — if
an}' part has been paid here state it]. He says he is entitled to recover interest on
said amount at biennial rests from the time it came into his guardian's hands until
his arrival at age, and to legal interest on the amount then due from that time until
paid.
Wherefore he prays judgment against defendant for dollars, with interest
computed at biennial rests from the of , 189—, until the of , 180 — ,
and with legal interest from that date until paid, and for his costs and all proper
relief. J. R., Atty. for Plff.
Negligence off Coniinoii Carrier.
[See, as to venue of action. Code, sec. 73, and notes, and note 34 to sec. 90, and Ky.
Stat., sec. 6.]
CiBcurr Ck)URT.
Petition.
James Kane, Plaintiff,
vs.
The Louisville & Nashville Rail-
road CJompany, Defendant.
The plaintiff states that the defendant is a corporation created by the laws of
Kentucky and authorized to sue and be sued by its corporate name, "The Louisville
& Nashville Railroad Company; " that it was on the of , 189—, engaged
in operating and managing a line of railroad running from Lexington, Ky., to Louis-
ville, Ky., and through the county of , and in transporting for hire on said road
passengers and freight. That he resides in [or was injured in county].
He says that on said day and while he was riding as a passenger on tlje passenger
train of defendant going east, he was injured [here state character of injuries] and
said injuries were caused by the negligence and carelessness of defendant, its agents
and servants, in so negligently and carelessly operating and managing said train,
that it ran into or over [state nature of accident causing injury], thereby injuring
plaintiff as aforesaid to his damage in the sum of dollars.
[If plaintiff was an employe of defendant, the above form will answer, being
changed to suit the facts, and it should be av^;«red that the injury was caused by
the gross negligence and carelessness of the defendant, its agents and servants.]
[If plaintiff is the administrator of a person who w>is killed by the negligence or
carelessness of the defendant, the above form can be changed to suit the facts.]
Wherefore plaintiff prays judgment against defendant for dollars and all
proper relief. J. R., Atty. for Plff.
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CIVIL CODE FORMS — PETITIONS. 607
New Promise.
[See Ely. Stat., sec. 2514, and notes thereto, and notes 26, 37, page 71.]
John Jones, Plaintlflf, ) Circuit Court.
vs. V Petition.
James Williams, Defendant. )
The plaintiff, James Jones, states that in the year 1885 he sold and delivered to
the defendant, at his request [here state character of property], of the value of
dollars ; he files as part hereof an account showing the time when said were so
furnished and delivered and the character thereof and prices charged therefor, and
says that said prices are reasonable, and defendant was to pay for them in days
from their delivery [or he sold them to defendant upon his promise to pay therefor
upon delivery (or if at a specified time state it) the prices charged therefor in the
said account].
Said account has been due since the of , 189 — , and no part of it has
been paid, and plaintiff is entitled to interest on said account from the time when it
became due.
He says that on the of , 189 — , defendant promised to pay said account,
but has failed to do so.
Wherefore he prays Judgment against defendant for dollars, with interest
from the of , 189—, until paid, for costs and all proper relief.
J. R., Atty. for Pltf.
New ProBise oo Writteo OMigatioii.
[See Ky. Stat., sec. 2514, and notes thereto.]
James Jones, Plaintiff, 1 Circuit Court.
vs. V Petition.
John Williams, Defendant, j
The plaintiff, James Jones, states that the defendant, John Williams, by his
promissory note [or if other written obligation here describe it] dated , 189 — , and
executed and delivered to plaintiff, agreed to pay him months after said date
the sum of dollars, with interest thereon from until paid. Said note is
filed as part hereof, mari^ed **A/ 'and is due and unpaid. Plaintiff states that on the
of 189 — , defendant promised to pay the said note [or paid dollars
thereon, which is indorsed as a credit on the baclc of said note, or acknowledged
that said note was just and due], but has failed to pay any part thereof.
Wherefore plaintiff prays judgment for dollars, with interest from
until paid, and for all proper relief. J. R., Atty. for PIff.
BHl of Exchaflge.
[See Ky. Stat., sec. 483, and notes thereto ; and 7 Bush 474 ; 1 Bush 129.]
Bank of Newcastle, Plaintiff,
vs.
James Giles, Henry Smith and
John Jones, Defendants.
The plaintiff, the Bank of Newcastle, states that it is a corporation created
under the laws of Kentucky [or if the bank is a national bank stale that it was
organissed under and in accordance with the provisions of the national banking law
of the United States] and authorized to purchase and discount bills and notes, con-
tract and be contracted with, sue and be sued by its corporate name ** The Bank of
Newcastle."
Circuit Court.
Petition.
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608 CIVIL CODB FORMS — PETITIONS.
That on the of 180—, the defendant, James Giles, executed and deliv-
ered to the defendant, Henry Smith, his promissory note for dollars, whereby he
agreed to pay him said amount four months after said date with interest thereon from
until paid ; said note was made payable and negotiable at the [here state name of
State or national bank in this State at which note was made payable and negotiable]
and after being indorsed by the defendant, John Jones, it was before maturity dis-
counted by the said Jones to plaintiff, who is now the owner thereof.
Plaintiff states that on the day said note fell due it was presented during regu-
lar banking hours at the counter of the bank at which it was payable, and payment
thereof demanded and refused, and on said day said note was duly protested for non-
payment by , notary public, and notices of the protest were on said day delivered
by said notary (or sent to the address of each of them in the mail by him) to each
of the defendants, and each of the defendants received due notice of the non-pay-
ment of said note. The protest and copies of the notices are filed as part hereof,
marked ** A." Plaintiff says no part of said note has been paid. Wherefore it prays
Judgment against defendants for dollars, with interest from until paid; for
dollars, notary fees, and all proper relief .
J. R., Atty. fur Plff.
losnrance Policy.
[See Code, sec. 71 ; and note 52, sec. 90, as to necessity for averring compliance with
all precedent conditions upon which liability of company depends.]
William Smith, Plaintiff, ) Circuit Coubt.
V8. > Petition.
The Insurance Company, Defendant. )
The plaintiff, William Smith, states that the defendant, the Insurance Com-
pany, is a corporation created by the laws of [here give State under laws of which
company was organized], and authorized to sue and be sued, and do a general fire
insurance business under its corporate name aforesaid.
He states that on the of , 189 — , in consideration of dollars paid to
it by plaintiff, it issued and delivered to him a policy of insurance on the [here
describe property], whereby it agreed to insure said property against all loss or dam-
age by fire from the of , 189—, to the of , 189 — , to the amount of
dollars, and to pay to plaintiff any loss or damage that he might sustain
between said dates by injury or destruction of said property by fire. Plaintiff states
that on the — ^ — of , 189 — , said property was totally [or if partially state the
facts] destroyed by fire ; that at said time plaintiff was the sole owner of said prop-
erty [or if any other person owned an interest state facts, and state facts as to any
other insurance on property] ; that within days after said fire he prepared and
delivered to defendant proof of the loss of said property, as directed and required by
the contract of insurance, and said proofs were accepted by the defendant [or if
returned say so]. He states that he has [here state specifically and separately the
performance of each condition in the policy upon which the liability of the defend-
ant depends]. Plaintiff states that defendant has broken the conditions of its con-
tract in this, that it has failed and refused to pay to plaintiff the amount of said
insurance, or any part thereof, although the same has been due since the — day
of , 189 — , and plaintiff is entitled to interest from that date. Wherefore
plaintiff prays judgment against, defendant for dollars, with interest from the
day of , 189—, until paid, for costs and all proper relief.
J. R., Atty. for Plff.
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CIVIL CODE FORMS — PETITIONS. 609
Divorce.
[See sees. 76, 420 of Code and notes ; and Ky. Stat., sees. 2117-2136.]
John Smith, Plaintiff, ) Circuit Court.
v8. y Petition in Equity,
Mary Smith, Defendant. )
The plaintiff, John Smith, states that he and the defendant, Mary Smith, were
married in tliis State In the year 189 — , and they each now reside and have continu-
ously resided in county, in this State, for more than one year next before the
commencement of this action ; that the cause of divorce, hereinafter set out,
occurred in this State, and within five years next before the commencement of this
action.
He states that he and the defendant lived together as man and wife from their
marriage until , 180 — , at which time defendant, without any fault or like fault
on his part, abandoned his home, and refuses to and has not since said time lived
with him [or state any other grounds for divorce] ; that during the time they lived
together he always treated defendant in a kind and affectionate manner and pro-
vided comfortably for her support.
Wherefore he prays a divorce from the bonds of matrimony.
J. R., Atty. for Plff.
Divorce from Bed aod Board.
[See Ky. Stat., sec. 2121, and notes thereto, and sees. 76 and 420 of the Code and
notes.]
Mattie Davis, Plaintiff, ) Circuit Court.
v», [-Petition.
William Davis, Defendant. )
The plaintiff, Mattie Davis, states that she and the defendant, William Davis,
were lawfully married on the of , 189 — ; that they each now reside, and
have for more than one year last past resided continuously, in the State of Kentucky;
that she is now an actual resident of county [county where suit is instituted];
that the cause of divorce, hereinafter set out, occurred and existed in this State,
and within five 3'ear8 next before the commencement of this action ; that she and
defendant lived together as man and wife from the time of their marriage as afore-
said until the of , 189 — , when the defendant, without any fault or like fault
on the part of this plaintiff [here state conduct complained of]. That on account of
defendant's said conduct she was compelled to and did leave him [or he abandoned
her, as the case may be], and since said time defendant has made no provision for.
her support [or the support of their children — if any, name them and give their
ages]; that she has no income, and no estate or means of maintaining herself [and
her children who are in her custody]; that defendant is possessed of ample estate.
Wherefore she prays for a divorce from bed and board [and that she be awarded
the custody of said children], for maintenance for herself and children pending this
action, for alimony and all proper relief. J. R., Atty. for Plff.
Alimony.
[ See sec. 424, and notes thereto, and sec. 76.]
Mattie Davis, Plaintiff, ) Circuit Court.
V8. V Petition in Equity.
William Davis, Defendant. )
The plaintiff, Mattie Davis, states that she is an actual resident of county,
Kentucky, that on the of , 189—, she and the defendant were lawfully mar-
ried and lived together as man and wife from that time until the of , 189 — ,
m
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610 CIVIL CODE FOBMS — PETITIONS.
when the defendant, without any fault upon the part of plaintiff or any cause for so
doing, abandoned her and has since refused to live with or make any provision for
her support. She states that the defendant is possessed of ample means and that
she has no estate or income.
Wherefore she prays that alimony be allowed her, and for maintenance pending
this action. J. R., Atty. for PIff.
Upoo Returo of ** No Property.**
[See sees. 70, 439, and notes thereto.]
John Smith, Plaintiff, ) Circuit Court.
v8. y Petition in Equity.
James Jones, Defendant. )
The plaintiff, John Smith, states that in , 189 — , he recovered a judgment in
the circuit court for county against the defendant, James Jones, for
dollars, with per cent interest thereon from , 189 — , and dollars costs :
that on , 189 — , he had issued from the clerk's office of said court an execu-
tion on said judgment for the amount thereof ; said execution was directed to the
sheriff of county, made returnable on , 189 — , and on , 189 — , was place<l
in the hands of , then sheriff of county, to do execution thereof. On .
189 — , said sheriff returned said execution to the office from whence it issued, in-
dorsed, ** No property found, , S. — C." A copy of said execution and officers
return is died as part hereof. No part of said judgment has been paid.
Wherefore plaintiff prays for a general order of attachment against defendant's
property; that defendant be required to answer and discover any money, cboses in
action, legal or equitable interests, or other property owned by or in which he has
any interest, and that so much of any property discovered by defendant as may be
necessary be subjected to the payment of plaintiff's judgment and costs of this
action ; he prays for all proper relief. J. R., Atty. for Plff.
Mortfai:e Lieo — ^To Enforce.
[ See sees. 693, 094, and notes the ret >.]
John Smith, Plaintiff, ) Circuit Court.
v8. y Petition In Equity.
James Jones and Mary Jones, Defendants. )
The plaintiff, John Smith, states that the defendant, James Jones, by his promis-
sory note, dated , 189 — , and executed and delivered to plaintiff, agreed to pay
him one year thereafter dollars, with per cent interest thereon from
until paid. No part of said note has been paid. He states that at the time
said note was executed, and to secure its payment, the defendant and his wife
defendant, Mary Jones, executed to him a mortgage on a tract of land, In
county, Kentucky, on the waters of Drennon creek, bounded as follows : Beginning
at a stone, thence east one hundred poles, thence south one hundred poles, thence
west one hundred poles, thence north one hundred poles to the beginning, contain-
ing sixty-three acres. Said mortgage was duly signed and acknowledged by defend-
ants, recorded in the proper office, and a copy thereof, together with said note, is
filed as part hereof. Plaintiff states that he has, by virtue of said mortgage, a lien
on said land to secure the payment of said note ; that there are no other Hens on it
known to him [if there are other liens on property, state the facts and make holders
of liens parties defendant], and it can not be divided without materially impairing
its value [or if it can be divided without impairing its value, state the fact].
Wherefore plaintiff prays judgment against defendant, James Jones» for his
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CIVIJi CODE FORMS — PBTITfO^S. 6J1
debt» interest and costs, that said land be sold [of, if it is susceptible of division,
a sufficiency tliereof to satisfy his debt], and a sufficiency of the proceeds of the
sale to satisfy said judgment be applied to that purpose, and for all proper relief.
J. R., Atty. for Pltf.
Decedeot's EsUte— To Settle.
[See sees. 65, and 428 to 438, and notes thereto.]
John Smith, Administrator of James
Jones, Plaintiff,
Circuit Court.
Petition in Equity.
Mary Jones, Wm. Jones, Richard Thomas
and Harvey Black, Defendants.
The plaintiff, John Smith, states that on , 189—, James Jones, then a resi-
dent of county, Kentucky, died intestate, and plaintiff was appointed administra-
tor of his estate by the County Court of said county, at its term, 189—, and
thereupon qualified, and is now acting as such administrator. Copies of the orders
of said court showing his appointment and qualification are filed as part hereof,
marked **A." He states that said decedent left surviving him as his only heirs at
law the defendants. Mary Jones, his widow, and Wm. Jones, his only child, who is
under fourteen years of age. The decedent owed, at his death, debts amounting to
one thousand dollars, all now due and unpaid, and left no personal estate, except
what was set apart to his widow by the appraisers of his estate [or if he
left more state what disposition was made of it]. A copy of the inventory
and allotment to the widow is filed as part hereof, marked *' B." The defend-
ants, Richard Thomas and Harvey Black, are the only creditors of the decedent
known to plaintiff, and have claims against his estate amounting to one thousand
dollars. Decedent died seized in fee-simple of a tract of land in county,
Kentucky, bounded as follows : Beginning at a stone corner to Davis, thence east one
hundred poles, thence south one hundred poles, thence west one hundred poles,
thence north one hundred poles, containing sixty-three acres. The deed conveying
said land to decedent is filed as part hereof, marked **C." He owned no other real
property known to plaintiff; this land is worth about two thousand dollars, and it
will be necessary to sell a sufficiency of it to pay the debts of decedent, the funeral
expenses and costs of administration. [If the defendant, Mary Jones, is entitled to a
homestead in said land, state facts.]
Wherefore plaintiff prays that this action be referred to the commissioner to
ascertain and report the amount of debts against the estate, and to settle plaintiff's
accounts as administrator and make proper allowance to the administrator and his
attorney, and that a sufficiency of said land, after setting apart a homestead [If
homestead is to be allotted], be sold to pay the debts of decedent and costs. He prays
for all proper relief. J. R., Atty. for Plff.
Praoduleflt Conveyaoce — ^To Set Aside.
[See Ky. SUt., sees. 1900, 1007. and notes tixereto ; 80 Ky. 000; 80 Ky. 212; 79 Ky.
241.]
John Smith, Plaintiff, ] Circuit Coukt.
James ^onTs and Henry All?n, Defend- [ ^^^^^^^ ^" ^"^^y*
ants.
The plaintiff, John Smith, states that in , 189.—, he recovered a judgment
in the circuit court for county against the defendant, James Jones, for — rr-
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612 CIVIL CODE FORMS — PETITIONS.
dollars, with percent interest thereon from , 189, and dollars costs; that
on , 189 — , he had Issued from the clerk's office of said court an execution
on said judgment for the amount thereof. Said execution was directed to the sheriff
of county, made returnable on , 189 — , and on , 189 — , was placed in
the hands of , then sheriff of county, to do execution thereof, and was by
him returned on 1, 189—, to the office from whence it issued, indorsed, *' no
property found, , S. — C." A copy of said execution and officer's return is filed
as part hereof, marked ** A." No part of said judgment is paid.
Plaintiff states that by deed, dated , 189 — , the defendant, Jones, for the
pretended consideration of one thousand dollars, conveyed to his co-defendant, Henry
Allen, a tract of land in county, Kentucky, on the waters of Drennon creek,
and bounded as follows: Beginning at a stone, thence east one hundred poles, thence
south one hundred poles, thence west one hundred poles, thence north one hundred
poles to the beginning, containing sixty-three acres. Said deed is on record in the
proper office, and a copy is filed as part hereof, marked **A." Plaintiff states that
said conveyance was made without valuable consideration, and for the purpose of
cheating and defrauding the creditors of said Jones and this plaintiff, and there are
no liens [if there are other liens on land, state facts and make holders of liens par-
ties defendant] on said land known to this plaintiff, and it can not be [or can be,
as the case may be] divided without impairing its value.
Wherefore plaintiff pra^'S that said conveyance be canceled and held for naught,
and that said land [or if it is divisible — so much as may be necessary] be sold, and
so much of the proceeds thereof as may be necessary for that purpose be applied to
the payment of his judgment and costs of this action, and for all proper relief.
J. R., Atty. for Plff.
To Sell Land to Pay Lien Notes.
[See sees. 692-694, and notes thereto.]
John Smith, Plaintiff, ) Circuit CJourt.
V8. [■ Petition in Equity.
James Jones and Henry Allen, Defendants. )
The plaintiff, John Smith, states that on , 189 — , he sold and by deed,
which was accepted and is now on record in the proper office, conveyed to the
defendant, James Jones, a tract of land in county, Kentucky, on Flag creek,
and bounded as follows : Beginning at a stone corner, thence east one hundred poles,
thence south ofte hundred poles, thence west one hundred poles, thence north one
hundred poles, containing sixty-three acres. In consideration for said land defend-
ant, on , 189 — , executed and delivered to plaintiff two notes, whereby he agreed
to pay him dollars on , 189 — , and dollars on , 189 — , with six per
cent interest thereon from — ^, 189 — . A lien is retained in the said deed to
secure the payment of these notes. The note due , 189 — , plaintiff assigned to
defendant, Henry Allen, who now holds it. The other note, no part of which has
been paid, is held by plaintiff, and, together with a certified copy of the said deed,
is filed as part hereof. There are no other liens on said land known to plaintiff,
except those herein mentioned [or if there are other liens state them, and make
persons holding them defendants], and said land can be divided without materially
impairing its value [or can not be divided without materially impairing its value,
as the case may be].
Wherefore plaintiff prays judgment against defendant, James Jones, for his debt,
interest and costs ; that defendant Allen be required to set up his Hen, and that so
much of said land [or If it is not susceptible of division, ask that whole of it be
sold], as may be necessary for that purpose be sold to satisfy said lien, debts, and
for all proper relief. J. R., Atty. for Plff.
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CIVIL CODE FORMS — PETITIONS. 613
To Set Aside Sale Made to Prefer a Creditor.
[See Ky. Stat., sees. 1910-1917, and notes thereto.]
John Smith, Plaintiflf, i — Circuit Court.
vs. V Petition in EJquity.
James Jones and Henry Allen, Defendants. )
The plaintiff, John Smith, states that the defendant, James Jones, by his prom-
issory note, dated , 189—, and executed and delivered to plaintiff, agreed to pay
him, six months thereafter, dollars, witli six per cent interest thereon from date.
Said note is filed as part hereof. No part of said debt has been paid. He states
that defendant Jones is indebted toother persons in a large amount, and that in con-
templation of insolvency, and designing to prefer defendant Henry Allen to the
exclusion of his other creditors, defendant, when he did not have sufficient prop-
erty to pay his debts, did, on , 189—, and within six months next before the
institution of this action, sell and deliver to said Allen [here describe property]
of the value of dollars, to satisfy a debt due by said Jones to said Allen, and
created long before , 189 — .
Wherefore plaintiff prays that said sale be adjudged to operate as an assignment
of all the property of defendant Jones for the payment pro rata of his debts, and
that such orders be made as may be necessary to protect this plaintiff and the other
creditors of defendant, and for all other proper relief. J. R., Atty. for Plff.
DIvisioo of Land.
[See sec. 499 of Code, and notes thereto.]
Wm. Walker, Plaintiff, ) Circuit Court.
vs. y Petition in Equity.
Sam Walker and Tom Walker, Defendants. )
The plaintiff, Wm. Walker, states that he and the defendants, Sam Walker and
Tom Walker, own each an undivided [here state interest owned by each] interest in a
tract of land in county, bounded and described as follows [here insert boundary],
and containing acres. They received said land by [here state person from whom
land was received and how plaintiff and defendants became the owners of it]. He
flies as part hereof, marked *• A," copies of the evidences of the title to said land.
He says that no other persons own any interest in said land, and that he and the
defendants are each entitled to an undivided [state interest of each] thereof.
[If the land is subject to dower and it is desired to allot the dower as well as
divide the remainder of the land, the petition should state facts, and the owner of
dower interest should be a party plaintiff or defendant, and the petitition should
aver that after setting apart dower interest the other parties are entitled to the
remainder, according to their respective interests.]
Wherefore plaintiff prays that commissioners be appointed to divide said land
between plaintiff and defendant, allotting to each [here state interest each is%ntltled
to], according to quantity, quality and value [if dower is to be allotted the prayer
of the petition should be changed to conform to the facts and should ask that one-
third of the land, including the mansion house and the out-buildings, be set apart
to the widow, and the remainder divided between the other parties according to
their interests, stating them]. He prays that the costs of division be apportioned
between the parties hereto in proportion to their respective interests, and for all
proper relief. J. R., Atty. for Plff.
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614 CIVIL CODB FORMS — PETITIONS.
SALE OF REAL ESTATE OP PERSONS UNDER DISABILITY.
Qnardian against Ward for Maiofeoance and EdocaUoa.
[See Code, sees. 489, 402, nnd notes. As to service of summons, see sec. 52; as to
appointment of guardian ad iiiem^ see sec. 38 ; and depositions should be taken
showing necessity for sale.]
James Shuck, guardian of Mattie 1 Circuit Court.
Shuck, Plalntlflf, ,>^^j^j^„ .^ E^^j^y^
Mattie Shuck, Defendant.
The plaintiff, James Shuck, states that on the of , 189 — , he was, by
an order of the county court of county, appointed as guardian for the defendant,
Mattie Shuck, and thereupon qualified and is now acting as such guardian. He
files as part hereof, marked ** A," the orders of said court showing his appointment
and qualification. He says that his ward is years of age and unable, on account
of her youth [or bad health, or physical condition, or mental condition, as the case
may be], to perform any kind of labor or earn a living, in whole or in part; that his
ward has no income except as hereinafter stated, and owns no estate of any kind,
present or contingent, in reversion or remainder, except the following described
real property situated in the county of [here describe it] ; that his ward received
said property from [here state from whom and how ward became owner of property],
and he files as part hereof copies of the evidences of the title to said property,
markr-d "A."
He states that the income derived annually from said property is only
dollars, and is totally inadequate to maintain or educate his ward, and it is necessary
for her education and maintenance that said property be sold and the proceeds
applied thereto.
Wherefore plaintiff prays that the court order a sale of said laud for the pur-
poses herein set out, and for all proper relief. J. R., Att}'. for Plff.
Sale to Pay Debts of Ancestor.
[See Code, sec. 489, and notes, and note 12 to sec. 437, and Ky. Stat., sees. 2084-2089
and notes ; as to service of summons, see sec. 52 ; as to appointment of guardian
ad litem, see sec. 38.]
James Jones, Plaintiff, ) Circuit Court.
V8. V Petition in Equity.
Fannie Sams and James Sams, Defendants*. )
Th^ plaintiff, James Jones, states that on the of , 189 — , Richard Sams,
the father of defendants, Fannie Sams and James Sams, by his promissory note [or
if the indebtedness arose in any other way state facts] executed and delivered to
him, agreed to pay him months after said date the sum of dollars with
interest thereon from until paid ; said note is filed as part hereof, marked ** A/'
and is due and unpaid.
He states that said Sams died intestate [or if he died testate state fact], and
left surviving him as his only heirs at law the defendants, Fannie Sams and James
Sams, his children ; that no administration was ever granted or applied for on his
estate [or if administration was granted, or decedent died testate and an executor was
appointed state the facts, showing why debt was not paid by him, and make the
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CIVIL CODB FORMS — PETITIONS, 615
personal representative a party defendant to action] ; that he left no property [or if
he left property state in a general way how it was disposed of], except a tract of
land [here describe it] which descended to his children, these defendants, who are
now in possession thereof ; that said land is worth dollars ; that there are no
liens on it known to plaintiff [if other liens state them, and make holders parties
defendant] and it can be divided [or can not, as the case may be] without impair-
ing its value ; that the defendant Fannie is years old and the defendant James
is years old, and neither of them has any guardian, curator or committee
known to plaintiff [or if they have either state fact and make him a party defend-
ant].
Wherefore plaintiff prays that so much of said property [or all of it if it is not
susceptible of division] as may be necessary be subjected to the payment of his debt
and for all proper relief.
J. R., Atty. for Plff.
Reiavestment for.
[ See Code, sec. 480, 492, 403, and notes. As to service of summons on infant, see sec.
52 ; as to appoiniment of guardian ad litem, see sec. 38; and depositions sliould
be taken to show that ward would be benefited by sale and reinvestment.]
James Jones, guardian of Silas Corbin, Plaintiff, \ Circuit Court.
v8. > Petition in Equity.
Silas Corbin, Defendant. )
The plaintiff, James Jones, states that on the of , 180—, he was by an
order of the county court of county, appointed as guardian for the defendant,
Silas Corbin, and thereupon qualified and is now acting as such guardian ; he files
as part hereof, marked ** A," copies of the orders of said court, showing his appoint-
ment and qualification. He says that his ward is the owner of the following
described real property [here describe it] ; that said property is [here state fully the
facts showing why said property is not a good investment and how the ward will be
benefited by a sale of it], and the interest of his ward would be benefited by a sale
of said property and the investment of the proceeds in other property that would
realize an income [if it is a fact it may be alleged that the income is necessary to
maintain or educate the ward]. He says his ward received said property [here
insert how ward became owner of property] and he files as part hereof copies of the
evidences of his ward's title thereto.
Wherefore he prays that the court decree a sale of said property for reinvest-
ment under the direction of the court. He prays for all proper relief.
J. R., Atty. for Plff.
Sale of Indivisible Property of Joint Owners.
[See Code, sec. 400, and notes. If this action is brought by an adult against an
infant, the infant must be summoned as provided in sec. 52, and a guardian ad
litem appointed as provided in sec. 38, and depositions must be taken to prove
allegations of petition, but if infant has a guardian and he answers admitting
petition it will be sufficient without this.]
William Webb, Plaintiff, by his Guardian, Silas Webb, ) Circuit Court.
v8, > Petition in EJquity.
John Webb, Defendant. )
The plaintiff, William Webb, states that he is an infant, under the age of twenty-
one years, and that Silas Webb was, on the of , 180—, by an order of the county
court of county, appointed his guardian, and thereupon qualified and is now
acting as such guardian. Copies of the order of said court are filed herewith. He
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616 CIVIL CODE FORMS — DEMURRERS.
says that he and the defendant, John Webb, each own an undivided one-half of a
tract of land [or other real property] in county, Kentucky, bounded and de-
scribed as follows [here describe it]; that said land is in the possession of plaintiff
and defendant. They received said land from [here state manner in which property
was received] and he flies as part hereof copies of the title papers to said land marked
**A." He says that said property can not be divided without materially impairing
the value of plaintiff's interest therein.
Wherefore he prays that the court decree a sale of said property and for all
proper relief. J. R., Atty. for Plff.
DEMURRERS.
Qeaeral Demurrer to Petitioa.
[See sec. 93, and notes.]
John Smith, Plaintiff, ) Circuit CoxmT.
V8. > Demurrer.
James Jones, Defendant. )
The defendant demurs to the petition, because it does not state facts sufficient
to constitute a cause of action. J. R., Atty. for Deft.
General Demurrer to One Paragraph of Petition.
[See sec. 113-1.]
John Smith, Plaintiff, ) Circuit Court.
vs. y Demurrer.
James Jones, Defendant. )
The defendant demurs to the second paragraph of the petition, because it does
not state facts sufficient to support a cause of action.
J. R.. Atty. for Dft.
General Demurrer to Answer.
[See sec. 93, and notes.]
John Smith, Plaintiff, ) Circuit Court.
vs. y Demurrer.
James Jones, Defendant. )
The plaintiff demurs to the answer, because it does not state facts sufficient to
constitute a defense. J. R., Atty. for Plff.
Special Demurrer.
[See sec. 93, and notes.]
John Smith, Plaintiff, ) Circuit Court.
vs, > Special Demurrer.
James Jones, Defendant. )
The defendant demurs specially to the petition, because this court has no juris-
diction of the subject of action. J. R., Atty. for Plff.
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CIVIL CODE FORMS — ANSWERS, COUNTER-CLAIMS, SET-OFFS. 617
ANSWEIS, COUNTER-aAUKS, SET-OFFS.
[As to verification of, see sees. 116, 117 ; forms of, page 627.]
Plea of Paymeat
[This plea should be replied to.]
John Smith, Plaintiff, ) CiKCurr Court.
v8. I Answer.
James Jones, Defendant. )
The defendant states that on , 189—, he paid to plaintiff the full amount
of the debt and interest mentioned in petition.
R. R., Atty. forDft.
Answer and Set-Off.
[See sec. 96-2.]
John Smith, Plaintiff, ) CiBCurr Court.
tw. y Answer and Set-off.
James Jones, Defendant. )
The defendant states that the plaintiff is indebted to him in the sum of two
hundred dollars for money lent and furnished by defendant to plaintiff on ,
189—, upon the promise of plaintiff to repay said amount in six months, with six per
cent interest thereon from 189—. He has failed to pay any part thereof.
Wherefore defendant prays that his demand be set off against the debt sued on
and for judgment over against plaintiff, and for all proper relief.
R. R., Atty. for Dft.
Noa Est Factual.
[See notes 32, 33. page 80.]
John Smith, Plaintiff, | Circuit Court.
V8. V Answer.
James Jones, Defendant. )
The defendant denies that he executed or delivered the note mentioned in the
petition. Wherefore he prays to be dismissed with his costs.
R. R., Atty. for Dft.
Alteration of Note.
[See 13 Bush 197 ; 11 Bush 69 ; 10 Bush 503.]
John Smith, Plaintiff, ) Circuit Court.
vs. y Answer.
James Jones, Defendant. )
The defendant says that, after he executed to plaintiff the note mentioned in
petition, it was materially altered without the consent of defendant, by erasing
therein the word **one" before the word "hundred," and inserting in place thereof
the word **two.*'
Wherefore defendant prays to be dismissed with his costs.
R. R., Atty forDft.
Fraud.
[See note 22, page 80-]
John Smith, Plaintiff, ) Circuit CouRt.
V8. >• Answer and Counter-claim.
James Jones, Defendant. )
The defendant states that the note in petition mentioned was obtained from him
by the fraud, covin and misrepresentation of plaintiff.
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618 CIVIL COPB F0RM8 — ANSWERS, COUNTER-CLAIMS, 8ET-0FP8.
Whe<tefore he makes his answer a counter-claim and prays that said note be
adjudged void and canceled and for all proper relief.
R. K., Atty. for Dft.
Gaal«g.
John Smith, Plaintiflf, 1 Cikcuit Court.
V8. V Answer.
James Jones, Defendant. )
The defendant says the note sued on was given to the plaintiff for money thai
plaintiff won from defendant at a game of wager and chance called poker.
Wherefore he prays to be dismissed with his costs, and for all proper relief.
R. R., Atty. for Dft.
MisUke.
John Smith, Plaintiff, ) Circuit Court.
v8 y Answer.
James Jones, Defendant, j
The defendant sa^'s that the note sued on was executed for a balance of one
hundred dollars, due by defendant to plaintiff on an account ; that it was intended
by them to be for one hundred dollars, but by mistake was given for two hundred
dollars ; that defendant only owes on said note one hundred dollars with interest.
He prays for all proper relief. R. R., Atty. for Dft.
No CoosideratkNL
[See note 31, page 80.]
John Smith, Plaintiff, ] Circuit Court.
v8, V Answer.
James Jones, Defendant, j
The defendant says the note sued on was executed without any consideration.
Wherefore he prays to be dismissed with his costs.
R. R, Atty. for Dft.
Unsonndiiess of Mind.
John Smith, Plaintiff, ) Circuit Court.
v8. > Answer.
James Jones, Defendant. )
The defendant says that when it is alleged that he executed and delivered the
note sued on to plaintiff he was of unsound mind, and incapable of executing or
delivering said note.
Wherefore he prays to be dismissed with his costs.
R. R, Atty. for Dft.
Illegal Consideration.
John Smith, Plaintiff, ) Circuit Court.
vs. > Answer.
James Jones, Defendant. )
The defendant says that the note sued on was executed by him for one hun-
dred gallons of whisky, sold and delivered to him in this State by plaintiff; that at
the time plaintiff sold and delivered said whisky he did not have any license so to
do as required by the laws of this State.
Wherefore he prays to be dismissed with his costs.
R. R., Atty. for Dft
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CIVIL CODE FOBMS---AKSWERS) COUNTEE-CLAIMS, SST-0FF9. 619
Usury.
[See Ky. Stat., sec. 2219, und notes thereto.]
John Smith, Plaintiflf, ) Circuit Court.
V8, y Answer.
James Jones, Defendant. )
The defendant states that on , 189 — , he borrowed from plaintiff five hun-
dred dollars, and executed to him his note for said amount, bearing ten per cent
interest from date, that he paid to plaintiff the full amount of said note and six
per cent interest, that on , 189 — , he executed to plaintiff the note sued on in pay-
ment of the interest over six per cent per annum on said note, which excess
plaintiff exacted from him for the loan and forbearance of said five hundred dollars.
[Or if the note sued on contains in any way any usury, state fully the facts and the
court will expunge it.]
Wherefore he prays to be dismissed with his costs.
R. R., Atty. for Dft.
Answer and Counter-claim for Breach of Warranty.
[See note 1, page 81, and note 27, page 83.]
John Smith, Plaintiff, ) Circuit Court.
V8. > Answer and Counter-claim.
James Jones, Defendant. )
The defendant says the note sued on was executed and delivered by him to
plaintiff in payment of a stallion, that at the time he bought said stallion plaintiff
warranted him to be a sure foal getter. He says that said stallion is now, and was
when he bought him, impotent and can not and could not get any colts, and is worth-
less to defendant, and by reason of the im potency of said stallion, defendant has
been damaged in the sum of two hundred dollars.
Wherefore he pleads said two hundred dollars as a counter-claim against the
note sued on, and prays for all proper relief.
R. R., Atty. for Dft.
Plea of Payment to Plaintiffs Asslfnor.
[See notes 1-7, page 27.]
John Smith, Plaintiff, ) Circuit Court.
.J
M. J- Answer.
James Jones, Defendant.
The defendant states that on >, 189 — , and before he had any notice that
plaintiff was the owner of the note sued on, he paid the full amount thereof to said
Henry Allen.
Wherefore he prays to be dismissed with his costs.
R. R., Atty. for Dft.
Plea of Set-off Against Plaintiffs Assignor.
[See notes 1-7, page 27, and note 2, page 83.]
John Smith, Plaintiff, ^ Circuit Court.
vs. !• Answer and Set-off.
James Jones, Defendant. J
The defendant states that on , 189—, and before plaintiff became the owner
of the note sued on, Henry Allen, the assignor thereof, by his promissory note of
that date, executed and delivered to this defendant, agreed to pay him one day
thereafter one hundred dollars, with interest at six per cent from date until paid.
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620 CIVIL CODE FORMS — ANSWERS, COUNTER-CLAIMS, SET-OFPS.
Said note was due before note sued on was assi/?ned to plaintiff; it is filed as part
hereof, and no part of it is paid.
Wherefore defendant prays that the amount of said note and interest be set-off
against note sued on, and for all proper relief.
R. R., Atty. for Dft.
General Denial.
[See notes 23-35, page 80.]
John Smith, Plaintiff, ) Cibcuit Coubt.
V8. V Answer.
James Jones, Defendant, j
The defendant denies that he is indebted to the plaintiff in any sum fur goods or
merchandise ; denies that in the year , or any other time, plaintiff sold to defend-
ant, or that he at any time bought from or agreed to pay plaintiff for any goods or
merchandise. He prays to be dismissed with his costs.
R. R., Atty. for Dft.
Denial of Knowledge or Information.
[See sec. 113 and notes 13-19, page 79.]
John Smith, Plaintiff, ) Circuit Coukt.
v8, y Answer.
James Jones, Defendant. )
The defendant denies that he has sufficient Icnowledge or information to form a
belief as to whether plaintiff purctiased from Sam Jones the horse in petition men-
tioned. "Wherefore he prays to be dismissed with his costs.
R. R., Atty. for Dft.
Infancy.
[See note 27, page 80.]
John Smith, Plaintiff, ) Cmcuir Court.
V8. V Answer.
James Jones, Defendant. )
The defen<Jant says that at tlie time he executed and delivered the note sued
on [or at the time the goods and merchandise (or other property) mentioned in the
petition were sold and delivered to him] he was under twenty-one years of age.
He prays to be dismissed with his costs. R. R., Atty. for Dft.
Limitation.
[See note 29, page 80, and Ky. Stat., sec. 2525.]
John Smith, Plaintiff, 1 Circuit Court.
v8. > Answer.
James Jones, Defendant. J
The defendant states that plaintiff's cause of action accrued more than two
years before the institution of this action.
Wherefore defendant pleads and relies on the statute of limitation, in such cases
made and provided, as a bar to any recovery on account of the matters set up in the
petition. R. R., Atty. for Dft.
Accord and Satisfaction.
[See note 1, page 77.]
John Smith, Plaintiff, ) Circuit Court.
v8. > Answer.
James Jones, Defendant. )
The defendant says that on 189 — , he sold and delivered to plaintiff a
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CIVIL CODE FORMS — ANSWERS, COUNTBR-CLAIMS, SET-OFFS/ 621
, and plaintiff received said , in satisfaction of the debt mentioned in
petition.
Wherefore he prays to be dismissed with his costs. R. R., Atty. for Dft.
Plea of Son Assault Demesne.
[See note 17, page 82.]
Jolm Smith, Plaintiff, 1 Circuit Court.
. v8, > Answer.
James Jones, Defendant, j
The defendant states that at the time and place mentioned in the petition the
plaintiff assaulted him, and that, in his necessary self-defense, he assaulted, beat
and bruised plaintiff, doing him no more damage and using no more force than was
necessary for said defense, and that this is the assaulting, beating and bruising com-
plained of in petition.
He prays to be dismissed with his costs. R. R., Atty. for Dft.
Denial of Ownership.
John Smith, Plaintiff, ] Circuit Court.
vs. y Answer.
James Jones, Defendant, j
The defendant denies that on , 189—, or at the time of the alleged trespass
complained of, plaintiff was the owner, or in possession of any part of the land
described in the petition.
"Wherefore he prays to be dismissed with his costs. R. R., Atty. for Dft.
Plea of License.
John Smith, Plaintiff^ ) Circuit Court.
vs. [-Answer.
James Jones, Defendant. )
The defendant denies that he unlawfully or forcibly entered upon the land in
the petition described, or any part thereof, or cut or destroyed any apple or other troes
thereon, and says that on , 189 — , he entered on said land by consent of plaintiff,
and by his permission cut and destroyed apple trees thereon, and these are the acts
of which plaintiff complains in the petition. R. R., Atty for Dft.
Answer Claiming Part of Land.
[See sec. 125, and notes thereto.]
John Smith, Plaintiff, ) Circuit Court.
vs. V Answer.
James Jones, Defendant. )
The defendant, James Jones, states that he holds and claims the following part
of- the land described in the petition, viz. : Beginning at a corner to James Adams,
thence east one hundred poles, thence south one hundred poles, thence west one hun-
dred poles, thence north one hundred poles to the beginning, containing sixty-three
acres, and denies that plaintiff is the owner of, or entitled to the possession of, any
part thereof. He denies that he has ever held or kept plaintiff out of possession
of any part of the land mentioned in the petition, except as above stated.
Wherefore he prays to be dismissed with his costs. R. R., Atty for Dft.
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622 CIVIL CODE FORMS — REPLIB8.
Aiswer to Petltioa Claimiig Specific Property.
[See sec. 181, and notes.]
John Smith. Plaintiff, 1 Circdit Coukt.
vs. > Answer.
James Jones, Defendant, j
The defendant denies that plaintiff is the owner of, or entitled to the possession
of, the mentioned in the petition; denies that he has wrongfully detained said
for days, or any length of time.
Wherefore he prays to be dismissed with his costs.
R. R., Atty. for Plff.
Aoswer to Petition for Breacli of Warranty.
John Smith, Plaintiff, \ Circuit Court.
V8, V Answer.
James Jones, Defendant, j
The defendant denies that at the time, or before, plaintiff purchased the horse
mentioned in the petition, he warranted said horse sound in any respect. He denies
that said horse was, when he sold him, afflicted with a disease known as spavin or any
disease.
Wherefore he prays to be dismissed with his costs.
R. R., Atty. for Plff.
REPLIES.
[As to verification of, see sees. 116, 117 ; forms of, page627.]
To Plea of No Consideration.
i Reply.
John Smith, Plaintiff, ) Circuit Court.
vs.
James Jones, Defendant.
The plaintiff denies that the note in the petition mentioned was executed with-
out any consideration.
He prays as in his petition. J. R., Atty. for Plff.
To Answer Charging Fraud.
John Smith, Plaintiff, "| Circuit Court.
vs V Reply.
James Jones, Defendant, j
The plaintiff denies that the note sued on was obtained from defendant by
fraud, or covin, or misrepresentation .
He prays as in his petition. J. R., Atty. for Plff.
To Answer AUef ing Unsoundness of Mind.
John Smith, Plaintiff, \ Circuit Court.
vs. \ Reply.
James Jones, Defendant, j
The plaintiff denies that defendant, when he executed or delivered the note sued
on, was of unsound mind, or incapable of executing or delivering said note.
He prays as in his petition. J. R., Atty. for Plff.
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CIVIL OODB FORMS — KEPLXJSS. 628
Plea off Estoppel.
John Smith, Plaintiflf, ) w-^ CiBCurr Coujit.
v8. y Reply.
James Jones, Defendant. )
The plaintiff states that before he bought the note sued on that defendant
requested him to buy it, saying he had no claim or defense against it, and plnintiff
was thereby induced to and did buy said note, and pay therefor a valuable considera-
tion.
Wherefore he prays as in his petition. J. R., Atty. for PIff.
Denial off Kaowledge or lafformation.
John Smith, Plaintiff, i CiBCurr Court.
. v8. V Reply.
James Jones, Defendant. )
The plaintiff denies tliat he has any Icnowledge or information sufficient to form
a belief as to whether on , 189 — , or at any other time, defendant paid to Henry
Allen the amount of said note, or any part thereof.
He prays as in his petition. J. R., Atty. for Plff.
To Answer AUefing loffancy.
John Smith Plaintiff, ] Circuit Court.
v8, y Reply.
James Jones, Defendant. J
The plaintiff states that the goods and merchandise sold and delivered to
defendant, as alleged in the petition, were necessaries and suitable for his support.
He prays as in his petition, J. R., Atty. for Plff.
To Plea off Accord and Satisffaction.
John Smith, Plaintiff, ^ Circuit Court.
V8, y Reply.
James Jones, Defendant. J
The plaintiff denies that the horse in the answer mentioned was sold or deliv-
ered by defendant to plaintiff, or received by him in satisfaction of any part of the
debt sued on. He says that he bought from defendant said horse, and paid him
therefor one hundred dollars, the price agreed upon.
■ Wherefore he prays as in his petition. J. R., Atty. for Plff.
To Plea off Limitation.
John Smith, Plaintiff, ") Circuit Court.
vs. y Reply.
James Jones, Defendant, J
The plaintiff states that at the time the goods and mercliandlse mentioned m
the petition were sold and delivered to defendant both plaintiff and defendant were
merchants, buying and selling goods and merchandise, and said goods were sold to
defendant as a merchant.
He prays as in his petition. J. R., Atty. for Plff.
To Plea off Son Assanit De«esne.
John Smith, Plaintiff, ^ • Circuit Court.
v8. y Reply.
James Jones, Defendant. J
The plaintiff states that at the time of the assault complained of in petition de-
fendant, without permission, came into plaintiff's house and began to abuse him;
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624 CIVIL CODE FORMS — SUMMONS — WARNING ORDER,
when plaintiff requested defendant to go out of his house, and defendant refusing,
plaintiff laid his hands on him and gently ejected him, using no more force than was
necessary, and this is the assault and battery alleged in the answer.
J. R., Atty. for Plff.
REJOINDERS.
[Are necessary whenever the reply avers new matter, such as a counter-claim ; see
sec. 99.]
SUMMONS— WARNING ORDER.
SmnoMOs in Circuit Court in Ordinary Action.
[Sec. 40.] .
The Commonwealth of Kentucky to the Sheriff of County :
You are commanded to summon James Jones to answer, on the first day of the
next term of the Circuit Court, a petition filed against him in said
court by John Smith, and warn him that, upon his failure to answer, the petition
wiJl be taken for confessed, or he will be proceeded against for contempt; and you
will make due return of this summons on the first day of the next term of said
court.
Witness^ clerk of said courts this day of ^ 189 — .
— . c. — c. c.
Summons in Circuit Court in Equitable Action.
. . [The summons in equitable actions is the same as in ordinary actions, except
that the words ** in equity " should be inserted after the word ** petition."]
Summons in Justices' or Quarterly Courts.
[Sec. 701.]
The Commonwealth of Kentucky to any Constable of County:
You are commanded to summon James Jones to answer in my court, at its next
— — term, the claim of John Smith against him for [here state what claim is for]
amounting to dollars, which claim has been filed in my office, and warn him
that, upon his failure to answer, the claim will be taken for confessed, or he will be
proceeded against for contempt.
Given under my hand this day of , 189—. , J. P. C.
[The summons must be made returnable to the first court held by the Justice
Issuing it, that does not commence within five days from day it is issued. If the
amount sued for exceeds fifty dollars, a petition showing the nature of the claim
should be filed, and the summons made returnable to the first court that does not
commence within ten days from date of summons. The above form of summons will
answer if amount exceeds fifty dollars. See sees. 705, 706.]
[The above forms of summons will answer in quarterly courts. If the amount
sued for is over fifty dollars, the circuit court form can be used ; if under fifty
dollars the justice's form.]
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CIVIL CODE FORMS — BONDS. 625
Snnmons on Appeal to Circuit oa Quarterly Court
[Sec. 724.]
John Smith, Appellant, )
V8. v Quarterly Court [or Circuit Court.
James Jones, Appellee. )
The Commonwealih of Kentucky to the Sheriff of County :
You are commanded to summon James Jones to appear in the Quarterly-
Court [or Circuit Court] on the first day of its next term and answer the
appeal taken by John Smith from a judgment rendered by Harry James, a justice
of the peace for county [or by the Quarterly Court] in the action wherein
said Jones was plaintiff and said Smith defendant.
Witness my hand as judge of said court [or clerk of said court], this day
of , 189—. S. B., J. Q. C. [or C C. C]
Waroiog Order. Affidavit for — see page 628.
[Sees. 57-7, 59.]
John Smith, Plaintiff, \ Circuit Court.
v8. V Warning Order.
James Jones, Defendant. J
The defendant, James Jones, is warned to appear in this court on the first day
•f its next term and answer the petition of the plaintiff, John Smith ; and
Joseph Fears, a regular practicing attorney of this court, is appointed to correspond
with said Jones, and accepts said appointment.
Witness my hand, , 189—. S. J., C. C. C.
BONDS.
Bofld off Defendant Upoo Transfer of Ordinary Action to Equity Docket
[Sec. 14.]
John Smith, Plaintiff, ] Circuit Court.
V8, > Bond.
James Jones, Defendant, j
We agree to pay to the plaintiff, John Smith, any judgment which he may
obtain in this action.
Witness our hands this , 189 — . Jambs Jones.
Approved : Judge. Sam Kidd.
Bond of Owner of Lost Obligation.
[Sec. 7.]
John Smith, having executed his note to James Jones for one hundred dollars,
dated , 189 — , due six months afterdate and bearing six per cent interest from
date, which note has been lost, we undertake to indemnify said John Smith against
any loss which he may sustain by paying James Jones the amount of said note and
interest. Witness our hands this , 189 — . James Jones.
Sam Kidd.
(40)
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626 CIVIL CODE FORMS — ^BONDS.
Bead of Plalatiff to Defendant Constrnctively Sonunoned.
[Sec. 410.]
John Smith, Plaintilf, 1 Cracuir Court.
vs. y Bond.
James Jones, Defendant, j
We undertake that if the defendant, James Jones, shall procure a vacation or
modification of any judgment that may be rendered against him by this court at
its term, 189—, in favor of John Smith, that said John Smith shall restore to
said James Jones any money or property obtained under said judgment, restoration
of which shall be adjudged. Witness our hands this , 189 — . John Smith.
Sam Kido.
Refunding Bond from Distributee or Legatee.
[Sec. 435.]
John Smith, Plain tiflf^ ^ Circuit Court.
V8 > Bond.
James Jones, etc., Defendants. J
We undertake and are bound to the Commonwealth of Kentucky that Henry
Allen, who has received as distributee [or legatee] of James Jones, deceased, five
hundred dollars, will pay his proportion, not exceeding said amount, of any debt
which may appear against the estate of said decedent within five years from the
granting of administration on his estate. Witness our hands, , 189 — . ,
Attest: S. J., C. — C. C. Henrt Allen.
Sam Eidd.
Bond for Costs.
[Sec. 616.]
John Smith, Plaintiff, "j Circuit Court.
vs. y Bond for Costs.
James Jones, Defendant. J
We undertake that the plaintiff, John Smith, shall pay to the defendant, James
Jones, and to the officers of the court, all cost which may accrue to them in this
action, either in the Circuit Court or any other court to which it ma}' be car-
ried. Witness our hands, ,189 — . John Smith.
Attest: S. J., C. — C. C. Hbnrt Allen.
[This form will answer in justices', quarterly and other courts.]
Bond of Purchaser of Property Sold Under Order of Court
[Sec. 697.]
John Smith, Plaintiff, ^ Circuit Court.
vs. V Bond.
James Jones, Defendant. J
months after date we, Henry Allen, principal, and Sam Kidd, surety,
promise to pay to John Smith one hundred dollars, with — per cent interest thereon
from this date ; it being for the purchase price of , bought by said Henry Allen
at sale made under order of court in the above-styled cause.
Attest: Henry Allen.
Sam Kidd.
[This form will answer in sales made by commissioners, sheriffs or constables
under order of court by changing it to conform to the proceedings under which it Is
taken.]
For other bonds see Arrest and Bail; Claim and Delivery of Pergonal Property;
AUachmeyit; Attachment for Rent; It\junction; Execution; Distress Warrant; Appeals.
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CIVIL CODE FORMS — AFFIDAVITS. 627
AFHDAVITS.
VoMcatloi by Party.
[Sec. 551.]
The defendant, William Graves, says that [the statements of the foregoing
petition are true ; or] he believes the statements of the foregoing petition are true.
William Graves.
Subscribed and sworn to before me by William GraVfes, this , 18ft — .
8. J., C. — C. C.
Form of Verification by Agent or Attorney.
[Sec. 550-5.]
William Graves states that he is the attorney [or agent] of John Smith, who is
absent from county, and the statements of the foregoing answer are true [or,
true as he believes]. ^ William Grates.
Subscribed and sworn to before me by William Graves, this , 189 — .
S. J., C. — C. C.
Verification of Pleading by Agent or Attorney.
[Sec. 117-3-a.]
William Graves states that he is the attorney [or agent] of John Smith, who is
physically unable to attend before an officer [or who is mentally incapable of taking
an oath— or who is absent from county], and the statements of the foregoing
reply are true [or, true as he believes]. William Graves.
Subscribed and sworn to before me by William Graves, this , 189 — .
S. J., C. — C. C.
To Require Defendant to Execute Bond Before Transfer of Ordinary Action.
[Sec. 14.]
John Smith, Plaintiff, ) Circuit Court.
vs, V Affidavit.
James Jones, Defendant. )
The plaintiff, John Smith, states that he verily believes he will succeed in this
action, and that the collection of his c^aim after judgment will be endangered by
delay arising from such transfer. John Smith.
Subscribed and sworn to before me by John Smith, this 10, 189—.
S. J., C. — C. C.
To Have Guardian Ad Litem Appointed.
[Sec. 38, and see notes page 4U]
John Smith, Plaintiff, ) Circuit Court.
vs, j. Affidavit.
James Jones, etc., Defendants, j
The plaintiff, John Smith, states that the defendant, James Jones, is under
twenty-one years of age, and has no guardian, curator, nor committee residing in
this State, known to affiant. John Smith.
Subscribed and sworn to before me oy John Smith, this , 189 — .
[This affidavit may be made by the attorney for plaintiff.]
S. J., C. — C. C.
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628 CIVIL CODB FORMS — AFFIDAVITS.
To Have Warniag Order Made.
[Sec. 58, and notes thereto.]
John Smith, Plain tiff » ) CmcuiT Court.
va. V Affidavit.
James Jones, Defendant. )
The plaintiff, John Smijth, states that the defendant, James Jones, is a non-resi-
dent of this State, and, as affiant believes, is absent therefrom, and that defendant
resides in county, in the State of ; and , in said county and State, is the
name of the place wherein a post-office is kept nearest to the place where defendant
resides. ^ Johk Smith.
Subscribed and sworn to before by John Smith, this , 180 — .
S. J., e. — C. C.
To Have Wamiag Order Made.
[Sec. 58, and notes thereto.]
John Smith, Plaintiff, ) ' Cibcuit Court.
tw. y Affidavit.
James Jones, Defendant. J
The plaintiff, John Smith, states that the defendant, James Jones, has been ab-
sent from this State during the four months last past, and affiant has no knowledge
or information as to the country in which defendant resides or may be found, or as
to the name of the place wherein a post-office is kept nearest to the place where de-
fendant resides or may be found. John Smith.
Subscribed and sworn to before me by John Smith, this , 180 — .
S. J.. C. — C. 0.
[If this affidavit is made by an agent or attorney, it should state the afflant*s be-
lief that the plaintiff is ignorant of such of the facts as are unknown to the affiant.
Sees. 58-3; 550-2.]
To Require Party to Verify Personally His Pleadi^t*
[Sec. 117-4.]
John Smith, Plaintiff, ) Circuit Court.
V8. ["Affidavit.
James Jones, Defendant. )
The plaintiff. John Smith, states that he believes that the defendant, James
Jones, whose answer herein has been verified by said defendant's attorney, knows
that the statement in said answer that the note sued on is entitled to a credit of one
hundred dollars as of , 180—, is untrue ; and that his motion to require said
defendant to verify in person said answer is not made for delay. Johk SMi'ffi.
Subscribed and sworn to before me by John Smith, this , 180 — .
S.J.,C. — C. C.
On Note Against Decedent's BMsie.
[Sec. 437 ; and see sees. 3870-3872, Ky. Stat.]
The affiant, John Smith, states that the within note [or note hereto attached]
against the estate of James Jones is a just demand, and has never, to his knowledge
or belief, been paid, and that there is no offset or discount against the same, or any
usury embraced therein [if there is any offset or discount against note, or if it con-
tains any usury, state the facts.] John Smith.
Subscribed and sworn to before me by John Smith, this 180—.
Harry Allen, J. P. — 0.
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CIVIL OODB FORMS — ARREST AND BAIL. 629
Ofl Accouot Afiinst Decedent's Estate.
The owner of the account must make affidavit as on note, and in addition
thereto must have the affidavit of another person stating that the account has never,
as he believes, been paid, and giving the reasons whereby he is able to state that it
is just and unpaid. See Ey. Stat., sec. 3870; and notes to sec. 487.
That Officer May Require Surety to Malce Before Accepting Him ou Bond.
[Sec. 683.]
John Smith states that he is a resident of the State of Kentucky ; that he is
worth dollars beyond the amount of his debts, and has property in said State
subject to execution of the value of dollars. John Smith.
Subscribed and sworn to before me by John Smith, this , 189—
S. J.,C. — C. C.
For other affidavits, see Arrest and Bail; Claim and Delivery of Property ; Attach^
ment; Attachment for Rent,
ARREST AND BAIL
Affidavit
[Sec. 153.]
John Smith, Plaintiflf, ) Coukt.
v8. V Affidavit.
James Jones, Defendant. )
The plaintiff, John Smith, states that his claim in this action against the de-
fendant, James Jones, is for money due upon a note, executed to him by defendant;
that it is a just claim, and plaintiff believes that he ought to recover thereon the
sum of one hundred dollars, with six per cent interest from , 189 — , and that
defendant is about to depart from this State, and, with intent to defraud his credit-
ors, has concealed his property, or so much thereof, that the process of the court
after judgment can not be executed [or state any other ground mentioned in sec. 153,
sub. 4]. John Smith.
Subscribed and sworn to before me by John Smith, this , 189 — .
Hbnry Allen, J. P. — C.
Bond for tlie Plaintiff.
[Sec. 154.]
John Smith, Plaintiff, ] Cibcuit Court.
va. y Bond.
James Jones, Defendant, j
We undertake that the plaintiff, John Smith, shall pay to the defendant, James
Jones, the damages, not exceeding two hundred and fifty dollars, which he may sus-
tain by reason of his being arrested, if the order therefor in this action is wrong-
fully obtained John Smith.
, 189—. Sam Kidd.
Attest; S. J., C. — C. C.
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630 CIVIL CODE FORMS — CLAIM AND DELIVBRT OF PERSONAL PROPERTY.
Order off Arrest
[Sec. 155.]
John Smith, Plaintiflf^ ) Circuit Ck>iJBT.
V8 V Order of Arrest.
James Jones, Defendant. J
The Commonwealth of Kentucky to the Sheriff of County :
In an action pending in the Circuit Court between John Smith, plaintiff,
and James Jones, defendant, the plaintiff has filed an affidavit to obtain an order of
arrest against the defendant, in which it is specified that the plaintiff's claim
against the defendant in the action is one hundred dollars, with six per cent interest
from , 180 — .
You are therefore commanded to arrest the defendant, James Jones, and hold
him to bail in the sum of one hundred and forty dollars, and you will make return
of this order on the first day of the next term of the said court, together
with the bail bond, if any be taken by 3-ou.
Witness, 8. J., clerk of said court, this , 189 — .
8. J., c. — c. a
Bail Bond.
[Sec. 163.]
John Smith, Plaintiff, ) Circuit Court.
V8, y Bail Bond.
James Jones, Defendant. J
I undertake, as bail for the defendant, James Jones, that, if judgment shall be
rendered against him in this action, he will render himself amenable to the process
of the court thereupon. Henrt Allek.
, 189—.
Attest: J. W., S. — C
CLAIM AND DELIVERY OF PERSONAL PROPERTY.
Affidavit.
[Sec. 181.]
John Smith, Plaintiff, 1 Circuit Court.
v8. y Affidavit.
James Jones, Defendant. J
The plaintiff, John Smith, states that the horse claimed by him in this action is
of bay color, about fifteen hands high, ten years old, and has a white spot in his
forehead, and is worth one hundred dollars, and that he ought to recover fifty dollars
damages for the detention of him ; that plaintiff is the owner of and entitled to the
immediate possession of said horse, and that he is wrongfully detained by the
defendant, and was not taken for a tax or fine against the plaintiff, or under any
order or judgment of a court against him, nor seized under an execution distress
warrant or attachment against his property, and that plaintiff's cause of action
herein has accrued within one year prior to this date. John Smith.
Subscribed and sworn to before me by John Smith, this , 189 — .
8. J., C. — C. C.
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CIVIL CODE FORMS — CLAIM AND DBLIVBRY OP PERSONAL PROPERTY. 631
To Obtflio an Order off Delivery for Property Takes Uoder ao Execntioii.
[Sec. 181.]
John Smith, Plaintiff, ) CiBCUiT Court.
V8. y Affidavit.
James Jones, Defendant, j
The plaintiff, John Smith, states that the horse claimed by him in this action is
of bay color, about fifteen hands high, ten years old, and has a white spot in his
forehead, and is worth one hundred dollars, and he ought to recover fifty dollars,
damages for the detention of him ; that plaintiff is the owner of and entitled to the
immediate possession of said horse, that he is wrongfully detained by the defendant,
and was taken from him under an execution issued from the office of the clerk of
Circuit Court in favor of Henry Allen, and against plaintiff, and that said horse
was at the time he was so taken by statute exempt from such seizure ; that the
plaintiff*s cause of action herein has accrued within one year prior to this date.
John Smith.
Subscribed and sworn to before me by John Smith, this , 189 — .
S. J., C — C. C.
[ If the property is taken under an attachment or distress warrant this form will
answer by describing the kind of process under which the property was seized, as
provided in sec. 181-5, 6.]
Order of Delivery.
[Sec. 183.]
John Smith, Plaintiff, 1 Cmcurr Coukt.
V8. > Order of Delivery.
James Jones, Defendant. )
T%e Cbmmontoealth of Kentucky to the Sheriff of Chuniy :
In the action of John Smith, plaintiff, against James Jones, defendant, pending
in the Circuit Court, you are directed to take from the possession of the defend-
ant, James Jones, a bay horse, about fifteen hands high, ten years old, with a white
star in his forehead, and of the value of one hundred dollars, and deliver him to the
plaintiff, John Smith, and you will make due return of this order on the first day of
the next term of the Circuit Court.
Witness, S. J., clerk of said court, this , 189 — .
S. J., C. — C. C.
Bond of Plaintiff to Slieriff Before He Complies with tlie Order.
[Sec. 184.]
John Smith, Plaintiff, 'j Circuit Court.
va. > Bond.
James Jones, Defendant. J
We undertake to the defendant, James Jones, that the plaintiff, John Smith,
shall duly prosecute this action, and shall perform the judgment of the court therein,
by returning the horse ordered to be delivered to the plaintiff, if a return be ad-
judged, and by paying to the defendant, James Jones, such sums of money as may
be adjudged in this action against the plaintiff, not exceeding two hundred dollars
and the costs of the action. John Smith.
, 189—. Henry Allen.
Attest : J. W., S. — C.
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682 CIVIL CODE FORMS— CLAIM AND DBLIVBRY OF PERSONAL PROPERTY.
BoMi of Plaiatlff When the Property is taken Umkr u ExecHtkM.
[Sec. 185.]
John Smith, Plaintiff, ] Cikcuit Coubt.
va. V Bond.
James Jones, Defendant. I
We undertake that the plaintiff, John Smith, shall duly prosecute this action,
and shall perform the judgment of the court therein, by returning the horse ordered
to be delivered to the plaintiff, if a return be adjudged, and by paying, as may bo
directed by the court, to the defendant, James Jones, or to Henry Allen, the plaintiff.
in an execution from the Circuit Court against Sam Kidd, under which said
horse was taken by James Jones, such sums of money as may be adjudged in this
action against the plaintiff, not exceeding two hundred dollars and costs of this
action. John Smith.
, 189 — Joseph Davis.
Attest: J. W., S. — C.
[This form of bond is to be executed when the plaintiff's property is taken under
an execution not against him (sec. 185), and will answer if property is taken under
attachment cr distress warrant.]
Bond of Defendant to Retain Property.
[Sec. 188.]
John Smith, Plaintiff, ^ Circuit Coubt.
v8. y Bond.
James Jones, Defendant. J
We bind ourselves to the plaintiff, John Smith, in the sum of dollars, that
the defendant, James Jones, shall perform the judgment of the court in this action.
10, 189—. Hbnrt Allen.
Attest : J. W., S. — C. Jambs Jones.
[If the property was taken under an execution attachment or distress warrant
defendant can not retain it by giving bond. Sec. 187.]
Bond to Sheriff When Property Claimed by Person Other than Defendant
[Sec. 191.]
John Smith, Plaintiff, 1 —=— CiRCtrrr Court.
v8. y liond.
James Jones, Defendant, j
We undertake to indemnify , sheriff of county, against any damage
he may sustain on account of the claim of Henry Allen to the property mentioned
in the order of delivery, not exceeding dollars.
, 189—. John Smith.
Attest : J. W., S. — C. Sam Kidd.
Form of Appraisement Before Taking Bond.
[Sec. 189.]
The undersigned, disinterested housekeepers, having been selected and sworn by
J. W., S. — C, do appraise the property mentioned in the order of delivery, viz.:
one bay horse, at one hundred dollars. John Davib.
, 189—. Hbnrt Allbn.
Attest: J. W., S. — C. Sam Kidd.
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CIVIL CODE FORMS — ATTACHMSNT. 688
ATTACHMENT.
Affidavit for General Attachnent.
[Bee. 196.]
John Smith, Plaintiff, ) Circuit Court.
vs. V Affidavit.
James Jones, Defendant, j
The plaintiff, John Smith, states that the claim in this action against defendant,
James Jones, is for money due for [here state cause of action] that it is a just
claim, and he ought, as. he believes, to recover thereon dollars, with interest
from , 189 — , and that the defendant is about to sell, convey, or otherwise
dispose of his property, with the fraudulent intent to cheat and delay his creditors
[or state any other ground mentioned in sec. 194].
John Smith.
Subscribed and sworn to before me by John Smith, this , 189 — ,
a J., C. — C. C.
Bond of Plaintiff to Olrtain Attachnent
[Sec. 198.]
John Smith, Plaintiff, "I Cirouit Goubt.
V9. V Bond.
James Jones, Defendant. J
We undertake that the plaintiff, John Smith, shall pay to the defendant, James
Jones, the damages, not exceeding dollars, which he may sustain by reason of
the attachment in this action, if the order therefor be wrongfully obtained.
, 189—. John Smith
Attest : S. J., C. — C. C. Henry Allbn.
[If there is more than one defendant, the bond should be as follows : *' Pay to
the defendants, James Jones and Sam Eidd, the damages, not exceeding dollars,
which they, or either of them."]
Order of General Attachment
[Sec. 199.]
John Smith, Plaintiff, 1 CiRoniT OOITBT.
V8. > Order of Attachment.
James Jones, Defendant, j
The Commonwealth of Kentucky to the Sheriff of County \
You are commanded to attach and safely keep the property of the defendant,
James Jones, in your county, not exempt from execution, or so much thereof as will
satisfy the claim of the plaintiff in this .action, John Smith, for dollars ; and
dollars for the costs of the action ; and to summon the garnishees, If any, to
answer herein on the first day of the next term of the Circuit Court ; and
you will make due return of this order on that day.
Witness, S. J., clerk of said court, this , 189—.
s. J., 0. — 0. a
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634 CIVIL CODE FORMS — ATTACHMBNT.
Order of AtUchmeot from Jostice's or Qoirterly Court
[Sec. 199.]
John Smith, Plaintiff, )
vs. v Order of Attachment.
James Jones, Defendant. )
The Commonwealth of Kentucky to any Ooneiable of County :
You are commanded to attach and safely keep the personal property of the de-
fendant, James Jones, in your county, not exempt from execution, or so much
thereof as will satisfy the claim of the plaintiff in this action, John Smith, for
dollars ; and ten dollars for the costs of the action ; and to summon the garnishees,
if any, to answer herein on the first day of the next term of my court ; and
you will make due return of this order on that day.
Witness, Harry Allen, justice of the peace for county, this , 189 — .
H. A., J. P. — O.
Notice to Qaroishee to be Indorsed on Order of AtUchment
[Sec. 203-3.]
Henry Allen is notified that he is summoned to answer as a garnishee herein on
or before the first day of the next term of the Circuit Ourt.
,189-. S. J., 0. — CO.
[If the property to be attached is not a debt or demand due defendant, nor
property capable of manual delivery but is (to illustrate) certificates of stock or
bonds, the notice should specify the specific property to be attached.]
Notice to Garnishee to be Indorsed on Sonunons.
[Sec- 442.]
The object of this action is to attach in the hands of Henry Allen any money he
owes defendant, James Jones, not exceeding dollars.
, 189—. 8. J., a — 0. C.
[These notices to garnishees can be indorsed on attachment or summons from
Justices' courts.]
Bond of Indemnity to Officer Levying Attachment
[Sec. 211.]
John Smith, Plaintiff, 1 OiBcniT Coubt.
vs. V Bond.
James Jones, Defendant. )
We undertake to indemnify sheriff of county, against any damage he
may sustain by reason of the levy of the attachment in this action.
, 189—. John Smith
Attest : J. W., S. — C. Hbnbt Allen.
Bond of Plaintiff to a Joint Owner of Attached Property.
[Sec. 208.]
John Smith, Plaintiff, "j OlBoniT Ooubt.
vs. . . VBond.
James Jones, Defendant, j
We undertake that the plain tiff, -John Smith, shall pay to Henry Allen, a joint
owner with the defendant, James Jones, of a brown mare, levied on under an attach-
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CIVIL CODB FORMS — ATTACHMENT FOR RSNT. 635
ment in this action, the damages, not exceeding dollars, which said Allen
may sustain by the wrongful suing out of the order of attachment.
, 18d— . John Smith.
Attest : J. W., 8. — C. Sam Kidd.
Bond for Attached Property by Persoo io Possessioo.
[Sec. 214.]
John Smith, Plaintiff, \ Circuit Court.
V8, y Bond.
James Jones, Defendant. )
We bind ourselves to the plaintiff, John Smith, in the sum of dollars, that
the defendant, James Jones, shall perform the judgment of the court in this action,
or that the property attached in this action, or its value, shall be forthcoming and
subject to the order of the court. Henry Allen.
, 180—. John Roberts.
Attest: J. W., S. — C.
Porm of Appraisement Before Taking Bond from Person in Possession.
[Sec. 215.]
We, the undersigned disinterested housekeepers, selected and sworn by J. W.,
S. — C, do appraise the property levied on under this attachment, viz.:
one brown mare, at dollars. J. Swift.
, 189—. Tom Bibb.
Attest : J. W., S. — C. Robert Williams.
Bond of Defendant to Discharge Attacliment
[Sec. 221.]
John Smith, Plaintiff, \ Circuit Court.
v9, V Bond.
James Jones, Defendant, j
We bind ourselves to the plaintiff, John Smith, that the defendant, James Jones,
shall perform the judgment of the court in this action. James Jones,
, 189—. Henry Allen.
Attest:
ATTACHMENT FOR RENT.
Affidavit When Rent is Doe.
[See Ky. Stat., sees. 2302, 2303,]
The affiant, John Smith, states that James Jones is indebted to him in the sum
of dollars for the rent of his. Smith's, farm, in county, Kentucky, for the
year ending , 189 — ; that said rent was due on , 189 — , and no part
thereof has been paid, and that there are reasonable grounds for belief, and that he
believes, unless an attachment be issued, he will lose his said rent.
John Smith.
Subscribed and sworn to before me by John Smith, this , 189 — .
H. A., J. P.— C.
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636 CIVIL CODE FORMS — ^INJUNCTIOKS.
[This affidavit can be made by the agent or attorney of landlord, the affidavit
stating the fact that affiant is agent or attorney. Ey. Suit., sec. 2302.]
Affidavit Before Rent is D«e.
[See Ky. Stat., sees. 2302, 2303.]
The affiant, John Smith, states that on , 189> — , he rented his farm, in
county, Kentucky, to James Jones, for the year ending , 189 — ; that said Jones
agreed to pay him on , 189 — , as rent for said farm, dollars; that no
part of said rent has been paid, and that there are reasonable grounds for belief, and
that he believes, unless an attachment be issued he will lose his said rent.
John Smith.
Subscribed and sworn to before me by John Smith, this , 189 — .
H. A., J. P. — C.
[This affidavit can be made by the agent or attorney of the landlord, the affida-
vit stating the fact that the affiant is agent or attorney. See Ky. Stat., sec. 2302.]
Bood of Landlord to Obtain Attachment for Rent
[See Ky. Stat., sec. 2302.]
John Smith, Plaintiff, 1
V8. \ Bond.
James Jones, Defendant, j
We undertake that the plaintiff, John Smith, shall indemnify the defendant,
James Jones, against the damages which he may sustain by reason of the attach-
ment hereia, if it appear that the attachment has been vrrongfully obtained.
John Smith.
, 189—. Sam Kidd.
Attest: H. A., J P. — G
Order of Attachment
[The form of "Order of attachment from justices' or quarterly court," on page
634, will answer.]
INJUNCTIONS.
Bond to DIscharf e Levy Made Under an Execution.
[Sec. 278.]
John Smith, Plaintiff, "| CmcuiT Coukt.
V8, y Bond.
James Jones, Defendant, j
We undertake to satisfy the execution which the plaintiff seeks to enjoin in this
action to the extent to which the injunction maybe dissolved, not, exceeding the
sum of one hundred dollars, the value of the property released.
John Smith.
, 189 — . Hekry Allbk.
S. J., C. — C. C.
[For the purpose of ascertaining the value of the propertj' levied on, and to
release which the injunction is desired, the officer must have property appraised.
Sec. 278.]
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CIVIL CODE FORMS — INJUNCTIONS. 687
Form of Appraisement.
We, the undersigned, disinterested housekeepers, having been selected and
sworn by J. W., 8. — C, do appraise the property levied on under an execution
from the Circuit Court, in favor of James Jones, and against John Smith, viz.:
One bay horse at one hundred dollars. Sam Kidd.
, 189—, Henry Williams.
Attest: J. W., S. — C. Tom Davis.
Bond, if Party Does Not Desire to Discharse Levy.
[Sec. 278.]
John Smith, Plaintiff, ] Cibcuit Coubt.
va, y Bond.
James Jones, Defendant, j
We undertal<ce that the plaintiff, John Smith, upon the dissolution, in whole or
in part, of the injunction herein granted, shall, have the property levied on under
the execution enjoined, or its value, forthcoming; and subject to the order of the
court. John Smith.
. , 189—. Henry Allen.
Attest: S. J., C. — C. C.
[For the purpose of ascertaining the value of the property levied on it must be
appraised. See form of appraisement just preceding.]
Bond, if the Terms Are Not Prescribed by the Court or Jud^e Qrantinf.
[Sec. 278.]
John Smith, Plaintiff^ "j Circuit Court.
v8. V Bond.
James Jones, Defendant. J
We undertake that the plaintiff, John Smith, shall pay to the defendant, James
Jones, such damages as he may sustain if it be finally decided that the injunction
ought not to have been granted. John Smith.
1,189—. Henry Allen.
Attest: S. J., C. — C. C.
[In all other cases the court or judge granting the injunction must fix the amount
of the bond and prescribe its terms. Sec. 278, subsecs. 2, 3, 4.]
ORDER OP INJUNCTION.
[Sec. 281.]
John Smith, Plaintiff, 1 CiRcmT Court.
v8, > Order of Injunction.
James Jones, Defendant. )
The (Jommonwealth of Kentucky to James Jones :
You are hereby enjoined from [here state what the injunction is for in the lan-
guage of the order of court granting it, or as stated in petition if granted by the
elerk].
Witness, S. J., clerk of said court, this , 189—. S. J., C. — C. 0.
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638 CIVIL CODE FORMS — EXECUTIONS AND BONDS TAKEN UNDER.
EXECUTIONS AND BONDS THAT MAY BE TAKEN UNDER.
Execotion.
[Ky. Stat., sec. 1651.]
The Commonwealth of Kentucky to the Sheriff of Ckmnty — Greeting :
We command you that of the estate of , you cause to be made the sum of
dollars, which , late in our Circuit Court, hath recovered against
him for debt, with interest thereon from the of , 189 — , until paid ; also,
the sum of dollars, which to the said , in the same court, were adjudged
for his costs in that suit expended, whereof he is convicted as appears to us of
record, and that you have the said sums of money before our said court on the
of , 189 — , to render to the said his debt, interest and costs aforesaid,
and have then there this writ.
Witness, S. J., clerk of our said court, this , 189—.
S. J.. C. — C. 0.
Execntioo from Justices* or Quarteriy Courts.
The Oommonwealth of Kentucky to any Constable of County — Greeting ;
We command you that of the goods and chattels of you cause to be made
the sum of dollars, which late in our court hath recovered against him for
debt, with interest thereon from the of , 189 — , until paid ; also, the
sum of dollars, which to the said in the same court were adjudged for his
costs in that suit expended, whereof he is convicted as appears to us of record,
and that you have the said sums of money before our said court on the of ,
189 — , to render to the said his debt, interest and costs aforesaid, and have
then there this writ.
Witness my hand as a justice of the peace for said county, this the
of , 189—. H. A., J. P. — C.
Execution for Specific Property and Damages and Costs.
[Code, sec. 330, Ky. Stat., sec. 1665.]
The Commonwealth of Kentucky to the Sheriff of — — County — Greeting :
We command you to take from and deliver to a bay horse, about fif-
teen hands high, ten years old, with a star in his forehead [or the plaintiff may
have execution for the assessed value of the property and damages and costs].
and that of the estate of said you cause to be made the sum of dollars in
damages, which the said late in our circuit court recovered against the said
, and the further Sum of dollars, which to the said was adjudged
for his costs in that behalf expended, whereof the said - — is convicted, as appears
to us of record, and that you make known to the judge of our said court, on the
of 189—, how you have executed this writ.
Witness, 8. J., clerk of our said court, this the of — , 189 — .
8. J., C. — O. C.
[This form will answer in justices* or quarterly courts by changing It to suit
the court.* ~ -
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CIVIL CODE FORMS — EXECUTIONS AND BONDS TAKEN UNDER. 639
Execotiaii Against an Executor or Administrator to l»e Levied of Assets.
The Oommontoealih of Kentucky to the Sheriff' of County — Grebtino :
We command you that of the estate of James Jones, deceased, that has or may
come to the hands of Henry Allen, his executor {or administrator), to be adminis-
tered, you cause to be made the sum of — » dollars, which John Smith late in our
Circuit Court hath recovered against him for debt, with interest thereon from
the of , 189—, until paid ; also, the sum of dollars, which to the said
John Smith was adjudged for his costs in that behalf expended ; whereof the said
Henry Allen, executor (or administrator) aforesaid, is convict, as appears to us of
record, and that you have the said sums of money before our said court on the
of , 189 — , to render to the said John Smith the debt, interests and costs afore-
said, and have then and there this writ.
Witness, S. J., clerk of our said court, this , 189—.
S. J., C. — C. C.
[This form will answer in justices' or quarterly courts by changing it to suit
the court.]
CAPIAS AD SATISFACIENDUM.
[Code, sec. 168; Ky. Stat., sec. 1661.]
The Commonwealth of Kentucky to the Sheriff of County — Greeting :
We command you that you take James Jones, if he be found within your county,
and him safely keep, so that you have his body before our judge of our Circuit
Court, at the court-house in the town of , on the of , 189—, to satisfy
John Smith the sum of dollars, which the said John Smith hath recovered
against him for damages ; also the sum of dollars, which to the said John Smith,
in the same court, was adjudged for his costs, and that you have the same at the
said court-house, on the of , 189 — , to satisfy and pay the said John Smith
his damages and costs aforesaid, and have then and there this writ.
Witness, S. J., clerk of our said court, this the of , 189 — .
S.J., C. — C. C.
VENDITIONI EXPONAS.
. [Ky. Stat., sec. 1664.]
The Commonwealth of Kentucky to the Sheriff of County — Greeting .*
We command you that you expose to sale the estate of James Jones, to-wit :
, to the value of dollars, which, according to our command, you have
taken into your hands, and which remains in your hands unsold, as you have
certified to our Circuit Court, to satisfy John Smith the sum of dollars,
whereof in our said court he hath recovered execution against the said James Jones,
by virtue of a judgment in the said court, and that you have the same before the
judge of our said court on the of , 189 — , to render to the said John Smith
the sum aforesaid, and have then and there this writ.
Witness, , clerk of our said court, this the of , 189 — .
S. J., C. — C. C.
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640 CIVIL CODE FORMS — ^EXBCUTIOKS AND BONDS TAKEN UNDER.
Bond off lideaoity to Officer Before LtfjiMg mm Ezecotioo or Distress Warraot
[Sees. 641, 652.]
, sheriflf [or constable] of county, having required a bond of indemnity
before levying an execution [or distress warrant] issued on the of ,
189 — , from the Circuit Court [or the court of , Justice of the peace for
county, or the quarterly court], in favor of John Smith against Janaes
Jones, for the sum of dollars, upon a [here describe property], we undertake to
indemnify the said sheriff [or constable] against the damages which he may sustain
in consequence of the seizure or sale of the aforesaid property ; also to pay to any
claimant thereof the damages which he may sustain in consequence of such seizure
or sale, and to warrant to any purchaser of said property such estate or interest
therein as may be sold. John Smith.
- — , 189 — . Samuel Allen.
Attest : J. W., S. — C. [or C. — C]
Bond of lodemuity to Officer After Levy off an Execution or Distress Warraat.
[Sees. 641, 652.]
, sheriff [or constable] of county, having levied an execution [or distress
warrant], issued on the of , 189—, from the Circuit Court [or the
court of , a justice of the peace for county, or the quarterly court],
in favor of John Smith, against James Jones, for the sum of dollars, upon
a [here describe property], and having required a bond of indemnity before he
proceeds to sell said property, we undertake to indemnify the said sheriff [or con-
stable] against the damages which he may sustain in consequence of the seizure or
sale of the aforesaid property ; also, to pay to any claimant thereof the damages
which he may sustain in consequence of such seizure or sale, and to warrant to any
purchaser of said property such estate or interest therein as may be sold.
, 189—. John Smith.
Attest : J. W., S. — C. [or C. — C] Samuel Allen.
Bond of Clainant to Suspend Sale Under Execution or Distress Warrant
[Sees. 645, 652.]
The sheriff [or constable] of county ,[having levied an execution [or distress
warrant], issued on the of , 189 — , from the Circuit Court [or the
court of , a justice of the peace for county, or the quarterly
court], in favor of John Smith, against James Jones, for the sum of dollars,
upon [here describe property], that has been appraised at seventy-five dollars,
we undertake that, if it shall be adjudged that the said property [or any part of it]
is subject to the said execution [or distress warrant], Henry Allen, who claims it,
will pay to John Smith, the plaintiff in the execution [or who sued out the distress
warrant], the value of the property so subject, and ten per cent thereon, not ex-
ceeding the amount due on the execution [or distress warrant] and ten per cent
thereon. Henky Allen.
, 189—. Sam Kidd.
Attest : J. W., S. — C. [or C. — C]
Pomi of Appraisenent*
[Sec. 646.]
The undersigned, disinterested housekeepers, having been selected and sworn by
J. W., sheriff [or constable] of county, do appraise the mare levied on
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CIVIL CODE FORMS — EXECUTIONS AND BONDS TAKEN UNDER. 641
under an execution [or distress warrant] in favor of John Smith against James
Jones at dollars. Hbnry Roberts.
, 189—. Wm. Johnston.
Attest : J. W., 8. — C. [or C. — 0.] J. Graves.
Replevin Bond Before Execution.
[Ky. Stat., sec. 1667.1
John Smith, Plaintiff, ) Circuit Court.
vs, V Bond.
James Jones, Defendant. J
This day the defendant, James Jones, together with Sam Kidd, his surety, came
before me as clerk of the Circuit Court, and undertook that they would satisfy
and pay John Smith his judgment, amounting with interest and costs to one hun-
dred dollars, rendered in his favor against the said James Jones by this court, at its
term, 169 — , within three months, with legal interest on the whole amount
thereof from this date. Witness our hands, this , 189 — . Jambs Jones.
Attest : S. J., C. — C. C. Sam Kidd.
[This form will answer in justices*, quarterly and other courts by changing it to
suit court.]
Replevin Bond After Execntioo.
[Ky. Stat., sec. 1669.]
John Smith, Plaintiff, ) . Circuit Court.
V8, V Bond.
James Jones, Defendant, j
We, James Jones, principal, and Henry Allen, surety, de bind ourselves, three
months after the date hereof, to pay John Smith, the plaintiff In the execution, the
sum of dollars, to bear interest from this date, being the amount of an execu-
tion which issued from the clerk's oflBce of the circuit court of county, on ,
189 — , in favor of said John Smith for the sum of $ , debt, $ , interest, $ ,
costs of suit, $ , sheriff's half commission, amounting in the whole to the sum of
$— , aforesaid, against the said James Jones; and we the said James Jones and
Henry Allen, his surety, have hereby replevied the same. Witness our hands this
, 189—. James Jones.
Attest : J. W., S. — C. Henrt Allen.
[This form will answer for constables.]
Sale Bond for Property Sold Under Execotion or Distress Warrant
J"Ky. Stat., sec. 1674.]
John Smith, Plaintiff, ^ Circuit Court.
v8, y Bond.
James Jones, Defendant, j
We, Henry Allen, principal, and Sam Kidd, surety, do bind ourselves to pay to
John Smith, within three months from the date hereof, the sum of dollars,
with interest thereon from this date, being the purchase money for one bay horse,
which was this day sold by J. W., sheriff of county, in satisfaction of an
execution, which issued from the office of the clerk of the -^ Circuit Court, on the
of , 189—, in favor of the said John Smith, against James Jones, for
the sum of dollars, with interest and costs.
Given under our hands this , 189 — . Hbnrt Allen.
Attest : J. W., S. — C. Sam Kidd.
[This form will answer in sales made by constables and in sales made under dis-
tress warrants by changing it to suit process under which property is sold.]
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642 CIVIL CODE FORMS — DISTRESS WARRANTS, BONDS TAKEN UNDER.
DISTRESS WARRANTS AND BONDS TAKEN UNDER.
Distress Warrant.
[See Ky. Stat., sec. 2301.]
The CommontDealih of Kentucky to the Sheriff or any Constable of Chuniy — Greeting :
John Smith having made oath before me that James Jones is indebted to him in
the sum of one hundred dollars, for the rent of his (Smith's) farm in county,
Kentucky, for the year ending , 189 — , and that said rent was reserved in
money, was due , 189 — , and no part thereof has been paid.
You are therefore commanded to distrain so much of the personal estate of said
James Jones, found in your county, not exempt from execution, as will satisfy the
amount due as aforesaid, with interest thereon from , 180 — , and the costs of
this distress. And you will make due return of the manner in which you have exe-
cuted this warrant.
Witness my hand, as justice of the peace for county, this , 189 — .
[A written affidavit is required.] H. A., J. P. — C.
Reptevin Bond that Tenant may Qhre.
[Ky. Stat., sec. 2310.]
We, James Jones, principal, and Sam Kidd, surety, do bind ourselves to pny,
three months after the date hereof, to John Smith, the plaintiff in the distress war-
rant, the sum of dollars, to bear interest from this date, it being the amount of
a distress warrant issued by Harry Allen, a justice of the peace for county, on
, 189 — , in favor of said Smith, for the sum of dollars, debt ; dollars,
interest ; dollars, costs, and dollars, commission, amounting in the whole to
the sum of - — dollars aforesaid, against the said James Jones ; and we, the said
James Jones and Sam Kidd, have replevied the same. Witness our hands this
, 189—. James Jones.
Attest : J. W., S. — C. [or C. — C] 8am Kidd.
Bond of Indemnity to Officer Before Levying a Distress Warrant
[Sec. 652.]
The form of ** bond ef indemnity to officer before levying an execution or dis-
tress warrant," on page 640, will answer.
Bond of Indemnity to Officer After Levying a Distress Warrant
[Sec. 652.]
The form of " bond of indemnity to officer after levy of an execution or distress
warrant," on page 640, will answer.
Bond of Claimant to Suspend Sale Under a Distress Warrant
[Sec. 652.]
The form of ** bond of claimant to suspend sale under execution, or distress
warrant," on page 640, will answer by inserting "distress warrant" in place of
** execution " therein.
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CIVIL CODE FORMS — BUBPGBNA — WARRANT OF ARRB8T. 643
Bond of Tenant to Sospeod Sale Uader Distress Warrant.
[Sec. 653.]
We undertake that James Jones will pay to John Smith one hundred dollars,
that being the amount of rent specified in the distress warrant issued by H.
A., J. P. — C, on , 189 — , in favor of said Smith against said Jones, with
ten per cent thereon if the property distrained be of the value of dollars, or if
said property, to- wit, [here describe property], and which has been appraised at
dollars, as appears from the appraisement hereto annexed, be of less value, that
he will pay to said Smith the value thereof and ten per cent thereon.
10, 189—. Jambs Jones.
Attest : J. W., S. — C. [or C. — C] Sam Kidd.
Form of Appraisement
[ Sec. 653.]
The •* Form of Appraisement" on page 640 will answer.
Sale Bond of Pnrcliaser of Property Sold Under Distress.
Bond for sale of property sold under execution, page 641, will answer by chang-
ing ** execution" to distress warrant.
SUBPffiNA— WARRANT OP ARREST.
Snbpcena in Circuit Court
[Sec. 528.]
The Oommonwealih of Kentucky io the Sheriff of County :
You are commanded to summon Sam Eidd and B. F. Allen to appear before the
Circuit CJourt, on the of , 189 — , to testify on behalf of the plaintiff [or
defendant] in an action pending in said court, wherein John Smith is plaintifif and
James Jones is defendant.
Given under my hand this , 189—. S. J., C. — C. C.
[If the production of a writing is desired, describe it particularly in the subpoena,
and state the name of the witness who is to produce it. Sec. 528.]
Subpcena in Justices' Court
[Sec. 701.]
The Commonwealth of Kentucky to any Constable of County :
You are commanded to summon Sam Kidd and B. P. Allen to appear before me,
at my court in , Kentucky, on the of , 189—, to testi^ on behalf of
the plaintiff [or defendant] in an action pending in said court, wherein John Smith
is plaintiff and James Jones is defendant.
Given under my hand, this , 189—. H. A., J. P. — C.
Warrant of Arrest
[Sec. 537.]
The CommomoetUih of Kentucky to the Sheriff of County :
ITou are commanded to arrest Sam Kidd, and have him before the Circuit
Court, on the of , 189—, to testify on behalf of the plaintiff [or defend-
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644 CIVIL CODE FORMS — DBP08ITI0NS.
ant] in an action in said court, wherein John Smith is plaintiff and James Jones is
defendant, and to answer for his disobedience of the subpoena served on him, and
you will admit him to give bail for his appearance in the sum of dollars.
Given under my hand, this , 189—. 8. J., C. — C. C.
[This form will answer in justices* or quarterly courts by changing it to suit
court.]
Bail Boad to lie Indorsed oo Wimuit of Arrest
[Sec. 537.]
We acknowledge ourselves bound to the Ck)mmonwealth of Kentucky in the sum
of dollars as bail that Sam £[idd will appear at the time and place named in
the within warrant. Sam Kidd.
, 189—. HsNRT Allen.
Attest: J. W., S. — C.
DEPOSITIONS.
Form of Notice.
[Sec. 566.]
John Smith, Plaintiff, ^ Circuit Court.
V8. V Notice.
James Jones, Defendant, j
The defendant, James Jones, is notified that the plaintiff, John Smith, will, on
10, 189 — , at the law office of , in the town of , county, Kentucky,
take the depositions of sundry witnesses to be read as evidence in his behalf on the
trial of the above-styled case, and will continue the taking from day to day until
through. W. a, Atty. for Plff.
[If the depositions are taken out of the county in which the action is pending
the notice must give names of witnesses. Sec. 566.]
Sobpeiia — ^Warrant of Arrest
[Sec. 578.]
The subpoena for witnesses and warrant of arrest, if necessary, to be issued by
officer taking depositions, may be similar to forms under ** Subpoena — Warrant of
Arrest," on page 643.
Caption of Deposition.
[Sec. 582.]
The deposition of Ben Allen, taken on , 189 — , at the law office of ,
in the town of , to be read as evidence in an action between John Smith, plaint-
iff, and James Jones, defendant, pending in the Circuit Court.
Certificate of Examining Officer.
[Sec. 582.]
State of Kentucky County ;.
I, , examiner for county, certity that the foregoing deposition of Ben
Allen was taken before me at the time and place stated in the caption ; th%|t said
witness was duly sworn before giving it ; that it was written by me. in his presence.
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CIVIL CODE FORMS — FORM OF BILL OF EXCEPTIONS. 645
and read to and subscribed by him in my presence [or written and subscribed by
him in my presence]. [State whether either party was present, in person or by
agent or attorney, and if any, who was present.]
Given under my hand this , 189 — . , Examiner.
Cofflinissioo to Take Depositions on Interrof stories.
[Sec. 577.]
8TXT^p^KK»T.c«. ^^ ( Commission.
7b any officer authorized to take depositions in or out of this State :
You are hereby commissioned to take the depositions of Henry Allen and Sam
Eidd upon the interrogatories and cross-interrogatories hereto annexed.
Given under my hand, this , 189—. S. J., C C. C.
Form of Bill of Exceptions and Mes.
[See CJode, sec. 335, and notes thereto.]
It is not necessary to mention or include in the bill of exceptions any of the
pleadings that have been filed, or that have been offered to be filed and refused if
orders (as they should do) show offer and refusal and state that rejected pleading
is made a part of record ; nor is it necessary to embrace or mention in the bill the
motion or grounds for new trial, or any of the orders of the court, or rulings of the
court that appear on the order book. The object of the bill of exceptions is to show
the facts occurring during the trial that would not otherwise appear and that no rec-
ord is made of on the order book. It is usual to prepare the bill as follows :
Be it remembered that on the trial of this action the plaintiff testified for him-
self in substance as follows [here state substance of his testimony], and then plaintiff
introduced as a witness in his behalf John Jones, who testified in substance as
follows [here state substance of testimony — and so on with each witness for plaintiff].
The plaintiff having concluded his testimony, the defendant then testified for
himself [here state as with reference to plaintiff and his witnesses]. Upon the con-
clusion of defendant's evidence, the plaintiff was introduced in rebuttal and testified
as follows [state as above with reference to all witnesses in rebuttal].
Upon the conclusion of the testimony the plaintiff asked the court to give
instruction **No. 1," which is as follows: [here insert it] defendant objected, his
objection was overruled and said instruction given to which he excepted ; the defend-
ant moved the court to give instruction **No. 3," which Is as follows : [here insert
it] to which plaintiff objected, his objection was sustained and said instruction
refused, to which ruling of the court the defendant excepted. The court on its own
motion gave instruction "No. 3," which is as follows: [here insert it]. To the
giving of this instruction the plaintiff [or defendant, as the case may be] at the time
excepted. The foregoing instructions are the only ones that were offered or refused
or given.
[If anything occurs after instructions are given and before verdict is rendered
that either party desires to have inserted in bill it should appear here.] The bill
should close as follows: Then came plaintiff [or defendant] and tendered this his
bill of exceptions, which having been examined and approved by the judge, is
ordered to be filed and made a pnrt of the record without b«lng spread on the order
book. Judge.
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646 CIVIL CODE FORMS — ^PORM OP BILL OP EXCEPTIONS.
The following rules will be of service to the yoang practitioner:
Rnlel. If a reversal is asked because the e violence does not support the ver-
dict then the whole of the evidence of each witness must appear in the bill, aod
in place of stating that 'Hhe witness testified in substance as follows,*' state at
the conclusion of the testimony of each witness "the above is the testimony in full
of the witness.**
Rule 2. If the adverse party asks a witness a question that is objected to, the
bill should state the question objected to, and if the objection is overruled and
the witness allowed to answer question the bill should state the answer and that ** an
exception was taken to the ruling of the court ;" the following statement will illus-
trate the practice : The plaintiff asked witness [here state question], defendant
objected, his objection was overruled and witness permitted to answer the question
[state answer] to which ruling of the court defendant excepted. The objection aod
exception should be made at the time and the bill should so show.
Rple 3. If a party asks his witness a question and the adverse party objects, and
his objection is sustained, the party should then write out and submit to the court
the answer he expects the witness to make to the question ; and if the court declines
to permit witness to answer, the bill should state the question and the answer aod
should show that an exception was taken at the time to the ruling of the court in
excluding answer.
Rvle 4. When adverse party offers any evidence or to take any step during trial
that is objected to, it is necessary that the bill should show that an objection was
taken at the time, and also that an exception was taken at the time to the ruling of
the court in overruling the objection.
Rnle 5. When a party offers to take any step or introduce any evidence dur-
ing trial that an objection is made and sustained to, an exception should be taken
to the ruling of the court at the time, and the bill should so show.
Role 6. If deeds, papers, depositions, books, records or other like evidence is
offered, and an objection sustained to its introduction, it should be copied in the bill
and identified as follows : ** Plaintiff here offered to read a deed [or whatever it m»y
be, describing it] to which defendant objected, his objection was sustained and said
deed not allowed to be introduced as evidence, to which ruling of the court the
plaintiff at the time excepted. Said deed is as follows : [here insert it], or— the
defendant here offered to read a letter [or whatever it may be, describing it] from
Frank Hall to Wm. Burton, dated January 1, 1895, plaintiff objected to the reading
of said letter, his objection was overruled and said letter permitted to be read as evi-
dence, to which ruling of the court plaintiff at the time excepted. Said letter is as
follows [here insert it]. .
Rnle 7. If the court, <m its own motion, rules against a party, an exception taken
by him at the time to the ruling is sufficient ; an objection is not required.
Rnle 8. The bill should contain each instruction offered and refused and given,
and should'show that an objection was made at the time to giving those offered by
the adverse party, and if they were given, that an exception was taken at the time.
If the court on its own motion gives an instruction, an exception to it will be suf-
ficient, and if a party offers an instruction which is refused, the bill should
show that an exception to the ruling was taken at the time. A general exception
to all the instructions has been held sufficient, but the safer plan is to object and
except [or except, as the case may be] to the ruling of the court upon each instruction.
Rule 9. It is not necessary that the attorney in preparing the bill should copy into
it all deeds, papers and exhibits offered or used, or the instructions, but he should
arrange the bill so that each will be identified, and so that the clerk in copying the
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CIVIL CODE FORMS — JUDGMBNTS IN ORDINART ACTIONS. 647
bill can insert them in proper place. The following will illustrate: The court
refused to give instruction **No. 1 " offered by plaintiff, which is as follows: [here
insert it]; the court gave instruction "No. 2," on its own motion, or offered by defend-
ant, which is as follows : [here insert it]. The defendant offered to read deed from
Jones to Smith, which deed is as follows: [here insert it]. The clerk in making
record can then insert at proper places.
JUDGMENTS IN ORDINARY ACTIONS.
By Default on Note for Payment of Money.
[Sec. 368.]
John Smith, Plaintiff, ^ Cibcuit Ooubt.
vs. I Judgment.
James Jones, Defendant. J
The defendant, James Jones, having been duly summoned and failing to answer,
it is adjudged by the court that the plaintiff, John Smith, recover of the defendant
dollars, with interest thereon at the rate of six per cent per annum from the
of , 180 — , until paid, and his costs herein expended.
When There is a Trial and Verdict for Plaintiff.
[Sec. 368.]
John Smith, Plaintiff, ^ Cibcuit Coukt.
vs. y Judgment.
James Jones, Defendant, j
The parties appeared by their attorneys, and upon the trial of this cause the
following Jurors [name them] were sworn to try the issue, and, having heard the
evidence, the instructions of the court and argument of counsel, rendered the fol-
lowing verdict : ** We, of the jury, find for the plaintiff one hundred dollars. Sam
Allen, Foreman." It is, therefore, adjudged by the court that the plaintiff, John
Smith, recover of the defendant, James Jones, one hundred dollars, with interest
thereon at the rate of six per cent per annum, from , 189—, until paid, and
his costs herein expended.
When There is a Trial by the Court and Judgment for the Defendant
John Smith, Plaintiff, ) Cerctjit Court.
vs. V Judgment.
James Jones, Defendant, j
Judgment when law and facts are submitted to the court, and there is a request
for a separation of the findings of law and fact. [See sec. 332, and notes thereto.]
Upon the hearing of this case the court finds the facts to be as follows :
1. That the defendant was the surety in the note sued on.
2. That after he signed said note and without his consent, it was altered by
changing the time of payment from March 10, 1894, to April 10, 1895.
3. As matter of law the court adjudges that the said alteration releases the
defendant. The plaintiff excepts to each of the above findings of fact, and also to
the conclusion of law.
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648 CIVIL CODE FOBMS — JUDGHEKTS DT ORBIHABT ACTIONS.
[Sec. 368.]
John Smith, Plaintiflf, \ Cmcurr Coubt.
va, V Judgment.
James Jones, Defendant. J
Came the parties by their attorneys, and by agreement the facts were sub-
mitted to the court, and the court, being advised, adjudges that the plaintiff's
petition be dismissed and that the defendant recover of the plaintiff his costs in this
action expended. [See preceding form.]
Jodgmeot on Defflurrer to Petitloo.
[Sec. 368.]
John Smith, Plaintiff, ) Onunnr Coubt.
vs. [-Judgment.
James Jones, Defendant, j
This cause being heard on a demurrer to the petition, and the court being ad-
vised sustains the demurrer, to which plaintiff excepts, and leave is given the
plaintiff to amend his petition, and he declining to amend, and electing to stand by
his petition, the same is dismissed; and it is adjudged that the defendant recover of
the plaintiff his costs in this action expended. The plaintiff prays an appeal to the
Court of Appeals, which is granted.
Overrnling Demnrrer to Answer.
[Sec. 368.]
John Smith, Plaintiff, ) Cikcxjit Coubt.
va, > Order.
James Jones, Defendant. )
Came the parties by their attorneys and the demurrer heretofore filed to the
answer is overruled, to which the plaintiff excepts, and thereupon the plaintiff filed
his reply, and the parties announcing themselves ready for trial came this jury
Judgment for Plaintiff in Action for Personal Property.
[Sec. 830.]
John Smith, Plaintiff, "I Circuit Coubt.
vs. > Judgment.
James Jones, Defendant. J
Came the parties by their attorneys and upon the trial of this cause, the follow-
ing jurors [name them] were sworn to try the issue, and having heard the evidence
rendered the following verdict : *'We, the jury, find for the plaintiff the [here
describe property] in the petition mentioned, and find its value to be dollars, and
assess the damages for its detention at dollars. Ben Allen, Foreman." It is
therefore adjudged by the court that the plaintiff recover of the defendant
dollars, damages for the detention of the in the petition mentioned, and the
plaintiff 's costs herein expended, and the said if to be had ; or, if not to be
had, dollars, its value.
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CIVIL CODE FORMS — JUDGMENTS IN EQUITABLE ACTIONS. 649
JUDGMENTS IN EQUITABLE ACTIONS.
Cofflmencemeat of Jndf meat by Defantt.
[Sec. 368.]
John Smith, Plaintiff, 1 Cikcuit Coubt.
vs. y Judgment.
James Jones, Defendant, j
The defendant, James Jones, having been duly summoned and failing to answer,
it is adjudged by the court
Comffleflcemeot of Jadgmeat After Issae.
[Sec. 368.]
John Smith, Plaintiff, ^ CiKCurr Coubt.
vs. y Judgment.
James Jones, Defendant, j
This cause being heard upon the pleadings and evidence, it is adjudged by the
court
Judgment in Action to Enforce Uen on Land.
[Sec. 696, 697, and notes.]
John Smith, Plaintiff, ) Cibcuit Court.
vs. > Judgment.
James Jones, Defendant. )
The defendant, James Jones, having been duly summoned and failing to answer,
it is adjudged by the court that the plaintiff, John Smith, recover of the defendant
[here insert amount of debt], until paid, and his costs in this action expended. It is
further adjudged that to secure said debt, plaintiff has a lien on a tract of land in
county, Kentucky, containing one hundred acres, and bounded as follows [here
describe it] ; and that so much of said land as may be necessary to satisfy said debt,
interest and costs be sold for that purpose [or if the property is indivisible the judg-
ment should direct the sale of the whole of it]. C. T., Master Commissioner of
the Circuit Court, will make said sale at the court-house door, in , Ken-
tucky, on the first day of some regular term of the circuit or county court for said
county, at public outcry, to the highest and best bidder, on a credit of [here insert
time] months. He will take from the purchaser bond [or bonds, as the case may be]
with good surety for the purchase price, payable to himself, and bearing six
per cent interest from date. Before making said sale he will advertise the time,
terms and place thereof, and the sum for which it is to be made, together with a
description of the property to be sold, by written or printed notices posted up ; one
at the court-house door aforesaid, and three others at public places In the vicinity
of said land, for at least fifteen days just prior to day of sale, and he will also have
said property appraised [see Ky. Stat., sec. 2363]. The commissioner is allowed for
his services dollars, to be taxed as costs, and per cent of amount of
debt on day of sale to be taxed as costs [see Ky. Stat., sec. 1740], and will report his
action herein to the next term of this court.
Execution may issue for any part of said judgment that remains unpaid by the
sale of said property, or execution may issue by plaintiff's order for the whole
amount of said judgment before any sale; in which case no sale shall be made of
said property until the execution is returned.
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650 CIVIL OODB FORMS — APPBALS.
APPEALS.
Order Qraatliif from Wliole Judgnent off CIrcaH Court
[Sec. 734.]
John Smith, Plaintiff, i Cntcuir Coubt.
V8. y Order.
James Jones, Defendant. )
The defendant, James Jones, prays and is granted an appeal to the Ck)iirt of
Appeals frora the judgment rendered herein against him at the present term of this
court.
Order Qrantiof From Part off a Judgment off the Circsit Co«rt
[Sec. 734.]
John Smith, Plaintiff, ^ Cmcurr Ck)UBT.
V8, y Order.
James Jones, Defendant. J
The plaintiff, John Smith, prays and is granted an appeal to the Court of
Appeals from so much of the judgment, rendered herein against him at the present
term, as orders the plaintiff to [here recite correctly that part of the judgment
appealed from].
Supersedeas Bond on Appeal to the Court off Appeals.
[Sec. 748.]
John Smith, Appellant, ^ Circuit Court.
vs. y Supersedeas Bond.
James Jones, Appellee, j
Whereas the appellant, John Smith, has taken [or is about to take] an appeal from
a judgment of the Circuit Court, rendered at its term, 189—, against him
in favor of the appellee, James Jones, for [here insert the judgment or part thereof
appellant desires to supersede], and the appellant desires to supersede the said judg-
ment [or the part thereof above mentioned]. Now we, Henry Allen and Sam Kidd,
sureties, hereby covenant to and with the appellee, James Jones, that the ap'pellant
will pay to the appellee all costs and damages that may be adjudged against the
appellant on the appeal ; also that he will satisfy and perform the said judgment [or
the part thereof above recited] appealed from if it should be affirmed, and any order
or judgment which the Court of Appeals may render or order to be rendered by the
inferior court, not exceeding in amount or value the original judgment [and if the
appellee is kept out of the use or possession of property the following should be
added] ; and also pay all rents, hire or damages to property, during the pendency of
the appeal, of which the appellee is kept out of jwssession by reason of the appeal.
Witness our hands, this , 189—. Sam Kidd.
Attest : S. J., C. — C. C. Henry Allen.
[It is not necessary that appellant should sign this bond.]
Supersedeas.
[Sec. 752.]
John Smith, Appellant, 1 Circuit Court.
V8, V Supersedeas.
James Jones, Appellee. J
I do certify that an appeal has been granted by the Circuit Court from a
judgment rendered at its term, 189—, in favor of James Jones, appellee, against
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CIVIL COBB FORMS — ^APPBALS. 651
John Smith, appellant, for [here recite the judgment superseded], and that a super-
sedeas bond has been executed. Therefore, the appellee and all others are com-
manded to stay proceedings on the judgment above recited.
Witness my hand as clerk of said court, this , 189—.
8. J., C. — C. 0.
Bond on Appeal fron Inferior Court to Circoitor Qoarteriy Court
[Sec. 724.]
John Smith, Appellant, ^ Cibouit [ob Quabtbbly] Coubt.
V8, VAppea'. bond.
James Jones, Appellee, j
John Smith, having prayed an appeal to the Circuit [or Quarterly] Court
from the judgment of , a justice of the peace for county [or from the judg-
ment of the quarterly court of county], now we covenant that said John Smith
will satisfy and perform the judgment that shall be rendered upon the appeal.
Witness our hands this , 180~. William Howard.
Attest : Sam Eidd.
[It is not necessary that the appellant should sign this bond.]
Sapersedeas oo Appeal to Circait or Quarterly Court
[Sec. 724.]
John Smith, Appellant, ] Circuit [or Quarterly] Court.
vs, V Supersedeas.
James Oones, Appellee, j
7b Harry Allen^ Justice of the Peace for ^— County :
John Smith having taken an appeal to this court from a judgment rendered by
you on the first day of , 189 — , in the action of James Jones, plaintiff, against
John Smith, defendant, you are, therefore, ordered to stay all proceedings ui>on said
judgment and to transmit to the clerk's office of this court all the original papers in
said action.
Given under my hand as clerk [or judge] of said court, this , 189—
S. J., C. — C. C.
[or S. B., Judge — Q. C]
Sofflfflons 00 Appeal.
[See form of summons under ** Summons and Warning Orders," on page 625.]
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FORMS IN CRIMINAL CASES.
SUMMONS.
Sommofls to Police or Justices* Courts.
[Sections 10, 311, 328.]
Justices' Coubt of County [or Police CJourt].
The CcmmomoeaUh of Kentucky to any Constable of County [or to the Marshal of \.
You are commanded to summon John Jones to appear before me [or before the
Police Court], on the first day of , 189 — , to answer the charge [here state
offense, and time it was committed, and in what county], and have then and there
this writ, with due return how you have executed it.
Given under my hand as Justice of the peace of county [or as judge of said
court], this , 180— R. P., J. P. — C. [or J. P. C]
Summoos on Indictment
[Sec. 140.]
Circuit Coubt.
The Commonwealth of Kentucky to any Sheriff'^ Coroner, JaUer^ Constable, Marshal or
Policeman in this State :
You are hereby commanded to summon John Jones to appear in the Circuit
Court on the first day of its next term, to answer an indictment for misdemeanor
found against him in that court.
Given under my hand as clerliof said court, this , 189 — .
S. J., c. — c. c.
Sommons on Forfeited Ball-bond.
[Sec. 94.]
Cmcurr Court.
The Commonwealth of Kentucky to the Sheriff of County :
You are commanded to summon John Jones to appear in the Circuit Court
on the first day of its next term, to show cause why judgment should not be
rendered against him for dollars, on account of the forfeiture of the bail-bond
executed by him for the appearance of Henry Allen in said court to answer an
indictment found against him in said court [or for the appearance of Henry Allen
before S. B., judge of the County Court, to answer to the charge of felony
committed by said Henry Allen], and have then and there this writ, with due return
how you have executed it.
Given under my hand as clerk of said court, this , 189 — .
8. J., C. — 0. C.
(652)
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CRIMINAL CODE FORMS — WARRANTS OF ARR£ST. 658
WARRANTS OF ARREST.
For Offense Within Jnrisdictioo of Police Courts.
[Sees. 10, 312.]
Police Coubt.
The Commonwealihof Keniueky to the Marshal of ;
You are comm&Dded to arrest John Jones and bring him before the — Police
Court on the of , 189 — , to answer the charge of [here describe charge],
committed in the town of on , 189 — , and have then and there this writ
with due return of its execution.
Given under my hand as judge of said courts this oi , 189 — .
E. P., J. — P. C.
Indorsement as to Bill.
[Sec. 28.]
The defendant may give bail in the sum of dollars, and the bail may be
taken by the sheriff [or constable] of county.
Attest: B. P., J. — P. C.
F(yrm oj Bcdl Bond, See Bail.
[The proceedings as to bail in police and city courts are in nearly all cases regu-
lated by the statutes creating the courts.]
For Offense Within Jurisdiction of Justices' Courts.
[Sees. 10, 328.]
The Commonwealth of Kentucky to any Constable of County :
You are commanded to arrest John Jones, and bring him forthwith before me, or
some other magistrate of county, to answer the charge ot [here describe
charge], committed in county, on the of , 189 — , and then and there have
this writ, with due return how you have executed it.
Given under my hand as Justice of the peace of said county, this of ,
189^. 8. A., J. P. — C.
Indorsement as to Bail.
[Sec. 28.]
If a day is fixed in the warrant for the appearance and trial of the defendant,
this indorsement should be made on it, viz.: **The defendant may give bail in the
sum of % , and the bail may be taken by the sheriff [or constable arresting him]
of county." 8. A., J. P. — C.
Attest :
Form of bail-bond. See Bail.
Warrant of Arrest by Magistrate.
[Sec. 27.]
IVie Commonwealth of Keniueky to any Sheriff, Constable, Coroner, Jailer, Marshal or
Polieeman in this State :
It appearing that there are reasonable grounds for believing that John Jones has
committed the offense of [here describe offense], in the county of , you are
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654 CRIMINAL OODB FORMS — SUBPCEKAS — ATTACHMENT FOR WITNESS.
therefore coxmaanded forthwith to arrest John Jones, and bring him before some
magistrate of county, to be dealt with according to law.
Given under my hand as justice of the peace of county, this of ,
189—. 8. A., J. P. — C.
Summon as witnesses Sam Eidd and William Dick.
Indorsemeot oo Warrant if Offease Charfed is a Misdeaieaaor.
[Sec. 28.]
The within named John Jones is permitted to give bail in the sum of for
his appearance before me, or the judge of the County Court, on a day to be fixed
in the bail bond, for an examination of the charge, or before the Circuit Court
for trial, on the first day of the term next succeeding the arrest, and the sheriff of
the county where he may be arrested, or the sheriff [or constable arresting him]
of county, is authorized to take the bail.
Witness my hand this of , 189—. 8. A., J. P. — 0.
Form of Bail Bond. See Bail.
Beach Warrant
[Sees. 139, 142.]
Circuit Court.
Tfie Commomaealih of Keniueky to any SheHff^ Chnsiable, Coroner, JctiUr, Mar9hal or
Policeman in ihia State:
You are hereby commanded forthwith to arrest John Jones, and bring him
before the Circuit Court to answer an indictment in that court against him for
fejony [or for misdemeanor, as the case may be]; or, if the court be adjourned for
the term, that you deliver him to the jailer of county.
Given under my hand as clerk of said court, this of , 189 — .
S. J., C. — C. C.
[This form will answer on indictments in police courts.]
Indorseoient as to Bail on Bench Warrant.
[Sec. 142.]
The defendant may give bail in the sum of ; and if he desires to give such
bail, it may be taken by the sheriff of the county in which he is arrested, or by the
sheriff of county.
Attest : S. J., C. — C. C.
Form of bail-bond. See Bail.
Warrant of Arrest Requiring Bond to Keep the Peace.
See Security to Keep the Peace.
SUBPOENAS— ATTACHMENT FOR WITNESS,
To Attend Examining Court
[Sec. 61.]
The Commonwealth of Kentucky to the Sheriff or any Peace Officer of — Co/unty:
You are commanded to summon Henry Giles and Tom Davis to appear [here
state time] before me, the judge of County Court, at the court-house in
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CRIMINAL CODE FORMS — SUBPCENAS — ATTACHMENT FOR WITNESS. 655
[or any other place specifying], to testify on behalf of the plaintiff [or defendant],
on the examination of the charge against John Jones of having committed a felony
[or misdemeanor].
Given under my hand, this of , 189—. 8. B., J. — C C.
To Attend Trial Court
[Sees. 150, 315, 329.]
T)ie CammoniotaHh of Kentucky to the Sheriff of County :
You are commanded to summon [here insert names] to appear in the Cir-
cuit Court [here state day case is set for trial, or day attendance of witness is desired],
to testify on behalf of the plaintiff [or defendant] in the prosecution of the Common-
wealth of Kentucky against John Jones.
Given under my hand as clerk of said court, this , 189—.
8. J., C. — C. C.
[This form will answer in justices* and other courts, with variations to suit the
court.]
Snbpena Duces Tecum.
[Sees. 152, 329.]
The Commonwealth of Kentucky to the Sheriff of County :
You are commanded to summon John Jones, to produce in the — — Circuit
Court, on the day of its next term [here describe the writing or other
thing needed as evidence], to be used as evidence on behalf of the plaintiff [or de-
fendant] in the prosecution of the Commonwealth of Kentucky against John Smith.
Given under my hand as clerk of said court, this of , 189.
8. J., C. — C. C.
[This form will answer in justices* and other courts, with variations to suit the
court.]
Attachment for Witnesses.
[Sees. 61, 151, 315. 329.]
• CiBCurr OouBT.
The Commonwealth of Kentucky to the Sheriff of County :
You are commanded to arrest John Jones, and have him before the Circuit
Court on the of , 189 — , as well to testify on behalf of the plaintiff [or defend-
ant] in a prosecution in said court, between the Commonwealth of Kentucky,
plaintiff, and John Smith, defendant, as to answer for disobedience of the subpcsna
served on him. And you will admit him to bail for his appearance in the sum 6f
dollars.
Given under my hand as clerk of said court, this the , 189 — .
S. J., C. — C. C.
[This form, with variations to suit the court, will answer in justices' and other
courts.]
Bond to be Indorsed on Attachment.
We acknowledge ourselves bound to the Commonwealth of Kentucky in the sum
of dollars, as bail that said John Jones will appear at the time and place named
in the within warrant.
Attest: Jas. Giles.
, 189—. HbNRY ALLElf.
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666 OEDflNAL COPE FORMS — BAIL.
RiBCOfBixaace off Wttoesses.
[Sec. 69.]
Commonwealth of Kentucky, Plaintiff, ^ Examinino Coubt fob Couott.
vs. V Recognizance.
James Jones, Defendant. j
Came [here insert names] witnesses for plaintiff, and [here insert names] wit-
nesses for defendant, and in open court severally acknowledged themselves indebted
to the Commonwealth of Kentucky in the penal sum of one hundred dollars each,
to be void, however, upon their severally appearing in the Circuit Court, on the
first day of its next term, to testify in the above-named prosecution, and not
departing without leave of said court.
Attested by me, as judge of the County Court [or as justice of the peace of
county], this of , 189 — .
8. B., P. J. — C. C. [or J. P. — C]
[This form will answer when witnesses are recognized in the circuit court.]
BAIL.
Bail-bofld to Appear Before Magistrate for an Examinatioo off the Charge.
[Sees. 28, 29.]
John Jones having been arrested under a warrant of arrest for the charge of
[here state the charge], and being permitted to give bail in the sum of dollars,
now we, Henry Allen and John Smith, of county, Kentucky, do hereby under-
take that the above-named John Jones will appear before Samuel Allen, justice of
the peace of county [or before S. Bruce, judge of the County Court], on
the of , 189 — , to answer to the charge in ^id warrant specified, and then
and there surrender himself into custody, and will not thence depart without bein^
lawfully discharged : and if he fail to perform either of these conditions, that we
will pay to the Commonwealth of Kentucky the sum of dollars.
Witness our hands, this , 189—. Ubkrt Allbn.
Johh Smith.
Signed and taken before me, as sheriff of county. J. W., S. — C
Bail-bofld to Appear for Trial Without Examinatioii.
[Sees. 28, 29.]
John Jones, having been arrested under a warrant of arrest for the charge o(
[here state the charge], and being permitted to give bail in the sum of dollars,
now we, Henry Allen and John Smith, of county, Kentucky, do hereby under-
take that the above-named John Jones will appear in the Circuit Court, on the
of its next term, to answer said charge, and will at all times render him-
self amenable to the orders and process of said court in the prosecution of said
charge, and. If convicted, will render himself in execution thereof, or if he fail to
perform either of these conditions, that we will pay to the Commonwealth of Ken-
tucky dollars.
Witness our hands, this 10, 189—.
Henrt Allen.
John Smith.
Signed and taken before me, as sheriff of county. J. W., 8. — C.
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CRIMINAL CODE FORMS — ^BAIL. 667
Bail-boad Taken by Examioins Conrt for the Defeodant's Appearance in the
Examining Conrt
[Sec. 55.]
John Jones, having been brought before , judge of the County Court
[or justice of the peace for county] for an examination of the charge of [here
state charge], and being allowed to give bail for his appearance during the examina-
tion of the charge, now we, Henry Alleh and John Smith, of county, Kentucky,
do undertake that said John Jones will appear in said examining court at such times^
and places as shall, from time to time, be specified by s&id court> and will tender
himself amenable to all orders of said court in the e^aamination of the charge ; and
if he fail to perform either of said conditions, we will pay to the Commonwealth of
Kentucky dollars.
Witness our hands, this , 189 — . Hbnrt Allen.
John Smith.
Taken and signed before me as judge of the County Court [or justice of
the peace of county]. S. B., P. J. — C. C. [or J. P. — C]
Bail-bond for Defendant's Appearance in Conrt for Trial, Taken by Examining
Court, or by a Magistrate or Clerk After Commitment, or by a Sheriff on a Bench
Warrant
. [Sees. 46, 68, 83.]
John Jones, being in custody, charged with the offense of [here state offense],
and being admitted to bail in the sum of — ^ dollars, now we, Henry Allen and
John Smith, of county, Kentucky, hereby undertake that the above-named
John Jones will appear in the Circuit Court on the day of its next
term, to answer said charge, and will at all times ];ender himself amenable to the
orders and process of said court in the prosecution of said charge, and, if convicted,
will render himself in execution thereof, or if he shall fail to perform either of these
conditions, that we will pay to the Commonwealth of Kentucky the sum of
dollars.
Witness our hands, this , 18d— . Henry Allen.
John Smith.
Taken and subscribed before me as sheriff of county [or judge of the
County Court, or justice of the peace of county, or clerk of the Circuit
Court]. J. W., S. — C. [or P. J. — C. C, or J. P. — C, or C. — C. C]
Bond Taken in Police or Justices' Conrt for Appearance in Same Conrt
[Sees. 309, 325.]
. Police Court [or Justices' Court op •• — County.]
John Jones, being in custody, charged with the offense of [here state offense],
and being admitted to bail in the sum of one hundred dollars, now we, Henry Allen
and John Smith, of county, Kentucky, hereby undertake that the above-named
John Jones will appear in the Police Court [or before the court of , a jus-
tice of the peace of county] on the of , 189 — , to answer said
charge, and will at all times render himself amenable to the orders and process of
said court in the prosecution of said charge, and, if convicted, will surrender him-
(42)
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658 CRIMINAL CODE FORMS — MONEY DEPOBrtBD IK LIEU OF BAIL.
self in execution thereof , or if he shall fail to perform either of these ooDditionSf that
we will pay to the Commonwealth of Kentucky the sum of dollars.
Witness our hands, this , 189—. Henry Ali^sn.
John Smith.
Taken and suhscribed before me as judge of the police court [or as justice
of the peace of county], this , 189 — .
Samuel Allen, J. — P. C. [or J. P. — C]
Examination of the Bail oo Oatli.
[Sec. 77.]
John Smith, being sworn and examined as to his qualifications as bail, states
that he is a resident of county, Kentucky ; that he is owner of [here describe
property] in county, the title of which is complete and unencumbered, and
subject to execution and worth, as he believes, dollars ; also of personal prop-
erty in said county subject to execution, worth dollars ; that he does not owe
more than — — dollars ; nor is he bound as security for more than dollars ; and
that he believes he is worth, over the payment of his debts and liabilities, at least
dollars.
, 189—. John Smith.
Sworn to before me as sheriff of — county. J. W., S. — C.
Recasniiaoce of Bail.
The Commonwealth of Kentucky ) Circuit Court.
vs. >
John Smith. )
John Jones and William Smith, of county, Kentucky, appeared personally
in court and acknowledged themselves jointly indebted to the Commonwealth of
Kentucky in the sum of dollars, to be void, however, if John Smith shall
appear in the Circuit Court, on the first day of its next term [or any day
of the same term], to answer the indictment for felony [or misdemeanor], found in
said court against him ; and shall not depart without leave of the court.
MONEY DEPOSITED IN LIEU OF BAIL
Entry on the Minutes of the Examininf Court of Money Deposited in Uen of BaU.
[Sec. 56.]
The defendant, John Jones, deposited in the hands of , sheriff of
county, dollars in lieu of bail for his appearance belore this court for an exam-
ination of the charge of his having permitted unlawful gaming in a house of
which he was owner, and for his rendering himself amenable to the orders and proc-
ess of this court in the prosecution of said charge, and for his rendering himself
in execution, if convicted.
Entry in Examining Court off the Forfeiture of Money Deposited In Lien of BaU
[Sec. 56.]
The defendant, John Jones, having failed to appear in court on this day, to
which the examination of the charge against him had been adjourned, it is ordered.
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ORIMIKAL COBB FORMS — MONET DBPOSITSD IN LIBU OF BAIL. 659
that the money deposited by^him with the sheriff of county in lieu of bail be
forfeited, and be paid over to the trustee of the jury fund.
Ackoowledfrnent of Jailer that the Defeodant has been Snrreadered.
[Sees. 86, 88.]
I, , jailer of county, acknowledge that on this day John Jones, who is
•charged with the offense of [here state offense], and has given bond for his appear-
Ance in the Circuit Court to answer said offense, was surrendered tp me by his
bail, Henry Allen [or surrendered himself to me], in discharge of said bond.
Witness my hapd as jailer of - — county, this — *, 189^.
M. R, J. — C.
lotforaemeat hy BaU to Have Del eadaot Arrested.
• [Sec. 87.]
We, Henry Allen and John Smith, bail for John Jones, as appears from the
within bond [or recognizance], hereby direct the sheriff of county [or any
peace officer, or any person, naming him], to arrest the said John Jones and deliver
him to the jailer of county.
Witness our hands this , 189—. Henkt Allen.
John Smith.
Certificate by Trustee of the Jury Pimd of Mooey Deposited io Liea of Bail.
[Sec. 809.]
I, , trustee of the jury fund of county, do certify that John Jones, who
Js in custody on the charge of larceny, and allowed to give ball in the sum of — ^
•dollars for his appearing In the Circuit Court, on the first day of its next
term, and rendering himself amenable to the orders and process of the said court in
the prosecution of said charge, and, if convicted, rendering himself in execution
-thereof, has deposited In my hand dollars in lieu of bail.
Given under my hand, this , 189—. J. W., T. J. F. — . C.
Notice to Attorney for Coonnoflwealth of Applicatioo for Retnro of Mooey Deposited
ifl Liea of Bail.
[Sec. 88.]
Jb — , Esq.t Aiiomey /or Commontoealth for County:
You are hereby notified that John Jones, having deposited with the trustee of
the jury fund for county the sum of dollars, in lieu of bail, and having
surrendered himself to the jailer of county, and procured from him a certificate
of such surrender, a copy of which certificate is served herewith, will, on the
of , 189 — , make application to the Circuit Court [or to the judge of the —
-Circuit Court] for the return to him of the said sum of dollars deposited as
ikforesaid. Johk Jones.
Summons offainsi bail. See Summons.
ExeetUum on forfeited bail-bond. See Executions.
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660 CRIMINAL CODE FORMS — PROCEEDINGS IN EXAMINING COURT.
PR0CEEDINQS IN EXAMININQ COURT.
Minntes of Examininf Court
The CJommon wealth of Kentucky ) County, > 180 — .
John Smith. )
The defendant, John Smith, having been brought before me, the judge of the
County Court [justice of the peace for county], charged with the offense
of larceny, and being informed of the nature of the charge against him, moved an
adjournment of examination until the day of this month, to procure the aid of
counsel and the attendance of witnesses, which motion was sustained ; and, in the
meantime, he is committed to the jail of county [or to the custody of the
sheriff of county].
(If the offense be a misdemeanor, or bailable felony, sec. 55, and the defendant
desires to give bail, or deposit money in lieu of bail, an entry of the facts should be
made on the minutes.)
, 189—.
The court met pursuant to adjournment, and the defendant was brought from
jail. Defendant filed his affidavit, stating that he did not believe he could secure a
fair trial before , judge of the County Court [or justice of the peace], the
presiding magistrate in this case, and thereupon the said retired from the case.
and , justice of the peace for county, having been duly notified, appeared
for the purpose of presiding in the case.
The parties being ready, the defendant moved that the witnesses be examined
separately ; whereupon all the witnesses, except the one under examination, were
removed out of hearing of the witness under examination.
John Jones was appointed by me to act as clerk in writing down the testimony
of the witnesses.
Thomas Cox being sworn and examined on behalf of the Commonwealth, testi-
fied : [Here should follow the testimony of the witnesses.]
The court having heard the evidence and the arguments of counsel, and being
satisfied that there are not suflflcient grounds to believe that the defendant is guilty
of the offense charged, or any other offense, and it is ordered that he be discharged.
[Or, the court having heard the evidence and the arguments of counsel, and being
satisfied that there are sufficient grounds to believe the defendant is guilty of the
offense charged, it is ordered that he be held for trial in the Circuit Court, and
allowed to give bail in the sum of dollars ; and not giving bail, he is committed
to the jail of county.]
The witnesses on behalf of the Commonwealth, and , and the witnesses
on behalf of the defendant, and , entered into recognizances for their
appearance in the Circuit Court. The warrant of arrest (the bail-bond) and
recognizances of the witnesses accompany these minutes.
, J. P. — C.
[If a magistrate be objected to and retire from the case, the magistrate taking
his place should sign the minutes.]
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CRIMINAL COPB FORMS — COMMITMENT. 661
COMMITMENT.
Order of Commitment Dnrlof the Adjoammeot of the Examiniiif Coort
[Sec. 55.]
The Commonwealth of Kenineky to the Jailer of Chuniy :
You are commanded to receive iuto the jail of county, and him
safely keep until the of , 189 — , when you will deliver him to the sheriff,
or other peace officer of county, to be brought again before me, for an exam-
ination of the charge of larceny, for which he is in custody.
Given under my hand, as judge of the County Court [or justice of the
peace for county], this of , 189 — .
S. B., P. J. — C. C. [or J. P. — C]
Order of Commitment for Trial.
[Sec. 67.]
The Commonwealth of Kentucky to the Jailer of County :
You are commanded to receive into the jail of county, , and him
safely keep until discharged by due course of law, he having been held by me, as an
examining court, for trial in the Circuit Court, on the charge of larceny, and
allowed to give bail in the sum of dollars, for default of which he is com-
mitted to jail.
Given under my hand, as justice of the peace of county, this of ,
189—. 8. B., J. P. — C.
SECURITY TO KEEP THE PEACE.
Warrant of Arrest.
[Sec. 383.]
The Commonwealth of Kentucky to any Sheriff, Coroner, Jailer, Constable, Marshal or
Policeman in this State :
It appearing from the complaint on oath of Henry Allen that John Jones has
threatened to commit an offense against his person [or his property], you are there-
fore commanded to arrest the said John Jones and bring him before me, or some
other magistrate of county, to be dealt with according to law.
Given under my hand as judge of county, this the of 189 — .
S. B., J. — C. C.
Bond of Defendant, Talcen by a Justice of the Peace.
[Sees. 325, 384, 3vS7.]
John Jones being in custody and required to give bond, in the sum of dol-
lars, for his appearance in the Circuit Court on the first day of its next
term, and to keep the peace [or for his good behavior, or both] until said appearance,
we, William Graves and Bernard Long, of county, hereby undertake that the
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662 CRIMINAL COPE FORMa — 8B0URITT TO KBBP THB PEACE.
said John Smith will appear in the Circuit Court on the first day of its next
term, and will not depart thence without leave of said court ; and that until
said time he will keep the peace toward all persons in the Commonwealth of Ken-
tucky, and will not be guilty of any offense involving a breach of the peace, nor of
any felony ; and if he fail to perform either of these conditions we will pay to the
Commonwealth of Kentucky the sum of — dollars.
Witness our hands this , 189-^. William Grayss.
Bbrma&d Long.
Taken and signed before me as Justice of the peace of county, this the
day of 189—. 8. A., J. P. — O.
Bond of Defeadiat Takoi by a Circuit, Couty or Police Co«rt
[Sees. 384, 387.]
John Jones being in custody and required U» give bond in the sum of dol-
lars to keep the peace [or for his good behavior, or both] for the period of one year
from 189 — , now, we, William Graves and Bernard Long, of county,
hereby undertake that the said John Jones will, during said period, keep the peace
toward all persons in the Commonwealth of Kentucky, and that, during said period,
he will not be guilty of any offense involving a breach of the peace, nor of any
felony ; and if he fail to perform either of these conditions, we will pay to the Com-
monwealth of Kentucky the sum of dollars.
Witness our hands, this , 189 — . William Gravbs.
Bernard Long.
Taken and subscribed before me as clerk of the Circuit Court [or judge of
the County Court or police judge of ], this , 189 — .
R. P., C. — C. C. [or J. — C. C. or P. J. .]
Order of Commitment Upon Pailnre to Give Bond.
[Sees. 384, 387, 398.]
The Commonwealth of Kentucky to the Jailer of — County :
You are commanded to receive into the jail of county, John Jones, and
him safely keep for the period of three months from this day, unless he shall. In the
meantime, give security to the Commonwealth of Kentucky in the sum of dol-
lars for his appearance in the Circuit Court on the first day of its next
term, and for keeping the peace [or for his good behavior or both], until said appear-
ance [or for keeping the peace, or for his good behavior or both, for the period of one
year from this day].
Given under my hand as justice of the peace of county [or the oflScial title
of the committing magistrate or clerk of the Circuit Court], this ^— , 180 — .
Henry Davis, J. P. — C.
Recofiiizance of Security.
[Sec. 303,]
The Commonwealth of Kentucky ^ Circuit Court.
V8. V
John Jones. J
Came this day William Graves and Bernard Ijong, and in open court acknowl-
edged themselves jointly indebted to the Commonwealth of Kentucky in the penal
sum of *-— dollars, to be void, however, If John Jones shall keep the peace toward
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CRIMINAL CODE F0RM8-**INDI0TMBNT8. 663
all pertons in the Common wealth of Kentucky and not be guilty of any offense
involving a breach of the peace nor a felony [or be of good behavior], for one year
from this date.
[This form will answer in other courts and cases with variations to suit the
court and case.]
INDICTMENTS.
No. 1. Indictment for Murder.
[See notes, 60-63 to sec. 123, and Ky. Stat., sec. 1149.]
The Commonwealth of Kentucky '\ Circuit Court.
va. \
John Smith. J
The grand jury of county, in the name and by the authority of the Com-
monwealth of Kentucky, accuse John Smith of the crime of willful murder, com-
mitted as follows, viz.; The said John Smith on the — — day of — , 189 — , in the
county aforesaid, did feloniously, willfully and with malice aforethought, kill and
murder Thomas Jones, by stabbing him with a knife, or some other edged weapon
[or by shooting him with a gun or pistol, or by striking him with an ax or some
other heavy weapon, according to the facts], from which stabbing or shooting or
striking the said Jones did then and there die [or died within a year and a day there-
after], against the peace and dignity of the Commonwealth of Kentucky.
No. 2. lodictineot for Manslaughter.
[See Ky. Stat., sec. 1150.]
The Commonwealth of Kentucky 1 — CiRcmT Court.
vs \
John Smith. J
The grand jury of county, in the name and by the authority of the Com-
monwealth of Kentucky, accuse John Smith of the crime of manslaughter, com-
mitted as follows, viz. : The said John Smith on the of , 189 — , in the county
aforesaid, did feloniously and willfully kill Thomas Jones, by stabbing him with a
knife, against the peace and dignity of the Commonwealth of Kentucky.
No. 3. Indictment for Rape on Female Over Twelve Years of Age.
[See notes 67, 68 to sec. 122, and Ky. Stat., sec. 1154.]
The Commonwealth of Kentucky 1 Circuit Court.
John Smith. j
The grand jury of county, in the name and by the authority of the Com-
monwealth of Kentucky, accuse John Smith of the crime of rape upon a female of
and above twelve years of age, committed as follows, viz.: The said John Smith, on
the — of . 189 — , in the county aforesaid, forcibly, unlawfully and against
hej consent, carnally knew Jane Carnes, a female of and above twelve years of age,
against the peace and dignity of the Commonwealth of Kentucky.
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664 CRIMINAL CODE FORMS — INDICTMENTS.
No. 4. lodictiiieiit for CamaUy Koowing a Female Under Twelve Years off Age.
[See notes 67, 68 to sec. 122, and Ky. Stat., sec. 1155.]
The Commonwealth of Kentucky ) Circuit Court.
V8. V
John Smith. )
The grand jury of county, in the name and by the authority of the Com-
monwealth of Kentucky, accuse John Smith of the crime of carnally knowing a female
under the age of twelve years, committed as follows, viz. : The said John Smith, on
the of , 189 — , in the county aforesaid, unlawfully and carnally knew Jane
Carnes, a female under the age of twelve years, against the peace and dignity of the
Commonwealth of Kentucky.
No. 5. Indictmeot for Robbery.
[See note 70 to sec. 122, and Ky. Stat., sec. 1159.]
The Commonwealth of Kentucky ) Circuit Court.
V8, >
John Smith. )
The grand jury of county, in the name and by the authority of the Com-
monwealth of Kentuclcy, accuse John Smith of the crime of robbery, committed as
follows, viz. : The said John Smith, on the of , 189 — , in the county afore-
said, did feloniously take a gold watch, the property of Jonathan Spilman, from his
person [or in his presence, as the fact may be], and against his will, by putting him
in fear of some immediate injury to his person, against the peace and dignity of
the Commonwealth of Kentucky.
No. 6. Indictmeot ffor Maimiof .
[See Ky. Stat., sec. 1165, and 5 R. 238.]
The Commonwealth of Kentucky \ Circuit Court.
vs. V
John Smith. J
The grand jury of county, in the name and by the authority of the Com-
monwealth of Kentucky, accuse John Smith of the crime of mayhem, committed as
follows, viz.: The said John Smith, on the of , 189—, in the county afore-
said, did unlawfully and feloniously bite off the ear of John Parker, against the
peace and dignity of the Commonwealth of Kentucky.
No, 7. lodictneiit for Assault aod Battery.
[Notes 15-17 to sec. 122.]
The Commonwealth of Kentucky ^ Circuit Court.
v8. y
John Smith. J
The grand jury of county, in the name and by the authority of the Com-
monwealth of Kentucky, accuse John Smith of the offense of an assault and battery,
committed as follows, viz.: The said John Smith, on the of , 18&— , in the
county aforesaid, did maliciously, unlawfully and willfully assault, beat and bruise
Lewis Reese, against the peace and dignity of the Commonwealth of Kentucky.
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CRIMINAL CODE FORMS — ^INDICTMENTS. 665
^k>. 8. ladictmeot for Burglary.
[See note 22 to sec. 122, and Ky. Stat., 8eo. 1159.]
The Commonwealth of Kentucky 1 CiBCurr Coubt.
vs. V
John Smith. j
The grand jury of county, in the name and by the authority of the Com-
monwealth of Kentucky, accuse John Smith of the crime of burglary, committed as
follows, viz.: The said John Smith, on the day of , 189 — , in the night time,
in the county aforesaid, unlawfully and feloniously broke into and entered the dwell-
ing-house of B. M., with intent to commit a felony, against the peace and dignity of
the Commonwealth of Kentucky.
No. 9. Indictment for Destroyiof a Will.
[See Ky. Stat., sec. 1226.]
The Commonwealth of Kentucky ) Circuit Court.
V8, V
John Smith. )
The grand jury of county, in the name and by the authority of the Com-
monwealth of Kentucky, accuse John Smith of the crime of fraudulently destroying
[or concealing, as the case may be] a will, committed as follows, viz.: The said
John Smith, on the of , 189 — , in the county aforesaid, fraudulently
destroyed [or concealed] the last will and testament of W. M., devising legally his
real and personal estate, with the fraudulent intent to prevent the probate thereof,
against the peace and dignity of the Commonwealth of Kentucky.
No. 10. Indictmeflt for Arson.
[See notes 11-14 to sec. 122, and Ky. Stat., sec. 1167.]
The Commonwealth of Kentucky '\ Circxht Court.
John Smith. J ^
The grand jury of county, in the name and by the authority of the Com-
monwealth of Kentucky, accuse John Smith of the crime of arson, committed as
follows, viz.: The said John Smith, on the of , 189 — , in the county afore-
said, did feloniously, maliciously and willfully set fire to and burn the dwelling-
house of Richard Jones, against the peace and dignity of the Commonwealth of
Kentucky.
No. 11. Indictment for Attempt at Arson.
[See notes 11-14 to sec. 122, and Ky. Stat., sec. 1172.]
The Commonwealth of Kentucky '\ Circuit Court.
vs. V
John Smith. J
The grand jury of county, in the name and by the authority of the Com-
monwealth of Kentucky, accuse John Smith of the crime of an attempt at arson,
committed as follows, viz.: The said John Smith, on the of , 189 — , in the
county aforesaid, did feloniously, willfully and maliciously attempt to burn the
dwelling-house of Richard Jones, by then and there attempting to set fire to and
burn said house, against the peace and dignity of the Commonwealth of Kentucky.
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666 O&UCINAL COPB FORMS-^INDICXMEHTS.
No. IZ. Ifldktmeflt for Perlory*
[ See note 00 to sees. 122, IH, and notes ; and Ky. Stat., sec. 1173.]
The Commonwealth of Kentucky ^ — Cibcuit Ooukt,
w. \
John Smith. I
The grand jury of — county, In the name and by the authority of the Com-
monwealth of Kentucky, accuse John Smith of the crime of perjury, committed as
follows, viz. : The said John Smith, on the — • of , 180—, in the county afore-
said, on his examination as a witness, duly sworn by the Judge of said court [or the
clerk thereof] to testify the truth, on the trial of a civil action in the — Circuit
Court, between A. Q. Hodges, plaintiff, and James Robb, defendant, concerning the
ownership of a certain bay horse — which judge [or clerk] had authority to administer
such oath — feloniously, falsely and corruptly testified that he had never heard A. G.
Hodges say he was the owner of said bay horse, when in fact and in truth he had
frequently heard him say he was the owner of said horse, and the matters so testified
being material, and the testimony being willfully and corruptly false, and so known
to be by him, the said John Smith, against the peace and dignity of the Common-
wealth of Kentucky.
No. 13. ^ Isdictneot for False Swearing.
[See notes 35-37 to sec. 122, and Ky. Stat., sec. 1174.]
The Commonwealth of Kentucky l -^^^^ Cmcurr CouBT.
John Smith. j
The grand jury of county, in the name and by the authority of the Com-
monwealth of Kentucky, accuse John Smith of the crime of false swearing, com-
mitted as follows, viz. : The said John Smith on the of , 189 — , in the
county aforesaid, after having been first duly sworn by the clerk of the Circuit
Court, said clerk having authority to administer an oath to testify to the truth on
the trial of an action pending in said court wherein John Jones was plaintiff and
Henry Williams, defendant, involving the question as to which of said parties was
the owner of a black horse, did falsely, knowingly and willfully testify that he had
not seen said Williams buy and pay for said horse, when in fact and in truth said
Smith was present when said Williams bought said horse, and did see him buy and
pay for said horse, against the peace and dignity of the Commonwealth of Ken-
tucky.
No. 14. Indictment for Bigamy.
[See notes 18-20 to sec. 122, and Ky. Stat., sec. 1216.]
The Commonwealth of Kentucky | CiKcurr Court.
John Smith. J
The grand jury of county in the name and by the authority of the Com-
monwealth of Kentucky, accuse John Smith of the crime of bigamy, committed as
follows: The said John Smith on the of , 189 — , in the county afore-
said, having a wife then living by the name of Mary Smith, whose name before he
married her was , to whom he, the said John Smith, was lawfully married on
the of , 189—, in the county of and State of — , did unlawfully
marry Jane Grimes, against the peace and dignity of the Commonwealth of
Kentucky.
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CRIMINAL CODB FORMS — INDIOTMBNTS. 66T
No. 15. ImUctmeiit for Qraad Larceny.
[See notes 58-56 to sec. 122, and seo. 185 ; and Ky. Stat., 1194.]
The Commonwealth of Kentucky 1 Cikcuit Court.
John Smith. J
The grand jury of county, in the name and by the authority of the Com-
monwealth of Kentucky, accuse John Smith of the crime of grand larceny, com-
mitted as follows, viz. : The said John Smith on the of , 189 — , in the
county aforesaid, feloniously took and carried away twenty silver spoons [or certain
notes issued as currency by the United States, and commonly known as legal tender
notes; or certain bank notes issued by banks duly incorporated, and authorized to
issue said notes under the laws of the United States, or of the State of ], the
personal property of George W. McDonald [or of a person whose name is unknown
to the grand jury, if the owner of the property be unknown], of the value of more
than twenty dollars, Intending to permanently deprive the owner of the possession
thereof, against the peace and dignity of the Commonwealth of Kentucky.
No. 16. lodictnieiit for Petit Urceny.
[See notes 58-66 to sec. 122 ; sec. 135; and Ky. Stat., sec. 1243.]
The Commonwealth of Kentucky ) Cibcuit Court.
VB. \
John Smith. )
The grand jury of county, in the name and by the authority of the Com-
monwealth of Kentucky, accuse John Smith of the crime of petit larceny, commit-
ted as follows, viz.: The said John Smith, on the '• of — , 189—, in the
county aforesaid, feloniously took and carried away an ax, the property of Jackson
Sparrow, and of the value of less than twenty dollars, against the peace and dignity
of the Commonwealth of Kentucky.
No. 17. Indictneot for Obtaiaing Money or Property Under False Pretenses.
[See notes 33-34 to sec. 122, and Ky. Stat., sec. 1208.]
The Commonwealth of Kentucky! Circuit Court.
M. \
John Smith. )
The grand jury of county in the name and by the authority of the Com-
monwealth of Kentucky, accuse John Smith of the crime of obtaining money [or
property, as the fact may be], under false pretenses, committed as follows, viz. :
That said - — , on the of , 189—, in the county aforesaid, by falsely pre-
tending and representing to that he was a banker in the city of and
possessed of large pecuniary means, obtained from said $ [or property],
with intent to commit a fraud upon him ; against the peace and dignity of the Com-
monwealth of Kentucky.
No. 18. Indictment for Bnbezdement.
[See note 31 to sec. 122, and Ky. Stat., sec. 1202.]
The Commonwealth of Kentucky "j — - Circuit Court.
John Smith. J
The grand jury of county, in the name and by the authority of the Com*
monwealth of Kentucky, accuse John Smith of the crime of embezzling to his own
use, bank notes and money, committed as follows, viz.: The said , on the — —
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668 CRIMINAL CODE FORMS — INDICTMENTS.
of 1?9 — , In the county aforesaid, being a servant in the Bank, at ,
a banking corporation created by the laws of Kentucky, did fraudulently convert to
his own use dollars in bank notes issued by the United States as currency and
known as legal tender notes ; and which said money thus appropriated had been
intrusted by , the cashier of said Bank, to said , who was a servant
in the employment of said bank at that time, to be taken from said Bank
in , to be deposited by him to the credit of in the Bank, against
the peace and dignity of the Commonwealth of Kentucky.
No. 19. Indictment for False Personatioo.
[Ky. Stat., sec. 1209.J
The Commonwealth of Kentucky ^ Circuit Court.
vs. y
John Smith. J
The grand jury of county, in the name and by the authority of the Com-
monwealth of Kentucky, accuse John Smith of the offense of falsely and fraudulently
personating another person, committed as follows, viz.: The said on the of
189 — , in the county aforesaid, falsely and fraudulently represented himself
to be , and in such assumed character married , against the peace and
dignity of the Commonwealth of Kentucky.
No. 20. Indictnent for Counterfeitlflf Colo.
[See note 27 to sec. 122, and Ky. Stat., sec. 1181.]
The Commonwealth of Kentucky 1 Circuit Court.
v8. y
John Smith. J
The grand jury of county, in the name and by the authority of the Com-
monwealth of Kentucky, accuse John Smith of the crime of counterfeiting com-
mitted us follows, viz. : The said John Smith, on the of , 189 — , in the
county aforesaid, did counterfeit a coin of the United States, known as a ,
which was then passing as current in the Commonwealth of Kentucky, with intent
to defraud, against the peace and dignity of the Commonwealth of Kentucky.
No. 21. indictment for Havinf in Possession Counterfeit Money.
[See note 27 to sec. 122, and Ky. Stat., sec. 1193.]
The Commonwealth of Kentucky ^ Circuit Court.
vs. y
John Smith. J
The grand jury of county, in the name and by the authority of the Com-
monwealth of Kentucky, accuse John Smith of the crime of unlawfully having in
his possession counterfeit bank notes, committed as follows, viz. : The said John
Smith, on the of , 189—, in the county aforesaid, had in his possession
counterfeit bank notes of the Bank of , each of the denomination of
dollars, and each payable on demand at the office of said bank in ; the genuine
notes of said bank being at that time current in this State, and which said notes
thus in the possession of said John Smith were known to him to be counterfeit, and
were held by him with intent to defraud, by uttering and passing said counterfeit
bank notes as true and genuine notes, against the peace and dignity of the Common-
wealth of Kentucky.
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CRIMINAL CODE FORMS — ^INDICTMENTS.
No. 22. Indictmeot for Forgery.
[See notes 38-40, see. 122, sec. 133, and Ky. Stat., sec. 1185.]
The Commonwealth of Kentucky 1 Cmcuir Coubt.
V8. [
John Smith. )
The grand jury of county, in the name and by the authority of the Com-
monwealth of Kentucky, accuse John Smith of the crime of forgery committed as
follows, viz. : The said John Smith, in the county aforesaid, on the of ,
and before the finding of this indictment, did, without the knowledge or consent of
James Jones and with the intent to defraud, sign the name of said Jones to a due
bill in words and figures as follows [here set out the writing in full], against the
peace and dignity of the Commonwealth of Kentucky.
No. 23. Indictment for Uttering a Forged Writing.
[See notes 38-40, sec. 122, sec. 133, and Ky. Stat., sec. 1185.]
The Commonwealth of Kentucky ] CmcDiT Court.
vs. y
John Smith. J
The grand jury of county, in the name and by the authority of the Com-
monwealth of Kentucky, accuse John Smith of the crime of uttering a forged
writing, committed as follows, viz.: The said John Smith did in the county afore-
said, on the of , 189 — , and before the finding of this indictment, deliver to
James Jones a writing in words and figures, as follows, to-wit [here insert copy of
writing], which writing purported to have been signed by one Bland Haydon, and
said Smith stated to Jones when he delivered him said writing that said Haydon
had signed his name thereto, and on the faith of said statement said Smith obtained
from Haydon dollars. When at the time Smith delivered said and made
said statement he knew it was false and knew that said Haydon had not signed his
name to said , and that his name had been forged and counterfeited and that it
was not his signature, and said paper was delivered and said representations made
with the intent to defraud said Haydon, against the peace and dignity of the Com-
monwealth of Kentucky.
No. 24. Indictment for Malicious Shooting.
[See note 85, sec. 122, and note 8, sec. 154, and Ky. Stat., soc. 1166.]
The Commonwealth of Kentucky 1 Circuit Court.
tw. \
John Smith. j
The grand Jury of county, in the name and by the authority of the Com-
monwealth of Kentucky, accuse John Smith of the crime of willful and mali-
cious shooting, with intent to kill, committed in manner and form as follows, viz.:
The said John Smith, on the of , 189 — , and before the finding of this
indictment, did, in the county aforesaid, willfully and maliciously shoot and wound
one James Bennett with a pistol loaded with leaden bullet, and with the inten-
tion to kill him, from which shooting the said Bennett did not die, against the
peace and dignity of the Commonwealth of Kentucky.
No. 25. Indictment for Catting in Sadden Heat and Passion.
[See note 85, sec. 122, and Ky. Stat., sec. 1242.]
The Commonwealth of Kentucky ) Circxjit Court.
vs. V
John Smith. )
The grand Jury of county, in the name and by the authority of the Com-
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670 CRIMINAL COM FORMS — ^INDICTMENTS.
monwealth of Kentucky, accuse John Smith of the offense of cuttin^;^, in sudden heat
And passion, committed in manner and form as follows, vix.: The said John Smith,
in the county aforesaid, on the of , 189 — , and before the finding of this
indictment, did, in sudden heat and passion and not in self-defense, cut with a knife
one James Bennett without killing him, against the peace and dignity of the Com-
monwealth of Kentucky.
No. U. Indictment for SeUing Liquor WitlMHit License.
[Ky. Stat., sec. 1304.]
The Commonwealth of Kentucky ^ — — CiBCurr CotmT.
vs. \
John Smith. j
Tlie grand jury of county, in the name and by the authority of the Com-
monwealth of Kentucky, accuse John Smith of the offense of selling liquor without
license, committed in manner and form as follows, viz.: The said John Smith, in
the county aforesaid, on the of , 189 — , and before the finding of this indict-
ment, did sell and dispose of to John Jones spirituous, vinous and malt liquors and
mixtures thereof, and this without license so to do, against the peace and dignity of
the Commonwealth of Kentuck}'.
No. 27. Indictment for Carrying Concealed a Deadly Weapon.
[See note 83 to sec. 122 ; and note 5 to sec. 124; and Ky. Stat., sec. 1309.]
'The Commonwealth of Kentucky 'J Circuit Court.
John Smith. J
The grand jury of county, in the name and by the authority of the Com
monwealth of Kentucky, accuse John Smith of the offense of carrying concealed
upon and about his person a deadly weapon, committed as follows, viz.: The said
John Smith, on the of , 189 — , in the county aforesaid, did unlawfully carrj'
concealed upon and about his person a deadly weapon other than an ordinary pocket
knife, to-wit,a pistol, against the peace and dignity of the Commonwealth of Ken
tucky.
No. 28. Indictment for Selling Liquor to a Minor.
[See notes 71, 72, to sec. 122; .and Ky. Stat., sec. 1306.]
The Commonwealth of Kentucky 1 ^— OracuiT Court.
vs. \
John Smith. J
The grand jury of county, in the name and by the authority of the Com-
monwealth of Kentucky, accuse John Smith of the offense of furnishing spirituous
liquors to a minor not his own child, committed as follows, viz.; The said John
Smith did, on the of , 189 — , in the county aforesaid, unlawfully sell, lend
and give spirituous liquors, viz.: Whisky and mixtures of same to John Speed, a
person then under twenty-one years of age, other than his own child ; and without
-special written directions so to do, specifying the said John Speed and the quantity
to be furnished to him, from the father or guardian of said minor, against the peace
iand dignity of the Commonwealth of Kentucky.
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CRIMINAL COPB FORMS-^PLSAPINGS OF THS PEFfiNDANT. 671
PLEADINGS OP THE DEPENDANT.
[Sees. 164, 173.]
Demnrrer.
The Commonwealth of Kentucky, Plaintiff, \
vs. V
John Smith, Defendant. J
The defendant demurs'to the Indictment.
Plea.
The Commonwealth of Kentucky, Plaintiff, \
vs. \
John Smith, Defendant. )
The defendant pleads that he is guilty of the offense charged in the indictment.
OR
The defendant pleads that he is not guilty of the offense charged in the indict-
ment.
OR
The defendant pleads that he has been acquitted of the offense charged in the
indictment, by the judgment of the Circuit Court, rendered on the of .
189 — [or by judgment of the Court, a court having jurisdiction to try the
•defendant for said offense, rendered on the of *, 189 — ].
OR
The defendant pleads that he has been convicted of the offense diarged in the
indictment, by the judgment of the Circuit Court, rendered on the — of ,
189— [or by Judgment of the Court, a court having jurisdiction to try the
defendant for said offense, rendered on the of — , 189 — ].
ORDERS OP COURT.
Order for Process on lodictmeats.
[Sec. 141.]
•Commonwealth of Kentucky, Plaintiff, ^ CmCtnT OotTRT.
vs, V
John Smith, Defendant j
It is ordered that a bench warrant issue for the arrest of the defendant, allow-
ing him to give bail in the sum of — ^ dollars.
OR [if the offense be not bailable]
It is ordered that a bench warrant issue for the arrest and oommittal to jail of
the defendant.
OR
It is ordered that a summons issue on the indictment herein. < '
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672 CRIMINAL CODE FORMS — ORDERS OP COURT.
Order for a Beoch Warrant Alter the Defeadaat Has Given BaiL
[Sec. 09.]
Commonwealth of Kentucky, Plaintiff, j Cikcuit Court.
vs. y
John Smith, Defendant. j
It appearing that the defendant has failed to appear in pursuance of the under-
taking of his bail [or that the bail taken herein is insufficient, or that the offense for
which defendant is indicted is not bailable], it is ordered that a bench warrant issue
for the arrest of the defendant, allowing him to give bail in the sum of dollars
[or that a .bench warrant issue for the arrest and committal to jail of the defendant,
if the offense be not bailable.]
Order Upon Ascertaining the Defendant's True Name.
[Sec. 125.]
Commonwealth of Kentucky, Plaintiff, ^ Cnicurr Coubt.
V8, >
John Smith, Defendant. )
It appearing to the satisfaction of the court that the defendant's name is John
Jones, it is ordered that the further proceedings in this case shall be in defendant's
true name of John Jones, indicted by the name of John Smith.
Order Setting Aside an Indictment and Orderioi; Case Resubmitted.
[Sec. 150.]
Commonwealth of Kentucky, Plaintiff, ^ Cikcuit Court.
V8. f
John Smith, Defendant. J
The defendant moved the court to set aside the indictment, on the ground that
thA grand jury had been illegally summoned and impaneled [or other ground,
according to the facts], and the court being sufficiently advised, it is ordered that
the indictment be set aside, and the charge against the defendant be submitted to
another grand jury, and the defendant be committed to jail to await the action of
such grand jury [or that the defendant be admitted to give bail in the sum of
dollars, for his appearance to answer the charge].
Order for the Removal of the Defendant to Another Court, on its Appearing That
the Offense was Committed Within the Jurisdiction of Such Court
[Sees. 166, 167, 230.]
Commonwealth of Kentucky, Plaintiff, \ Cikcuit Court.
vs. y
John Smith, Defendant. j
It appearing to the satisfaction of the court, that the offense charged in the
indictment was committed in county, it is ordered that the jury herein be dis-
charged, and that the clerk transmit to the clerk of the Circuit Court a copy of
the indictment and of this order, and also all the original papers of the prosecution,
including the bail bond (if any), and that the sheriff carry and deliver the defendant,
with a copy of this order, to the jailer of county [or, that the defendant be
required to appear in the Circuit Court, to answer the charge (t^ he have givtn
bail)^ or that the defendant be allowed to give bail in the sum of dollars, for his
appearance in the Circuit Court, to answer the charge].
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CRIMDUL CODE FORMS— 0U>££6 OF OOU&T. 678
Order UpM Mi Afptari^f Hmt Ike Offene was dmrnHM is Aaetter State.
[Sec. 231.]
The CommoBweftlth of Kentucky, Plaintiff, 1 CmcuiT Coubt.
John Smith, Defendant. f
It appearing to the Mtitfiction of the court, that the offense charged in the in-
dictment was commiOed in the State of -**, it is oidered thai the jurj herein be
discharged, and that the defendant be oomnitted to Jaii to await a requisition for
him by the governor of , and the Ck>mmon wealth's attorney is directed to give
information hereof to the governor of ; but, if no requisition be made for the
defendant before the tlrst day of , 18(^, he shall be discharged from jail.
Jadgmeot If the Panishment be Death.
[Sec. 290.]
The Commonwealth of Kentucky, Plaintiff, \ Circitit Court.
John Smith, Defendant. I
The defendant was this day brought into court, and being informed of the
nature of the indictment, plea and verdict, was asked if he had any legal cause to
show why judgment should not be pronounced against him ; and none being shown,
it is adjudged by the court that the defendant be taken to the jail of county,
and there safely kept until the of ^ 18<>— , on which day, between sunrise
and sunset, the sheriff of county shall hang him by the neck until he is dead.
Judgment if the Punishment be Confinement In the Penitentiary.
[Sec. 284.]
The Commonwealth of Kentaclcy, Plaintiff, ) CiscinT OoCTf!.
John Smith, Defendant. )
The defendant was this day brought into court, and being informed of the
nature of the indictment, plea and verdict, was asked if he had any legal cause to
show why judgment should not be pronounced against him; and none being shown,
it is adjudged that the defendant be taken, by the sheriff of county, to the
State penitentiary, and there confined at hard labor for the period of years.
Judgment for Hne and Imprisonment.
[Sec. 291, and Ky. Stat., sec. 1377.]
The Commonwealtb of Kentucky, Plaintiff, ) — Circuit Oottrt.
V8 V
John Smith, I>efeiidant. j
The jury impaneled herein returned the following verdict: ** We, of the jury,
find the defendant guilty and affix his punishment at a fine of dollars and con-
finement in the county jail for six months. J. Dudley, Foreman." Wherefore, it
is adjudged that the plaintiff recover of the defendant the sum of dollars and
the costs of this prosecution, and that the defendant be confined in the Jail of
county for the period of six months ; and when said period of confinement shall have
terminated the defendant shall be retained in confinement until the fine aforesaid
be paid, but the period of such confinement for the non-payment of the fine shall
not exceed one day for each two dollars of the floe.
(48)
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674 CRIMINAL CODE FORMS — ^APPEALS TO THE COURT OF APPEALS.
Jadsmeot of Removal from Office for Malfeasasce in Office,
[Sec. 292.]
The Commonwealth of Kentucky, Plaintiff, ^ Cibcuit Court.
John Smith, Sheriff of -^ county, Defendant, j
It appearing by the verdict that the defendant has been guilty of an offense
which creates a forfeiture of his office of sheriff of — — county, it is adjudged that
the defendant be removed from his office of sheriff of county, and said office
is hereby adjudged to be vacant by said removal.
[If any other punishment be affixed to the offense, judgment for that punish-
ment should precede the judgment of removal.]
B1LL0PEXCEI>T10NS.
See form of and rules for preparing, pages 645, 646.
APPEALS TO TflE COURT OF APPEALS.
Order Noting the IH-ayer for an Appeal, in Cases of Felony, by tlie Defendant
[Sec. 336.]
The Commonwealth of Kentucky, Plaintiff, "J — CntcuiT Coubt.
V8, \
John Smith, Defendant. j
The defendant prayed an appeal from the judgment herein to the Court of
Appeals, which is granted, and, on motion of the defendant, it is ordered that the
execution of the judgment herein be suspended for the period of sixty days from
the date of said judgment, [or until sixty days after his bill of exceptions shall be
signed and made part of the record, if time have been given to file a bill of excep-
tions.]
Order Noting Prayer for Appeal, in Cases of Felony, by Commonwealtli.
[Sec. 337.]
The Commonwealth of Kentucky, Plaintiff, l Cmcurr Court.
John Smith, Defendant. j
The plaintiff prayed an appeal from the decision of court rendered herein,
instructing the jury that they should find for the defendant [reciting the decision
from which the appeal is prayed ; or if from the final judgment, the form is the
same as is given for the defendant.]
Certificate of the Appeal Being Taken in Cases of Felony.
[Sec. 336.]
John Smith, Appellant, ) Coubt op Appeals of Kkntuckt.
V8. \
The Commonwealth of Kentucky, Appellee. J
I, , clerk of the Court of Appeals of Kentucky, do certify that John Smith
has this day taken an appeal in the manner and form prescribed by law, from a
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CRIMINAL CODE FORMS — ^APPEALS TO THE COURT OF APPEALS. 675
judgment of the — — Circuit Court, rendered at its term, 189—, In the case of
the Commonwealth of Kentucky, plaintiff, against John Smith, defendant, for the
confinement of the defendant in the State penitentiary at hard labor for the period
of years ; it is therefore ordered that the execution of said judgment be sus-
pended.
Witness my hand, this of , 189—. , Clerk C. A.
Order Qrantlni: an Appeal in Cases of Misdemeanor.
[Sec. 348.]
The Commonwealth of Kentucky, Plaintiflf, ) • CrRcurr Coukt.
vs. J.
John Smith, Defendant. )
The defendant prayed an appeal from the judgment herein to the Court of
Appeals, which is granted, upon condition that he lodge in the clerk's office of said
court a transcript of the record in sixty days from the date of the judgment.
[The same form may be used if the appeal be prayed by the plaintiff.]
Supersedeas Bond in Cases of Misdemeanor.
[Sec. 349.]
The Commonwealth of Kentucky, Plaintiff, ) Cibcuit Coubt.
John Smith, Defendant. J
The defendant, John Smith, having prayed an appeal from the judgment of the
Circuit Court, rendered herein against him at its term, 189 — , for a fine of
dollars and costs, and imprisonment in the jail of county for months, now
we covenant to and with the plaintiff that if said judgment be affirmed, we will pay
said fine and costs, and all damages thereon, and the costs of the appeal, and that
the defendant will surrender himself in execution of the judgment of imprison-
ment ; or, if he fail to do so, that we will pay to the plaintiflf two dollars for each
day of the imprisonment adjudged.
Witness our hands, this , 189 — . John Smith.
Thomas Jones.
George Smith.
Taken and subscribed before me, as clerk of the Circuit Court, this
of , 189—. S. J., C. — C. C.
[It is not necessary that the defendant should sign this bond.]
Supersedeas in Cases of Misdemeanor.
[Sec. 349.]
John Smith, Appellant, ") Coubt of Appeals of Kentucky.
The Commonwealth of Kentucky, Appellee. J
I, , clerk of the Court of Appeals of Kentucky, do certify that the appel*
lant, John Smith, has taken an appeal from the judgment of the Circuit
Court, rendered at its term, 189 — , in favor of the Commonwealth of Kentucky,
against him for a fine of dollars and costs, and for his imprisonment in the
county jail for months, and has executed a supersedeas bond agreeably to law, a
transcript of which, and of the record, has been filed in my office. Therefore, the
execution of said judgment is suspended.
Given under my hand, this , 189 — . , C. C. A.
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676 OBDUVAL CODB rOKMfl — ^APPBALS TO GIBOUII OOUET&
APPEALS TO CHtCUrr COURTS.
Appeal Bond.
[Sec. 364.]
John Smith, Appellant, \ CiBCurr Coxtrt.
V8. \
The Commonwealth of Kentucky, Appellee. )
John Smith having prayed an appeal to the Circuit Court, from the judg-
ment rendered, on the of , 189 — , by — , a Justice of the peace of
county, against said appellant for a fine of dollars and costs ; now if said judg-
ment be affirmed, we covenant to pay the costs of the appeal.
Witness our hands, this of , 189-*-. Tsomab Jonbs.
GbobgbSmitb.
Taken and subscribed before me, as clerk of the Circuit Court, this of
, 189—. S. J., C. -^ C. C.
Appeal and Sapenedeas BomL
[Sec. 364.]
John Smith, Appellant* J Circuit Coubx;
V8, >
The Commonwealth of Kentucky, Appellee. J
John Smith having prayed an appeal to the Circuit Court, from the judg-
ment rendered, on the of , 189 — , by , a justice of the peace for
county, against said appellant for a fine of dollars and costs, now, if said judg-
ment be affirmed, we covenant to pay the costs of appeal ; and also that the said
John Smith will perform the judgment which shall be rendered against him on
the appeal, and if the judgment be for imprisonment, and said John Smith fail to
surrender himself in execution thereof, that we will pay to the Commonwealth of
Kentucky the sum of two dollars for each day of imprisonment adjudged against him.
Witness our hands, this of , 189 — . Thomas Jones.
Gboboe Smith.
Taken and'subscribed before me, as clerk of the Circuit Court, this — of
, 189— w S. J., C. — O. O.
Svpersedeaa.
[Sec. 364.]
John Smith, Apoellant, "j CiBOUlT Coubt.
V8. >
The Commonwealth of Kentucky, Appellee. J
I do certify that John Smith has pmyed an appeal to the Circait Court,
from a judgment rendered on the of , 189—, by , a justice of the peace
for — county, against him for a fine of — ^ dollars and costs, and bus duly exe-
cuted an appeal and supersedeas bond. Therefore, the execution of said Judgment
is suspended
Given under my hand, as clerk of said court, this — of , 189—%
a J,, c. — c. c.
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CRIMINAL CODE FORMS — CAPIAS PRO FIKB. 677
Certificate of Appeal.
[Sec. 364.]
John Smith, Appellant^ 1 Cibcuit Court.
The Commonwealth of Kentucky, Apx>ellee. j
I do certify that John Smith has taken an appeal to the Circuit Court, from
a judgment rendered on the of , 189 — , by , justice of the peace for
county, against him for a fine of dollars and eosta.
Given under my hand, aa clerk of said court, this of , 180—
8. J., 0. — C. 0.
CAPIAS PRO FINE
Execution Upon Judgment of Circuit Court in Penal Prosecution.
[Sec. 301.]
The Commonweallh of Kentucky to the Sheriff of County:
We command you to take the body of , late of said county, if he be found
within the same, and him safely keep until he shall satisfy us dollars, which
we, late in our circuit court, recovered against him for a fine assessed against him
for [giving the offense as charged in the indictment] against our peace and dignity ;
also, the sum of dollars, which to us in the same court was adjudged for our
costs in that behalf ; whereof the said is convict, as appears to us of record ; and
how 3'ou shall have executed this writ make known to our judge of our said court,
at the court-house thereof, in the city of , on the of , 189 — , and have
then there this writ
Witness S. J., clerk of our said court, at the court-house aforesaid, this of
, 180—. 8. J., C. — C. C.
Execution for a Pine Upon a Juttgneot of a Justice of the Peace.
[Sec. 333.]
The Commonwealth cf Kentucky to any Coneiable of — ^ County :
You are commanded to take the body of Charles Bell, late of said county, and
him safely keep until he shall satisfy the said Commonwealth the sum of dol-
lars, which the said Commonwealth recovered before me, as justice of the peace for
said county, for a fine for a breach of the peace [or other offense, as the case may be];
also, the sum of dollars, which to the said Commonwealth before me was ad-
judged for her Qoatsin that behalf expended ; whereof the said Charles Bell is oonvict,
as appears to me of record ; and that you make due return hereof in sixty days to
me at my office. Given under my hand, this of , 189 — .
W. E., J. P. — C.
Execution Against Property an4 on Replevin BomL
[Sees. 801, 802, 800.]
See EzscuTiOKS, page 688.
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678 CRIMINAL CODE FORMS — HABEAS CORPUS.
HABEAS CORPUS.
Writ of Habeas Corpus.
[Sec. 402.]
The Chmmonwealih of Kentucky to Lewie Jackson^ of the County of .
We command you, that you have the body of Willis Strother, detained in your
custody, as it is said, together with the day and cause of his being taken, at the
court-house of the county in which this writ was served, before the circuit Judge of
said county, on , the of , 189 — , at the hour of nine o'clock of the fore-
noon of said day ; and that you then and there state in writing the cause of detain-
ing the said Willis Strother, and produce your authority for so doing; and hereof
you are not to fail, under the penalties denounced by law against those who disobey
this writ, and to submit to and receive all those things which shall then and there
be adjudged in this behalf.
Witness my hand, as police Judge of the town of •. , this of , 189—.
R. P., P. J. .
Indorsement Changing the Time for Return to the Writ.
, , . [Sec. 403.]
Commonwealth of Kentucky, County of .
The within writ having been served this day, but at such time as renders it
impossible for Lewis Jackson to obey the same at the time therein specified, the
time for said Jackson to produce the body of Willis Strother, and make return to
said writ, is changed from the of , 189 — , to the of , 189 — , at ten
o*clock in the forenoon. J. W., 8. — G
Notice of the Change of Time for Return to the Writ, to be Given to the Person on
Whose Application it is Issued.
[Sec. 408.]
Robert Calvert , Esq,:
You are hereby notified that the time for the return to the writ of habeas eorpus
issued on your application, in behalf of Willis Strother, against Lewis Jackson, has
been changed from the of , 189 — , to the of , 189 — , at ten o'clock
A. M., as appears from the indorsement made by me upon said writ, of which the
following is a copy, viz.: [here copy the indorsement]. J.W., S. — C.
Bond that the Person Detained Shall Not Escape, and for Payment of Costs.
[Sec. 404.]
A writ of habeas corpus having been applied for in behalf of Willis Strother, said
to be unlawfully detained by Lewis Jackson, we, Thomas Smith and Samuel John-
son, hereby covenant with the Commonwealth of Kentucky, in the penal sum of
$ , that said Willis Strother shall not escape while he is being brought to the
place at which he is commanded to be produced by said writ, and if he so escapes
we will pay to the Commonwealth of Kentucky the said sum of $ . And we
V
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OBIMINAL CODE FORMS — HABEAS CORPUS. 679
further agree to pay such costs and charges as may be lawfully awarded against
the said Willis Strother, upon the trial under said writ*
Witness our hands, this day of , 180—. Thomas Smith.
Samuel Johnson.
Taken and subscribed before me, as police Judge of the town of , this
of , 18d— . R. P., P. J. — .
Attachment Against Person Refusing Obedience to Writ
[Sec. 409.]
TTie OommamoeaUh of Kentucky to any Sheriffs Cktroner^ Oonstable, Jailer, Marshal or
PoHeeman in this State :
You are commanded forthwith to arrest Lewis Jackson, and bring him at once
before me to answer for disobedience in refusing to obey the writ of habeas corpus
lately served upon him, requiring him to bring before the circuit Judge of
county, at the court-house in , the body of Willis Strother, and then and there
have this writ, with due return how you have executed it.
Given under my hand, as police Judge of , this the of , 180—.
B. p., P» J» — •
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INDEX TO CIVIL CODE.
■aonov.
Error as to form of action Dot cause
for
On judgment before debt matures,
sub. 3, 247
8
Trial of right of property under
sheriff 659
Writ of injunction 271
Ne exeat 688
(^uo warranto ... ...•••. 480
Scire facial against bail 179
Akfcoadins deMor—
Attachment of property of . .
194
Absence from Keitacky—
Four months authorizes attach-
ment, sub. 2 194
authorizes warning order, sub. 4 . 57
Plaintiff's affidavit proof of, unless
controverted, sub. 6 58
Abseit defendant-
Attachment of property of .
See OoHSTBUCTiVE Sbbyicb.
See Non-residents.
Accident-
Ground for new trial, sub. 3 .
194
340
Acconnt—
Copy of to be filed with pleading • 120
Settlement of accounts of fidu-
ciaries 471
Testimony concerning, against de-
cedent, sub. 7 606
Account book —
Testimony as to entries in, sub. 7 . 606
Acknowledfnient —
Subpcena, equivalent to service . . 533
Summons, equivalent to service . . 50
Action for nMney—
Includes, what ? sub. 8 .
732
Actions-
Absent defendant against ... 58, 408
deemed Ijefore court, when . • . 60
Alimony for 420
venue of 76
Assignee by 19
Assignment, pending 20
Bail, against 172
Bank, against 71
Bill of exchange, on .19, 26
Board of education, against .... 68
Cause of stricken from pleading 84, 371
Charter to vacate 480
to repeal 480
Checkon 19, 26
Code applies to all 16
Commencement of 39
Committed by 21
Common carrier, against 73
Contractor for public work, against 77
Contracts, on 26, 27
successive, on 686
Corporations generally, against . . 72
Counter-claim is, sub. 34 782
Cross-action in action to enforce lien 682
Curator, by 21
Defendant constructively summon-
ed, against 75
Debt, before maturity of 237
Decedents* estate, to settle . . 60, 428
distribute 66
partition 66
sell 66
Discovery, for 685
Dismissal for want of parties . 28, 371
by court 113, 371
of part of 84
without prejudice 371
Division of lands 499
.Divorce, for 76, 420
Dower, to allot 499
Election of causes of 85
Embraces, what, sub. 34 732
Equitable, when to be 6
Error as to form of, how cor-
rected 8, 9
Executor, against 31
Fiduciaries generally, by 21
Fine, to recover 63
Form of 4
Franchise, to prevent usurpation of 480
Garnishees, against 237
(681)
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682
INDBX TO OlVn. CODE,
Bxonoir.
Actkuis — Continued.
Guardian, against 67
by 21
Idiot, by 85
against 36
real estate of, to sell 489
Infant, by 35
against 86
real estate of, to sell 480
Injury to character, for 74
person 74
Inmate of asylum, against .... 69
Insurance company, against .... 71
Joinder, of causes of 83, 118
Joint owners, for sale of property of 490
Judgment to enforce 70
Justices' courts, in 700
Land, to recover 125
divide 499
lien on, to enforce 125, 692
Libel, for 123
Lien to enforce 692, 694
Lost writing, on 7
Lunatic, by 35
against 86
real estate of, to sell 489
Married woman, by and against . . 84
Meaning of word, action, sub. 84 . 782
Misjoinder of, how corrected ... 85
Money for, includes damages, sub. 8, 782
Name in which to be brought ... 18
Negotiable instruments on ... . 26
New parties in 28
New trial for 520
Non-resident against 408
** No property found, "on . . . .70, 489
Numerous parties, by or against,
some for all 25
OfRce, to prevent usurpation of . . 480
Officer, against 68
Order, on 19, 26
Ordinary, when to be 5, 6
Parties jointly bound, against ... 27
generally against 26
interested to be joined 24
numerous, by or against, some for
all 25
Party in interest, to be in name of . 18
Penalty, to recover 68
Personal property, to recover . . . 180
Personal representative, against . . 21
Police courts in 700
Prisoner, against 69
Promissory note, on 19, 26
Property distrained, to recover . . 83
Quarterly courts, in 700
Railroad, against 78
Real property, to recover, venue . . 62
Remainders, to sell 491
Removal of to U. S. Courts, page 580
defendant, after commencement
of, effect 82
Reversions, to sell ........ 491
Revivor of 500
Actioiis — Coniimied,
Sale of property for debt 604
Joint owners, sale of property of . 490
persons under disability of . . . 489
Settlement of estates of decedents . 428
trust estates 438
Set-off is action, sub. 34 732
Slander, for 123
Special proceedings are, sub. 34 . . 732
Striking out cause of 84, 85
all or part of 113, 371
Surety by after maturity of debt 661, 693
against \ 693
Transfer of, to proper docket ... 8
court may 10
defendant may move to 10
from one court to another ... 13
jury trial for 11, 12
Trustee, by 21
United States Courts, to, page 580
Unknown defendant, against . 408, 691
Unnecessarily multiplied, plaintiff
to pay costs ......... 687
Venue of. See Venue of Actions.
Witness against, when not allowed . 542
Writing, lost or mutilated, on . . . 7
Acti-
Mode of counting days between . . 681
Performance of, by a majority . . 679
Private of Legislature, how pleaded 119
Actual service —
See Summons 47
Adjoommeit —
Taking of depositions conoem-
ing. 668» 570
Admialstrator—
See Rbpresentativb.
Admitsioi —
Express not necessary In plea of
avoidance or estoppel, sub. 6 . 113
Failure of non-resident to deny alle-
gation is when 409
of party to deny allegations is . . 126
to deny statements in petition
for divorce is not 422
Genuineness of writings filed, when
admitted 527
Offer to confess judgment is not • • 640
Admonltioa —
Jury to, before separation 820
Adverse party —
May be required to testify,
when 149, 606
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INDBX TO ClVUi OODB.
683
AdverttseoMflt—
Creditors to, Id action to settle es-
tates 430, 431
in action to settle trust estate . . 438
Sales, made under order of court . 696
attached property of 218
Affiut—
Obtaining provisional remedy, may
be examined 548
Affidavits-
Affiant obtaining provisional rem-
edy may be examined .... 548
Agent may make 550
Agreed case ; affidavit as to .... 637
Amendment of, in attachment . . • 268
Arrest and bail. See Arrest and
Bail 152
motion concerning bail in cases of 178
Attachment. See Attachment . . 194
before sale of real property under 230
grounds of, controverted by . . . 263
Attorney may make, when .... 550
Before whom made in State .... 519
out of State 549
Bill of exceptions attested by . . . 387
Claims against decedents' estates to 437
Claim and delivery. See Claim and
Attachment 181
Clerk may take 671
Constructive service. See Con-
structive Service 58
Continuance for 315
Decedents* estate, claim against . 437
Definition of 544
Evidence by 543
Evidence, to petition to perpetuate 610
Examination of person making . . 548
Exceptions, bill of, attested by . . . 337
FoTTM cf, page 627.
Holiday may be made on 664
How made 551
Injunction to obtain 273
read on application for 277
on trial of, to be filed 287
Judgment in proceedings to va-
cate 520
New trial, on motion for 343
Officers before whom made . . . . 549
out of State 549
Purposes for which may be used . . 547
Subpoena, proof of service of . . . 533
Subscription of by affiant 551
Summons, proof of service of . . . 47
Sureties in bonds to make 683
Trust estates, claim against .... 438
Verification of, pleadings by . 116, 117
Warning order for 58
Witness, to secure personal attend-
ance of 556
AffirouMce—
Damages on, when superseded . . 764
Proceedings on, in court below . . 761
Affinnatioa—
Includes oath, sub. 28 732
Person may make in place of oath . 680
AffirBothre—
Party holding must prove it ... . 525
Afeit—
Affidavit of, generally 550
to verify pleadings 117
warning order for 58
Chief agent of corporation, sub. 33, 732
Notice, service of on 625, 628
Summons may be served on, when . 51
Warning order, on affidavit of . . . 58
Afreed<
Judgment in 639
Record of, what constitutes .... 688
Submission of to court 637
AUmoay—
Action for, in equity 420
Interrogatories concerning property 421
Maintenance allowed pending ac-
tion 424
Pleadings need not be verified . . . 421
Venue of action for 76
Wife may sue alone 34
Allcfatioas—
Admitted, if not denied 126
Alternative allowed, sub. 4 . . . . 113
Amendment of 134
party in fault to pay costs, sub. 5, 113
without verification 139
Inconsistent, to be stricken out,
sub. 4, 113
Indefinite or uncertain, amendment
of 134
Irrelevant or redundant, stricken
out 121
Insertion of, allowed 134
Material, what are 127
Non-resident against, when taken
as true 409
Traverse of, necessary 126
defined, sub. 7 113
Verification at any time before trial 137
waiver of objection for want of . 116
Altotn^nt of dow^r^
Provisions as to . .
499
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684
Ufl>MX TO CIVIL OODI.
Allowaflce—
Wife to pending action for alimonj
or divorce
^4
Alteraatlv€ pleadlafs—
When allowed, sub. 4 118
Am^ndm^at—
Affidavit to obtain attachment,
sub. 2, 2Gg
Bond, defective • . . C83
Continuance upon 136
Costs paid by party in fault, sub. 5, 113
after demurrer sustained .... 94
Defective pleading to cure 134
Demurrer after 94
Depositions, certificate to, sub. 3 . . 588
Discretion of court in allowing . . 134
Errors in pleading, cured by . . . 134
Error as to form of action corrected
by . . 8
Mistake in pleading corrected by . 134
Name of party to correct 134
Notice of, when to be given .... 132
Petition before answer filed .... 132
Pleadings, generally 134
after demurrer, sustained . • . . 94
costs upon, sub. 5 113
during vacation, sub. 2 .... . 109
petition before answer 132
variance in, to cure 129, 130
Proof, to conform to . . . 129, 130, 134
Return on summons 49
Summons, return on 49
Transcript of record in Court of Ap-
peals, sub. 1 743
Vacation, filing of in 109
Variance, corrected by . . 129, 130, 134
Verification of, court may dispense
with 139
Without leave of court 132
Aaendm^ats to Cod€, aa4 acti^-e
Affidavit for warning order by one
plaintiff, sub. 2 550
Appeal, notice of motion to dismiss 757
after accepting satisfaction of
judgment 757
damages against corporation upon
affirmance or dismissal . . . 764
Arrest, order of may be granted by
clerk 738
Assignment of errors not required . 737
Attachment, notice to garnishee,
sub. 2, 203
in certain actions clerk may issue 238
Bill of exceptions, time to pre-
pare 384, 837
Bond, Commonwealth not required
to execute to non-resident . . 411
refunding bond, legatee or dis-
tributee to give 435
8VCTXOV.
Aaieataeots to Code, aad Eds^^Omiimied,
Clerk may grant attachmeni In cer-
tain actions 23S
may grant order of arrest in cer-
tain actions 2S8
Commonwealth not required to exe-
cute bond to non-resident . . 411
Contract, variance between pleading
and proof 131
Corporations, damages against on
appeal 764
service of summons on (3 amd) . 51
Damages against corporations on
affirmance of appeal 764
Depositions may be retaken in re-
buttal without leave .... 553
in divorce cases, how may be
' taken 574
to be used out of this State ... 591
Divorce, how depositions in may be
taken 574
proof of statements of petition . 422
Error, assignment of not required . 737
must be substantial to authorise
reversal 756
Exceptions, bill of, time to pre-
pare 834, 337
Failure of proof, what not to be
deemed 131
Garnishee, notice to, sub. 3 . . . . 203
Infant, service of summons on . . . 52
Injunction granted by clerk, mo-
lion to dissolve 290
amendment of, sees. 271, 273, 276,
286, 289, 290, 296, 297, 747 . .
Judgment, appeal from after ac-
cepting satisfaction of ... . 757
Justices' courts, district in which
action is to be tried 710
Land, sale of when held in trust . 496
Mandamus, amendment of May 15,
1886, repealed 475
Married women, concerning .... 34
New trial, time to apply for, when
special verdict 342
Non-resident, State not required to
givjp bond to 411
service of summons, on 51
service of petition, on 56
Notice of motion to dismiss appeal . 757
to garnishee, sub. 3 208
Person of unsound mind, service of
summons on 53
Refunding bond to legatee or dis-
tributee 435
Revivor of action may be by peti-
tion 501
Sale of land held in trust 496
of persons under disability, sub. 5, 498
Separation of witnesses ...... 601
Special verdict, not allowed .... 337
time to apply for new trial, when
verdict special 342
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INDEX TO OITn. OODS.
686
sxonoN.
Amendneots to Code, aai jwto ConiimtmL
Summons, service of oo infant ... 52
service of on person of unsound
mind 53
Trial of setroff or counter-claim
in inferior court 720
of equitable actions • 364
in inferior courts 710
Transcript, additional may be filed 756
Transfer of actions from one docket
to other 10
Variance between pleading and
proof, what is not 131
Verdict, special not allowed .... 327
Warning order, aflBdavit for by one
plaintiff, sub. 2 550
Court of Appeals, in 736
Witnesses, separation of 601
Acte—
Comparison of liandwritiags .... 604
Dower, sale of, lunatics' inchoate
rightof 495
release of, by wife of insane hus-
band 405
Elisor, may execute process .... 667
Forcible entry and detainer, judge
to try 454
Land, partition of 409
Settlements, recording of 472
Aaout la coBtrorersy—-
Appeal to Court of Appeals, what
authorizes, page 547.
to circuit court, what author-
ises, page 548.
to quarterly court, what author-
izes, page 549.
Exceeding ten dollars, appeal al-
lowed from judgment on bond 655
Judgment not exceeding twenty -five
dollars, can not be enjoined . 284
Answer^
Allegations not traversed admitted 126
that must be proved 126
Amendment after demurrer .... 94
generally 134
may be filed in vacation 109
without verification 139
Avoidance, plea of, in 95
Caption of, generally, sub. 1 . . . . 1 10
if counter-claim or set-off pleaded,
sub. 4, 97
Causes of, defense that may be
steted, sub. 2 113, 95
Claimants' petition taken as ... . 29
Contents of 95
Costs of amending, party in fault to
pay, sub. 5 113, 94
Counter-claim need not be stated in 17
may be pleaded in 96
to be stated in caption, sub. 4 . 97
SaOTXON.
Answer— ConHnued,
Cross -petition, in, sub. 3 96
Defendant constructively summon-
ed, when may file 414
defense by, when due 102
may file any time before judgment 408
petition when taken as true
against 409
Defense that may be stated in,
sub. 2 113, 95
Demurrer to, generally 93
filed in vacation ........ 109
filed to part of, sub. 1 113
special 92
Denial, generally, sub. 7 . . . . 113, 126
inconsistent, not allowed, sub. 4 . 113
of knowledge or information,
sub. 7 113
may be in the alternative, sub. 4 113
must be specific 126
Equitable action, when to be filed, 102, 104
Estoppel, plea of, in 95
Failure to file, judgment . 1!W, 379, 380
Filing in vacation 108
after demurrer overruled .... 133
defect to cure in vacation .... 108
time given for 107
Fhrms of, pages 617, 628.
Information or knowledge, denial
of. sub. 7 113
Interrogatories annexed to . 140, 143, 716
Judgment for part not controverted
^y 300
upon failure to file 126, 379
Knowledge or information, denial of,
sub. 7 113
Land to recover, in action 125
Libel, in action for 124
New parties may be made by . . . 23
Objection to petition shown by . . 118
Ordinary action, when to be filed. 102
Paragraphing, when required, sub. 3 113
Petition, defect in, shown by . . . 118
may prevent partial defense to
sub. 2. 113
Prayer for relief in 97
Set-off need not be pleaded in . . . 17
may be pleaded In 96
to be stated in caption if plead-
ed, sub. 4 97
Slander, in action for 124
Striking out cause of action in . . . 84
Supplemental, when allowed . . . 135
Time for filing, in equitable ac-
tions 102, 104
may be extended 107
ordinary actions in 102
Traverse In, definition of, sub. 7 . . 113
inconsistent, not allowed, sub. 4 . 113
may be in the alternative, sub. 4 113
must be specific 126
Vacation, filing of in, notice of . . 108
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686
INDEX TO CIVIL CODE.
8XOTION.
Answer— Chntinued.
Verification of, generally 116
after trial begins, not necessary . 138
alimony and divorce, not neces-
sary 421
division of land, allotment of
dower not necessary, sub. 14 . 499
interrogatories annexed to . . . 148
judgments to enforce, satisfaction
of 440
who must verify 117
Writings that must be filed with . . 120
relied on as evidence 128
Answers to interrosatories —
See Intebbooatories 140
Appeals—
Court of Appeals to.
Affirmance of judgment, damages 764
proceedings upon in court below,
sub. 1, 761
Amount, necessary to give jurisdic-
tion, page 547.
Appearance, who may enter and ef-
fect, sub. 5 737
Appellant, who is 735
Appellee, who is 735
Appeal granted as matter of right . 734
granted by lower court, when rec-
ord to be filed 738
how taken in Court of Appeals . 734
when granted by lower court . . 734
when shall not be granted . . . 745
Assignment of errors repealed . . . 737
Attachment, from final order dis-
posing of 266, 267
Attorney for absent defendant, ap-
pointment, sub. 3 736
Bond, supersedeas— -See Supebse-
DEAS, infra.
Certiorari, court may direct writ to
issue, sub. 1 743
party may have writ of, when . 742
Circuit court, from, page 547.
Costs, appellant may be required to
secure 744
Cross-appeal, how taken, sub. 1 . . 755
not prevented by dismissal of ap-
peal or failure to take, sub. 3, 755
right to take, when barred, sub. 2, 755
Damages upon alBrmance or dis-
missal 704
Delay case, disposition of 759
Dismissal of, damages upon .... 764
does not prevent cross- appeal,
sub. 3 755
for failure to file transcript ... 740
motion for to be In writing . . . 757
motion for, when to be heard . . 757
Docket of, to be arranged by clerk,
sub. 1, 754
Appeals— Continued.
Docket of, to be printed, sub. 2 . . 754
what appeals shall not be placed
on 740
Dower, from allotment of, sub. 12 . 499
Enforcement of mandate 762
Errors appearing in record ground
for reversal 514
must be substantial . . . 338, 756
not ground for appeal until acted
on in lower court 516
that must be acted on in lower
court before 516. 763
Final orders, that may be appealed
from 266, 298
Filing transcript. See Transcript,
infra.
Form of bond and orders concern-
ing. See Forms.
Granting of 734
Judgment, filing copy of, authorizes 734
for what errors reversed . . 338. 756
what errors not reversed, until
motion made to correct • 516, 763
Jurisdiction, page 547.
Land, from division of, sub. 12 . . 499
Limitation of, right to 745
Mandamus in 475
Mandate, enforcement of 762
proceedings on in court below . . 761
when to issue 760
Misprision, not ground for, until . . 516
Motion to affirm as delay case . • . 759
to dismiss 757
to correct errors before appeal . 763
to discharge supersedeas .... 750
Opinions, reporter's duty concern-
ing 766
to be in writing 765
Parties to 735
Pleas on, when allowed 758
Printing of docket of 754
Receiver, from orders concerning . 298
Records of. See Transcripts, infra.
Rehearing, rules to for be made by
court 760
Reporter, duties of 766
Reversal of judgment of circuit
court 513
not allowed for errors that may
be corrected in lower court
516, 763
proceedings to obtain shall be by
sub. 2, 515
proceedings on in court below . . 761
Revivor of 767
Rules of Court of Appeals. (See
Rules, page 593) 760
Schedules for, appellant, when re-
quired to file, sub. 4 . . . . 737
when allowed to file, subs.
4,7 737
appellee, when may file, subs.
4, 7 737
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nroBX TO CIVIL code.
687
saonoN.
Schedule for, constitute part of
record, sub. 10 737
judge, when may prepare, sub. 2, 737
Security for costs on 744
Statement to be filed with by appel-
lant 739
Subpoena duces tecum, when court will
issue, sub. 2 743
duty of clerk, when delivered to,
sub. 9 737
Summons on, how served, sub. 2, 3 . 736
duty of appellant concerning,
sub. 1 739
When not necessary, sub. 1 . . . 736
Supersedeas, definition of 752
bond, before what clerk to be ex-
ecuted, sub. 1 749
Bond, form of, page 650.
by whom issued, sub. 2 749
motion to discharge 750
necessary to stay proceedings . . 747
not to issue until bond executed . 748
proceedings partially stayed by . 751
Tax on ... 746
Time of trial of 753
Title of parties to 735
Transcripts affidavit for warning or-
der filed with, sub. 2 .... 739
amendment of. sub. 1 . . . . 743, 742
certifying of, by clerk, sub. 12 . . 737
costs of immaterial parts of,
sub. 11, 737
exhibits of like character, how
stated in, sub. 8 737, 335
filing of by appellant 738
filing of by appellee 741
index of, sub. 12 737
instruments of same kind, how
stated in, sub. 8 737, 335
notice of filing schedule for, by
appellant, subs. 4, 7 737
orders for, by appellant, subs. 1,
4, 5, 6, 7 737
order for entire record, when nec-
essary, sub. 3 737
order for if cross-appeal taken,
sub. 4, 737
order for all or part of by appel-
lant, subs. 2, 3, 4, 5, 6 . . . . 737
order for if appeal granted in
Court of Appeals, sub. 7. . . 737
order for by appellee, subs. 1,47. 737
order for part of record, sub. 2. . 737
preparation of generally .... 737
record, when part of may be cop-
ied, subs. 2, 4 737
record, when additional may be
filed 736, 742, 743
record, when entire must be cop-
ied, subs. 3, 6 737
schedule for, see above.
time of filing 738
8X0TIOH.
AppealB—ConUnued,
Trial of, time of 758
Warning order, sub. 1 739
Cfirctdt court to.
Amount in controversy necessary to,
page 548
Appellee, right of when appellant
moves to dismiss 730
Award, from judgment of justice
on, sub. 9 451
Bond to be executed 724
Costs upon 727, 728
County court, from, page 548.
Distress warrant, from judgment
on bond 655
Generally, page 458.
Fiscal court from, page 548.
Forcible entry and detainer in . . . 463
How taken 724
Inferior courts, from, how taken . . 724
Original papers to be transmitted . 725
Privilege of appellee upon trial of . 730
Quarterly court, from, page 548.
Time in which to be taken .... 729
Trial of 726
When to be taken 729
Quarterly courts to.
Amount In controversy necessary
to, page 549.
Bond to be executed 724
Costs upon 727, 728
Distress warrant, from judgment on
bond discharging levy of . . 655
Generally, page 549.
How taken 724
Original papers to be transmitted . 725
Privilege of appellee upon trial of . 730
Time In which to be taken .... 729
Trial of 726
When to be taken 729
Appeanuice —
Attorney for absent defendant may
enter, when, sub. 4 59
when acts of do not, sub. 5 ... 59
Bond, e.xecuting in attachment Is . 690
Defendant constructively summoned
allowed five years 414
time may be reduced to one year 415
Entering of. In Court of Appeals,
sub. 5, 737
Appendix-
Change of venue, page 571.
Courts having four judges, page 568.
Courts having continuous sessions,
page 557
Jurisdiction of courts, page 547.
Removal of actions to United States
Courts, page 580.
Rules of Court of Appeals, page 593.
Special judges, page 569.
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688
mDfiX TO OIYIL OODX.
Applicatioii—
Of Ck)de to actions generally .... 16
to actions now pending 887
to actions to be commenoed here-
after 838
to proceedings in inferior courts 700
For order Is motion 623
tef4
Action for division of land, allot-
ment of dower, sab. 18 . . • 409
On appeal from inferior courts . . 727
Appraiieaeit ef preycrty—
AtUched 215
Before taking forthcoming bond in
iniunctioD, sab. I 278
Porma of, pages 633, 635.
In action for claim and delivery • . 189
Levied on under execution or dis-
tress warrant 646, 653
May be objected to 649
Of personal property owned jointly
levied on, sub. 1 660
Return of, to circuit court .... 647
ArUtratloa aid awards-
Appeal from award, sub. 9 . . . . 451
Arbitrators' notice of time of meet-
ing, sub. 6 451
oath to be taken by, sub. 2 ... 451
Attachment allowed in action on 194
Award shall be entered as judg-
ment, sub. 7 451
Controversies which may be sub-
mitted, sub. 1 ....... 451
within jurisdiction of, justice
may be, sub. 9 451
Fiduciaries may submit matters to,
sub. 4, 461
Meeting of arbitrators, sub. 6 ... 451
Not to be set aside for informality,
sub. 8, 451
Oath of arbitrators and umpire,
sub. 2, 451
Order for, may be set aside, sub. 5 . 451
Powers of arbitrators, sub. 3 . . . 451
court over award, sub. 8 .... 451
Submission to, how made, sub. 1 . 451
Subpoena may be issued by arbitrat-
or, sub. 3 451
Umpire may be selected to act with,
sub. 1 451
Witnesses, attendance of, coerced,
sub. 3, 451
Arfameot—
Order of, upon trial, sub. 6 • . . . 817
in Court of AppeaJs, rabb 1 • . . 760
Arrest tad Ml —
Affidavit for order of arrest after
debt matured 163
nonov.
Antst sod Ml— Omftittiaf.
Affidavit for order of arrest before
debt has matured, sub. 1 . . 238
Form of, page 629.
of bail as to qualiflcatiODfi . . . 164
of insolvency, by defendant, 158» 168
may be used on motion to dis-
charge order of 178
Ball, separate action against ... 172
affidavit of, as to qualifications . 164
arrest of, defendant by 170
bond of, may be taken by sheriff, 163
deposit of money in lieu of . . . 159
discharge of, by surrender of de-
fendant 169
discharge of, by vacating order of
arrest 177
exoneration of, by death of de-
fendant 173
liability of, how fixed 171
liability of, generally • . . 167, 176
liability of officer as 174
liability of, how fixed and en-
forced 175
objection to, for Insufficiency • . 165
qualifications of ......... 164
reduction of amount of 177
scire JacicLs against, abolished • . 179
time and manner of giving ... 163
Bond before order for Issues . . 154, 240
Form of, page 629.
of defendant to obtain discharge, 163
to be canceled if order vacated . 177
Breaking buildings to execute . . . 676
Capias may issue against defendant, 168
Debt not due 237, 238
order and requisites .... 238, 239
sections applicable 241
Deport of money in lieu of bail . . 159
officer to be officially Uable for . 162
orders for safe-keeping of . . 161
received by officer to 1^ paid into
court 160
Discharge of defendant by execut-
ing bond 163
by deposit of money 159
by taking oath of Insolvency . . 168
Election, exemption from arrest at, 666
Escape or rescue of defendant lia-
bility of officer for 174
how liability of oAeer tkced and
enforced 175
BxecutioQ agminst tibe body of de-
fendant • • . . 168
Exemption from accsst at deotion
or court 666
Exoneration of bail 173
of officer for taking insufficient
baU 166
Formt ofntotrwtkg sfwj€ ^ms low,
pages 629, 630.
Insolvency, oath of, defendant may
Uke 158, 168
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INDBX TO CIVIL CODE.
689
Arrest and tM—Ckmiinued,
Liability of bail or officer, how
fixed 171, 175
Money, deposit of in lieu of bail . . 159
officer to pay into court, liability
of for 160, 162
Notice of intention to take oath of
insolvency 168
Objection to bail for Insufficiency . 165
Officer. See Sheriff, infra.
Order of arrest, affidavit for . 153, 238
bond for 154, 240
cleric may make, in action for
money due • . . . 153
who to make 238
execution of 157
Form of, page 630
two justices may make when
money not due .•••*.. 689
requisites of • . 155
return day of 156
vacation of, how and before whom
motion for made 177
Qualifications of bail 164
objection for want of, how and
when made 165
Rearrest of defendant 167
Rescue of defendant, officer liable
for 174
Return of "not found" necessary
to fix liability of bail .... 171
Scire faeiaa against bail abolished . 179
Sheriff to execute order by arresting
defendant 157
buildings, may break to execute
order 676
exoneration of, if bail insufficient, 166
liability of, for money taken in
lieu of bail 162
liability of, for escape or rescue
of defendant . . .• 174
liability of, how fixed and en-
forced 171, 175
may take money in lieu of bail . 159
money taken in lieu of bail, how
disposed of 160
right of to sue bail 176
to commit defendant to jail . . . 158
to indorse time of receiving order
of arrest 674
Surety may obtain order of arrest
against principal 662
Survey, exemption from while at-
tending 666
Vacating order of arrest, motion for, 177
evidence that may be heard on . 178
Witnesses exempt from while attend-
ing court 666
Article-
Defined, sub. 1 732
(44)
sxonoH.
Assessment of damages —
Ctourt may assess, or order jury or
commissioner to 379
Injury to person or character court,
may assess, sub. 2 331
Jury to assess in actions for per-
sonal property 830
Assifoee—
Actions by and against .... 19, 21
Bankrupt of, may bring action in
his own name 21
Chose in action of, action by without
prejudice 19
may be substituted as plaintiff . 20
Costs, insolvent may be required to
secure 619
Ky. Stat., applicable to 471
Settlements of may be recorded . . 472
Assignment —
Does not render assignor competent
to testify, sub. 9 606
Pending action, provisions as to
costs 20
To prefer creditors, provisions ap-
plying to 438
Verification of pleadings in action
on, sub. 3 116
Assignor—
When necessary party to action . . 19
Association—
Non-resident, summons against . . 51
Asylum-
Inmate of, service of process on . . 53
Venue of action against 69
Attacliments general—
In actions for money dtte 194
Affidavit for 196
may be amended, sub. 2 268
Bond for 198
defective may be amended . . . 682
Grounds for generally 194
against defendant who has been
from State four months . . . 194
defendant who has departed from
State to defraud creditors . . 194
defendant who is foreign corpora-
tion or non-resident 194
defendant who has left county of
residence to avoid process . . 194
defendant who conceals himself . 194
defendant removing his property
outof State 194
defendant who is endeavoring to
defraud creditors 194
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6»0
INDIZ TO CIVIL CODI.
•aonov.
Attachmeitt gttttnl^Ckmii$mmL
Grounds for against defendant who
has not sufficient property to
paydebt 191
In action to recover peracHial prop-
erty IW
In action on contract Judgment
or award 194
may be shown by officer's return
on summons 197
rent, to recover 195
when not allowed against foreign
corporation or non-resident . 194
In actions for money not due —
Affidavit for 238
may be amended 268
Bond for 240
defective may be amended . . . 682
Granting of generally 238
by two justices 689
Grounds for 237, 238
Order of must specify sum for
which it is granted 239
Specific attachments —
Allowed in certain cases . . . 249, 250
Bond for • . 252, 253
Officer's duty as to property levied
on 255, 256
Powers of court over defendant in . 257
Provisions concerning general at-
tachments apply to 258
Requisites of order for 254
AVho may grant 251, 689
In aciUmafor specific personal properiy 194
In actions to enforce satisfaction ^
judgjnents 441
For rent 195
General 'provisions eonceming oMach-
ments —
Affidavit required before sale of real
property 230
defective may be amended . . . 268
grounds of attachment, contro-
verted by 263
Form of page 633.
of parties to have no effect ex-
cept as pleadings 268
Amendment of grounds of attach-
ment 268
Appraisement of property before
taking forthcoming bond . . 215
Bond for forthcoming of property . 214
appraisement of property before
taking 215
defective may be amended . . . 682
enforcement of 232
execution of is appearance . . . 690
Indemnity may be required before
levying 211
to be executed before attachment
issues • 198, 240
to discharge attachment given . 221
SBcnoar.
Attachaeits tumnl^Continu^tL
Bond to discharge to be executed
before clerk or sheriff .... 223
to discharge Lb appearance to ac-
tion 690
to Joint owner of property levied
on 208
Delivery of property upon execution
of bond 214
Delivery of property upon execution
of bond, discharging .... 221
Discharge of attachment, bond for 221
motion for before attachment sus-
tained 265
motion to in vacation • 268
order for, when final 266
order for, after attachment rein-
stated, final 267
Disposition of attached property be-
fore judgment 218
application for, how and before
whom made 218
property may be sold 218
Enforcement of bond 232
Evidence on trial of attachment . . 264
Execution of attachment on fund
in court 207
on garnishees 203
interest in joint property . . . 208
personal property generally . . 203
personal property in officer's pos-
session 203
real property 203
personal property to be first taken 206
Exempt property 200
Forms in generally^ pages 633, 636.
Garnishees, against action .... 227
action against when to be dis-
missed 228
appearance by 224
attachment against 227
bond of to retain money attached 225
disclosures by 224
examination of, concerning 'prop-
erty 225
execution of order of attachment
on, sub. 3 203
liability of 225
may be compelled to answer ... 226
payment of money by . • . . . 223
punishment of 205, 226
to furnish sheriff with descrip-
tion of property 205
Grounds of attachment .... 194, 238
Indemnifying bond may be required
by officer 211
Information may be required of de-
fendant , . . . 220
Joint property, attachment o* in-
terest in 208
bond to joint owner 208
sale of, when authorized .... 209
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moBx TO CIv^. oops.
6W
ewmov.
Attachflieote geoeral— CbiUiiMMti.
Judj^meot, in action to enforce . . 441
for plaintiff, attachment to be
sustained 261
for defendant, attachment to be
discharged 260
justices* courts in T31
Keeping of property by oflflcer, ex-
penses to be paid 219
Lien of attachment 213
Money due, of 194
not due, of 238
Officer, duty of when order execut-
ed upon 204
Pendency of on same property in
different courts, transfer . . 210
Perishable property, sale of . . . 218
Pleadings in attachments, affidavits
of parties constitute. . . 263
Power of court as to sales of prop-
erty 233
Priority of attachments .... 202, 207
reference to commissioner to as-
certain 235
Property exempt from levy .... 200
how attachment levied on real
and personal 208
how upon fund in court 207
Joint, how attached and subject-
ed 208, 209
personal to be first taken .... 206
pursuit of by officer 213
real, of non-resident not to be
sold until affidavit filed ... 230
surplus proceeds of, disposition of. 231
Pursuit of property by officer . . . 218
Receiver to dispose of property . . 218
Reference of attachments to com-
missioner 235
Reinstatement of attachments . 269, 270
Rent, for 195
Retaking of property by sheriff . . 234
Sale of attached property 696
of property generally .... 694, 696
of property of absent defend-
ants 230, 410
of property of joint owners . . . 209
of perishable property 218
Security on bond, motion for addi-
tional 286
Sheriffs, execution of attachments
by 203, 206
on fund in court, and property of
joint owner 207, 208
breaking buildings, when allowed 675
indorsement of time of reception, 674
keeping of property by . . , . . 219
officially liable for money re-
ceived 218
pursuit of property by 213
requirement of indemni f ying bond, 21 1
requirement of bond before levy-
ing on joint property .... 208
retaking gf property by 234
SBonoir.
Attachmeoto feoefal— Obnh'mMti
Sheriffs, return of attachment by . 217
served with attachment, duty of . 204
taking of forthcoming bond by . 214
taking of bond to discharge at-
tachment by 222
Sureties, attachment by before debt
matures 238
after maturity of debt 662
may be required to make affidavit
as to qualifications 683
qualifications of 684
Surplus proceeds, to be returned to
defendant 231
Sustaining of attachment, proceed-
ing upon . 229, 262
when to be sustained . . I . 259, 261
Transfer of from one court to an-
other 210
Trial of 259, 264
upon motion to discharge . . 265, 268
AttesUog witnessef —
Affidavit of, as to service of sum-
mons 50
Competency of as witness not af-
fected, sub. 11 606
Attorney-
Affidavit of, for client generally . . 550
must show that he is attorney for
party, sub. 5 550
that party is absent from county,
sub. 5, 550
to obtain warning order 58
to verify pleadings of Common-
wealth, sub. 1 117
to verify pleadings of corporation,
sub. 2, 117
to verify pleadings generally,
sub. 3, 117
Attendance of as witness when re-
quired 556
can not be compelled 555
deposition of to be taken .... 554
Client may have judgment against
on motion 444, 449
communication to privileged,
sub. 5, 606
Costs, liability for 113, 621
Deposition of, to be used on trial . . 554
Docket, names to be placed on . • • 853
For defendant constructively sum-
moned, sub. 1 59
compensation of, sub. 6 59
duties and powers of, subs, d, 6 • 59
name of not to be suggested by
plaintiff, sub. 1 59
qualifications of, sub. 1 . » , .59
Guardian ad litem must be, sub. 2 . 38
Judgment may be had against on
motion 444, 449
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692
INDEX TO CIVIL OODB.
svonov.
Attorney— Cbn/tnu«f.
Liability of for costs of client ... 621
for costs of sham pleadings, sub. 8 113
May be required to enter satisfac-
tion of judgments 393
Motion against for money collected . 444
Notice of motion or proceeding may
be served on ...... . 625, 631
to person constructively sum-
moned 630
to take depositions may be served
on, when 632
to corporation may be served on . 628
Of party, not to be appointed re-
ceiver 300
plaintiff, not to suggest guardian
ad litem, sub. 2 38
plaintiff, not to suggest corre-
sponding attorney, sub. 1. . . 59
Satisfaction of judgment, when to
be entered by 393
Testimony of as to professional com-
munications, sub. 5 606
Warning order, defendant for . . . 59
Witness, not required to attend
as 554, 555
when attendance of, as required . 556
Attomey-geoerml—
Action to be brought by to repeal or
vacate charters 481
for usurpation of office 485
Kentucky Statutes applicable to
adopted 450
May appeal In mandamus without
security 478
Pleadings of Commonwealth to be
verified by 116, 117
Attorney for Commonwealtli—
Actions by for usurpation of county
offices 484
charters to repeal 481
Verification of pleadings by, sub.1 . 117
Auditor of pnbllc acconnts—
Evidence of, must be taken by dep-
osition 554, 555
Personal attendance as witness when
required 556
Antbority—
Conferred on three or more, ma-
jority may act 679
Averments^
See Allegations.
Avoiduice^
Answer may contain plea of ... . 95
Express admission not necessary in
pleaof, sub. 6 113
sBonox
KvMMnu— Continued,
Rejoinder may contain pleaof . . . 99
Reply may contain plea of ..... . 98
Award—
See Arbitbation and Awakd.
Attachment allowed in action on . . 194
Baffage—
Testimony of husband and wife con-
cerning, sub. 1 606
Bail—
See Abbbst and Bail.
BaiUff—
May be appointed to execute piooesB
generally 668
to execute In inferior courts ... 701
Baok—
Check, action on 19, 26
Deposits In, by courts generally . . 307
Evidence of officers of to be taken
by deposition 554, 555
attendance of as witnesses, when
required 556
Security for costs not required of,
when 616
Venue of actions against 71
Bankrapt—
Action by assignee of 21
Discharge of, effect as to sommoDS 80
effect on surety 693
Bill and notes-
Actions on generally 19, 26
Bill of diacoTtry—
Action to enforce judgment .
To learn name of joint debtor .
. 439
Bill of exceptions—
See Exceptions.
Absence of judge who presided,
practice 337
Bystanders bill 336
Controverting by affidavits .... 337
Exhibits, how shown in . . • • . 335
Evidence to be stated in full, when 335
Form of not particular, sub. 1 . . . 336
How prepared • • • . . 335
May be supported by affidavits . . . 337
Preparation and certifying of,
885,897, 339
Signing by judge 339
Time to prepare 834, 336
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Google
INDEX TO CIVIIi CODE.
693
ssonoH.
Bill of exchange^
Action on, If lost 7
on generally 1^» 26
Must be filed with pleading, if it can
be produced 120
Board of education-
Venue of action against 68
Bona fide pnrcliaser—
Title of not affected by new trial to
infant 391
nor by new trial to defendant con-
structively summoned .... 417
Bonds—
Action on may be joint or several . 26, 27
on lost, may be at law or equity . 7
Appearance entered by, when . . . 690
Arrest and bail. Forms of, pages 629, 630
Attachment. Forms of, pages 633-636
Claim and delivery. Forms of, in,
pages 631, 632.
Clerk to prepare 672
Costs for, who required to give . 616, 619
attorney liable for, when .... 621
bond for, page 626.
judgment on bond for ... . 444, 449
Defective may be amended .... 682
Defense, to forthcoming bond . . . 216
Execution on holiday 664
Filing of, with pleadings 120
Forms of generally. See Forms.
Holiday, may be taken on 664
Injunction. 'Forms of, pages 636, 637.
Judgments, that have force of . . . 697
Sureties, qualifications of . . . 683, 684
Mentioned in Code —
appeal 724, 748
arrest, to obtain order of . . 154, 240
attachment general, to obtain . . 198
in certain cases, to obtain . . 240
specific, to obtain 252
to discharge 221, 258
to officer before levying .... 211
bail of 163
claim and delivery ... 184, 185, 188
claimant of 645, 652
costs for 616
delivery of property, in action
for ... .^ 184, 185, 188
distress warrant to discharge . . 653
distributee, to refund 486
execution to discharge levy of . . 278
foreign personal representative . 404
forthcoming of property by party
enjoining execution . . . 278, 279
of property by joint owner . . . 660
of property attached . . . 214, 258
garnishee for money attached . . 225
8B0TION.
Bonds — Contimied.
Mentioned in Code —
indemnity to obligor in lost writ-
ing 7
to owner of interest in joint
property 208
to sheriff before levying attach-
ment 211
to sheriff before levying execu-
tion 641
to sheriff before levy of distress
warrant 652
to sheriff before taking property
under order of delivery . . . 191
infants before sale of real prop-
erty of 493
injunction, to obtain order of . . 278
to answer for disobedience of . 286
judgment, to perform before
transfer to equity . . . . 14
before against absent defendant, 410
legatees, to refund 435
money lent by court, to secure . . 308
non-resident, to restore property
to 410
before judgment against . • . 410
possession ot attached property,
to retain 214
purchase money for, of attached
property 218
of property sold under order of
court 697
receivers generally 301
attached property 218
refunding bond 435
restoration of property to defend-
ant constructively summoned 410
sale under execution, to suspend . 645
distress warrant to suspend 052, 653
subpcena to answer for disobe-
dience of 537
supersedeas 724, 748
tenant to discharge levy of dis-
tress warrant 653
to suspend levy in part .... 658
to replevy distress warrant,
page 642.
transfer of action from ordinary
to equity 14
traverse, in forcible entry and
detainer 463
witness failing to obey subpcena . 537
writing lost, before suit on . . . 7
Must be filed when foundation of
action 120
Lost, bond of indemnity before ac-
tion on 7
Proceedings on of tenant . . 654, 657
Supersedeas, on appeal to Court of
Appeals 748
on appeal to circuit or quarterly
court 724
Sureties in may be sworn 683
qualifications of 684
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Google
694
nmsx to 43rttL gods.
Book—
Accounts in, concerning evidence as
to, sub. 7 600
Clerk to keep, of Judgment with
index 393
Justices, of proceedings in courts of
to be kept 715
Brotklng—
Building or inclosure, by officer
with attachment 675
by officer with order of arrest . . 676
Bridgt^
Venue of action against contractor
for work on 77
Bnrdei ol proof--
On whom it lies 526
Party having to produce his evi-
dence first, sub. 3 . . . 317
having to conclude the argument,
sub. 6, 317
Bystanden —
May be compelled to testify .... 602
When to certify bill of exceptions,
sub. 3, 4, 5 337
CaiMclty to Boe—
Objection for want of, made by an-
swer, when . • 118
waived unless made by demurrer
or answer 92, 118
Want of, ground for special de-
murrer 92
Capias 94 satisfacfendaai —
Form of, page 639.
May issue on judgment against
defendant held to bail ... 168
CaptkNi—
Interrogatories to state name and
residence of witness, sub. 1 . 575
Pleadings . 110
Pleadings when counter-claim or
set-off pleaded, sub. 4 . . . . 97
Carrier, commoa—
Husband and wife may testify
against concerning baggage,
sub. 1, 606
Summons against, on whom to be
served, subs. 8, 4, 5 51
Venue of action against 73
Case—
Agreed 637
Civil, defined 1
Delay case, disposition of 759
Caues of actioa—
Allegation necessary to support • • 127
Dismissal of, without prejudice by
plaintiff, sub. 1 871
without prejudice by the court,
sub. 2, 371
Joinder of. See JomDBR ov Ao-
TIONS 83
Paragraphing of, sub. 3 113
Striking out of, by party 84
by court 85
Clunes of cootfoveny'-
Statements of, by parties* are plead-
ings
87
Caveats-
Provisions concerning 473
Certaiity—
Required in pleading • . 134
Certificate—
Clerk to transcript, sub. Id . • . • 737
Justice to transcript 724
Officer to affidavit 551
to deposition 582
to deposition may be amended,
sub. 2, 588
Personal representative's authority
to obtain execution 404
Physician, to dispense with service
of summons on lunatio ... 53
Certiomrl--
Issuing of by clerk of Court of Ap-
peals 742
Order of, by Court of Appeals, sub« 1 743
Chailease—
Jury, provision as to 316
ClMuicery--
See EquTTABLB Actions.
Chancery dodcet—
See Equitt Docket.
Chanfe of veaiie—
PAQB.
Adjacent county, change to % . . . 572
Application by verified petition . . 572
affidavits in 8upp«>rt 672
affidavits, counter . . * ». . . . 572
cause for'conti nuance, when . « » 573
notice of . . » . * 572
one only from same party . . , . 673
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INDEX TO CIVIL CODS.
696
PAOI.
OircuU eourU — OivU «!•»—
Case triable by the court, when
transferred • • 573
Chancery case, when transferred . 673
Clerk's duty under the order . . • 572
Consent, parties may . • • » . . 671
Continuance, application cause for . 578
Notice of application 573
Odium attending party or cause . • 571
One application only from same
party 573
Order void if expense of removal
not paid in ten days 572
Power of court to which cause
removed 4 . . 573
Terms and conditions of change . . 572
Transfer of case triable by court . . 573
chancery case 573
Trial of application, discretion of
court 572
evidence that may be heard . . . 572
when removed case stands for . • 573
When removed case stands for trial 573
Inferior ecmiia — dvU cases.
Clerks* duty when change ordered . 574
County to circuit court.* 573
Justices* courts — when demandable 574
justice absent another may act . 574
justice disqualifled another may
act 574
Original papers transmitted » . • • 574
Quarterly to circuit court 573
Remanding case— when 574
duty of clerk in regard to • • . . 574
In criminal cases.
Adjacent or most convenient county,
575, 576
Affidavits— requisites of • 576
Application by Com 'wealth— grounds 575
cost of removal paid by county . 578
one application or change only . . 578
petition and notice 676
Application by defendant, grounds . 575
one application or change only . 578
petition — affidavits— notice . . . .576
City judge — change to justice . . . 579
Clerk's nuty in making transfer 577, 579
Convenient county — change to . . . 575
Costs of transfer— how paid, 577, 578, 579
County judge — change to justice . 579
Justice — change to another justice . 579
Mileage of person, making transfer . 577
Papers transmitted — originals . . 577
copies when to be retained . . . 577
originals retained, when , 577
Police judge— change to justice . . 579
Preparation for trial 577
Proceedings when defendant' in ous*
tody 577, 578
when defendant' on ball . . . 577, 578
Recognizances of witnesses • • 677, 579
PAGI.
* Chtflgt of yeau^^ConHntted.
In criminal cases —
Remanded — when case to be ... 679
costs of transfer, how paid ' • • 578
motion for — who to make • » » . 578
original papers and transoript
transferred 579
removal of defendant 578
witnesses recognized 570
Removal from lawless county . . . 570
expense paid by county 576
when costs paid by county . . , 578
Removal of defendant in oustody,577, 578
when on bail 577, 578
Transfer made by clerk .... 577, 579
mileage 577, 579
Chapter — ssonov.
Defined, sub. 1 .732
Character—
Action for injury to, Joinder of,
sub. 6 • 83
for slander or libel ....... 123
Of witness, how attacked . . . 596, 597
how supported 599
Venue of action for injury to . . . 74
Charge of coart—
See Instructions.
Charters—
(See Repealing or Vacating
Charters) . 480
Checks-
Action upon lost 7
against persons severally liable
upon ...» 4 26
by assignee of 19
Money deposited by court to be paid
upon check of clerk .... 307
Chief officer-
Corporation, who is, sub. 33 ... . 732
Children—
See Infants.
Chose Id action-
Action by assignee of 19
for subjection of, to satisfaction
of judgment 439
Clrcanstaiices—
Mitigating, and truth pleaded in ac-
tion for libel or slander . • . 124
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696
INDEX TO CIVIL CODE.
Circuit coart—
See Courts.
Circnit )iMlf«—
See Judges.
What Judges the words embrace,
sub. 14, 732
City-
Summons iu action against .... 51
City courts—
See Police Courts.
Civii actions—
Code applies to all 16
Defined 2
Civii case-
Defined 1
Special jjroceeding is 1, 3
Civii proceedings in lieliaif of State-
Provisions of Ky. Stat, adopted . . 450
Ciaim and deiivery of property—
Afildavit for 181
Form of, page 630.
value of each article to be stated
in 182
Appraisement of property before
taking bond 189
Bond for 184, 185
Forms of, pages 631, 632.
indemnity to sheriff before deliv-
ering property 191
of defendant to retain possession . 188
Concealment of property by defend-
ant 193
Defendant, punishment of for re-
moving property 193
Immediate possession, plaintiff may
claim 180
Judgment in action 388
Jury to assess value and damages . 330
Order of delivery, contents of ... 183
clerk to issue 181
Form of, page 631.
may issue to different counties . . 192
removing property, punishment . 193
restoration of property to defend-
ant \ 188
Sheriff to execute 186
disposition of property taken
hy 187, 188
keeping property and expenses . 190
may require bond of indemnity . 191
may break building to execute . 675
not bound to keep property, un-
less bond given 191
SBcnox.
Claim and deiivery of property— Cbn^nKo^
Sheriff to indorse time of reception
of order 674
Verdict, form of 330
judgment on 388
Claimant of property-
Attached, to give information con-
cerning 220
may file petition and assert claim 20
may execute bond and retain
property 214
Bond of, to suspend sale under exe-
cution 645
to suspend sale under distress war-
rant 652
motion on bond of, to suspend
• execution sale 648
of indemnity, if property taken
under order of delivery ... 191
return of, to suspend execution
sale 647, 651
return of, to suspend sale under
distress warrant 652
In litigation, may file petition ... 29
may be interpleaded by defend-
ant 30, 31
Petition to be made party ... 29, 30
Substitution for defendant ... 30, 81
Clearness-
Required in pleading 115
Ciersyman —
Not to testify as to confessions, sub* 5, 606
Clerical misprision—
Correction of to be by motion ... 519
in rendering premature judgment, 519
Defined 517
Ground for new trial 518
Motion to correct before appeal, 516, 763
Not ground for appeal until . . 516, 763
Clerk-
Embraces what persons .
Reference of word . . .
. sub. 39, 732
sub. 12, 732
Clerks of courts-
Absent defendants, warning order
made by . • • • 57
warning order not made until
affidavit filed . 58
attorney for to be appointed by . 59
Affidavits may be taken by . . 549, 671
Appeals granted by clerk of Court
of Appeals 734
Arrest, order of issued by in action
for money due 153
order not to issue until bond exe-
cuted 154
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INDEX TO CIVIL CODE.
697
Bxonov.
Clerks of emuU^Omtinued.
Attachment, general, issued by . . 196
bond for to be taken by 198
specific and special issued by an
order of judge 240, 251
bond to . be executed before
issual 240, 253
shall describe property or specify
sum 239, 254
Bonds, time of return to be indorsed
on 669
to be prepared by 672
for costs to be approved by . 616, 618
for performance of judgment in
attachment taken by . 222, 258
for supersedeas of judgment
taken by 724, 748
from foreign personal represent-
ative taken by 404
Certiorari, to be issued by .... . 742
Decedents* estates referred to com-
missioner by 431
Deeds and reports recorded by,sub.8 499
Delivery of personal property, order
for made by 181, 192
Depositions, cross interrogatories to,
filed by 575
commission for, to be issued by . 577
reception of by 583
return of by to officer taking,
sub. 1 588
taking of by 562
Deputy may act for 678
Dockets to be kept by in circuit
court 347
in Ck)urtof Appeals 753, . 754
Evidence of taken by deposi-
tion 554, 555
personal presence, as j witness
when required 556
Execution on judgments issued by . 168
Filing papers, time of, indorsed on
by 669
Forcible entry and detainer, trav-
erses docketed by 465
Holiday, issual of process on by, 664, 665
Guardian ad litem, appointed by . . 38
Index of judgments, shall be kept
by 392
of transcripts, shall be made by,
sub. 12 737
Injunction, order of granted by,
when 273
bond to be taken by before issu-
ing 279, 280
insufficient, liability of for taking 280
Judge of quarterly court to act as . 703
county clerk may be empowered
to act as . 703
Justices, to act as clerk 702
to keep docket 704
Judgments, cross-indexed by . . . 392
entered according to verdict, when 384
8XCTIOK.
Clerks of conrts — Continued,
Judgments, entered according to
direction of court, when . . . 385
issual of execution after death of
plaintiff 402, 404
issual of execution against surviv-
ing defendant 405
satisfaction of, to be entered by, 393
issual of execution on, generally, 401
Liability not affected by swearing
sureties in bonds 683
Misprision by. See Clerical Mis-
prision.
Money deposited by court paid on
check of 307
Oaths, power of to administer ... 671
Papers to be indorsed **filed" by . . 669
Pleadings, day of filing indorsed
by 669, 811
Subpoena issued by, at request . . 529
Summons, issued and signed by . . 40
at any time, to any county ... 41
delivery of to sheriff by . . 45, 46
may be issued on holiday or Sun-
day 664, 665
not to issue before petition filed, 603
with copy for each defendant . . 42
with copy of petition, if required, 56
to issue when petition is filed . . 39
to be directed to sheriff, unless
ordered 667
return to be entered on docket by 670
amendment of 49
Sunday, issual of process on by . . 665
Supersedeas to be issued by, sub. 2, 749
Sureties, insufficient to be refused by, 673
for costs, judgment against on
motion of 444
Survey, order of made during vaca-
tion 671
Transcripts to be prepared by . . . 737
Trust estates referred to commis-
sioner by • . . . 438
Code-
Amendments to conform to ... . 134
Application to actions generally . . 16
to actions now pending 837
to actions commenced Ifiereafter . 838
Does not affect equity jurisdiction as
to partition or dower, sub. 16, 499
not change mode of forming jury 316
General provisions of 663, 669
Rules of construction of 732
Commencemeot —
Of action, what is 39
jury trial, what Is 590
Commfssiofl—
To take depositions on interroga-
tories 576, .577
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698
INDtX to CIVIL OODB.
8KCnOK.
Affidavit may be made before ... 540
Conveyance of real property by . . 394
must be approved by the court • 898
must be recorded 400
must refer to JudgA^Dt and pro*
ceedings ... ^ . «... . 395
to recite names of parties whoae
title passes 899
title passed by 306, 397
Division of land and allotment of
dower by, sub. 4 499
Reference to of actions to settle es-
tates 430
by clerk in vacation 431
to settle trust estates 438
to assess damages, take proof . • 379
to, of attachments to ascertain
priority • 235
CommliskMiers of iiBkiBg ituA-^
Venue of action against .'..... 68
CMimittee of persoas of vrntrntai mimi —
Action in his own name 21
generally 35
for division of land, allotment of
dower, sub. 2 499
for sale of land 489, 491
wife and children of person to be
parties, sub. 8 492
bond executed in action for sale
of realty, sub. 1 493
if not executed sale void, sub. 3 493
general provisions concerning
sales of land 494, 498
Affidavit of, for warning order . . . 58
Arbitration may be agreed toby,
sub. 4 451
Bond executed by, in action for sale
of realty, sub. 1 493
Costs, liability of, for, sub. 2 . . . 37
security for when required . . . 619
Defense by, formal not necessary . 126
must be made, or report filed . . 36
failure to make, or file report,
contempt, sub. 3 36
May consent to take depositions on
interrogatories 572
Notice to person under disability
may be served on .". . . »\ 627
may be served on attorney for,
when ....•• ... 632
Pleadings by, need not be verified . 116
Settlement of accounts of, in county
court 472
Common carrier —
See Carrier.
Commofl docket-*
See Ordinart Docket.
ilatefcst^
Actions involving, proTiaioas am to 25
Commoi bkwmtl^^
See ORDiNA&t ACWOW.
Commoi ordert—-
Action on ... 19, 26
Commoiwealth—
Bond not required of in action
against non-resident 411
Civil proceedings in behalf of - . 450
May appeal without security in
mandamus 478
Verifications of pleadings of, sub. 6 116
by whom to be made, sub. 1 . . . 117
Commoiweahli's attorney—
To sue for usurpation of county
offices 484
for repeal of charters 481
Verification of pleadings by, sub. 1 117
Commnnicattons—
What are privileged, subs. 1, 5 . . 606
Commnnfty of Shakers-
Service of summons on 55
Com^nsation^
See Fees.
Company^
See CoRPORAtiONS.
Competency of witnessec—
See W1TKB8SB8.
CofflproniBO—
See Offer to Compromise . 034, 636
Compntatkm^
Of days between acts ,
681
Concealment—
By defendant, authorises warning
order against him, sub. 6 . . 57
authorizes attachment of his
property 194
Of property sued for, authoriies at*
tachment, sub. 3 194
against which attachment is
ordered, is contempt .... 257
in action for possession of is con-
tempt 193
minor witness, la oontempt . . . 585
how punished 538
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INDIX TO CIVIL GODB.
699
Bxonov.
Conciseness—
Required in pleading . . . r . . . 115
Concln4ing^rovlSlnlis»fc«4e. . . 887, 88$
Conclnslons of fact—
Instead of evidence in full, to be
stated in bill of exceptions . 335
Stated by Judge, separate from
conclusions of law 882
CooclnsiooB of law-^
Not to be pleaded 110
Stated by judge separately .... 332
Confession—
Judgment by 381
cause of action to be stated in . . 382
proceedings on 383
Offer of, and effect of 640
Priests not to testify about, sub. 5, 606
Confession and avoidance-
Express admission of facts not nec-
essary in plea, sub. 6 . . . . 113
Confirmation of sale^
See Sales by Obder of Court.
Consent—
Of trustee, to obtain sale of prop-
erty, sub. 8 494
ConsisteiDt—
Pleadings to be, sub. 4 113
remedy if not, sub. 4 113
Constable-
Meaning of word, sub. 16 733
Process to, in forcible entry and de-
tainer 454, 461
from inferior courts 701
from other courts • • • ^^
Punishment for erroneous return on
summons 49
for failing to serve notice .... 633
Constmctlon—
Of terms used in Code 732
Rule of common law, not applicable
to "733
Constructive service-
Allegation of pleading not admitted
in 1^
when taken as true 409
Bond not given court to control
property 411
before Judgment in cases of . . . 410
SEOnON.
Constructive atrriee—ConiinuecL
Counter claim disclosed allowed . . 413
Defense when to be filed 102
Evidence in cases of, sub. 8 ... 606
Examination of plaintiff as to claim 412
Judgment, copy of may be served . 415
effect of 415
lien created by on property ... 418
manner of serving 416
Lien on property of defendant ... 418
New trial, time allowed for ... 414
title of property, how affected by . 41 7
Notice, how executed on defendant, 630
Personal judgment forbidden . . 419
Petition against, when taken as true, 409
Service of copy of peti tion and effect, 56
Set-off, disclosed allowed 413
Time allowed to appear and defend, 408
Venue of action 75
Warning order 57-59
Contempts of court-
Concealment of property, in action
for specific delivery . . • . . 193
of property attached 257
of minor witness ..*.»... 535
Disobedience of injunction * . \ . 286
mandate of Court of Appeals . . 762
order to deposi t money or property 304
order to pav maintenance pendente
Hie . .^ 424
order restraining waste 467
order to answer in action to enforce
judgment 440
order to surrender money or prop-
erty'in action to enforce judg-
ment 443
of subpoena 535-539
Failure to answer interrogatories an-
nexed to pleading 151
of attorney for absent defendant
to make defense or report,
sub. 5 59
of guardian to make defense or
report, sub. 3 36
of defendant or claimant to dis-
close property 220
of garnishees to give information
to officer 205
to give information to court . . 226
of obligor to deliver attached prop-
erty 232
of officer to serve notice 633
Making erroneous return of sum-
mons by officer 49
Witness punished for 535, 538
Contingent remainder-
May be sold on petition of owner of
particular estate 491
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700
INDEX TO CIVIL CODE,
8BOTIOH.
Coiitinwiace—
Amendment of pleadings, when
ground for 136
As to one, and Judgment against an-
other 370
Of action, on aooount of absent wit-
ness 315
affidavit for, requisites of ... . 315
for failure to answer interroga-
tories 142, 145
Offer to compromise not ground for, 636
On contract, as to some and judg-
ment as to others 363
Tort, no trial as to any, unless ac-
tion discontinued on first day 363
Witness, affidavit for personal pres-
ence of 556
Contract—
Action against persons jointly liable
on 27
against persons severally liable on, 26
on for indemnity, before debt ma-
tures 237
As exhibit, maybe filed with plead-
ings 128
Attachment against non - resident
may be had on, sub. 8 . . . 194
Genuineness of, when taken as ad-
mitted 527
Joinder of causes of action on . . . 83
each cause to be in separate para-
graph, sub. 3 113
Judgment against parties on ... 27
Lost, action on 7
Must be filed with pleadings, or ac-
counted for 120
Successive actions on 680
Variance between pleading and
proof 131
Vender, to vacate fraudulent con-
tract may have attachment . 25(J
Verifications of pleadings in action
on 116
Contractor for public works-
Venue of action against 77
Contradiction—
Of witness by party producing him, 596
by adverse party 597
how done 598
Contribution—
See Sureties.
Action by surety against co-surety
for
661
Controversy —
Claimant of property may intervene
by petition 29
ControYeny— Continued.
Claimant of property, may be inter-
pleaded by defendant ... 30, 31
Deposit in court of property in . 30, 303
Submission of 637
Conveyance-
County to be recorded in 400
Deed to be examined by court . . . 398
character of title, passed by, 396, 397
names of parties in .... , • . 399
Fraudulent, authorizes attachment,
194, 237
By commissioner. (See Commis-
sioner) ......... 394-399
Convicts—
Not competent to testify, if in pen-
itentiary, sub. 8 606
Party shall not testify for himself
against, sub. 8 ..... . 606
Co-obllgora—
Action by, before maturity of debt . 237
after maturity of debt .... 661, 662
Attachment in action 237, 238
Form of judgment 245
Order of arrest in action by . . 237, 238
Coparceners-
Embraced bywords "joint tenants"
sub. 28, 732
Copy of writing—
When to be filed with pleadings . . 120
Coroner-
Meaning of, sub. 16 732
Process to, from inferior courts - . 701
from other courts 667
To whom the word refers, sub. 16 . 732
Corporation —
See Foreign Corporations.
Chief officer or agent of, who is
sub. 33. 732
Cost, security for, to be given by, 616
Foreign, attachment of property of,
sub. 8, 194
Is person, sub. 5 732
Notice to, how served 628
Residence of, what is, sub. 32 ... 732
Summons, service on municipal,
sub. 2, 51
on private, sub. 3 51
on common carrier, sub. 3, 4 . . 51
on county, sub. 1 51
on city or town, sub. 2 57
constructive, when allowed, sub. 1 57
Venue of action against bank or in-
surance company 71
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INDEX TO CIVIL CODE.
701
8xonov.
Venue of action, against generally, 72
against common carrier 73
against foreign corporation ... 75
Verification of pleadings of, sub. 2, 117
Warning order against 57
Costs-
Actions unnecessary, plaintiff to
pay 687
Agreed case in 639
Amendments, generally, sub. 5 . . 113
after demurrer sustained .... 94
Appeal from quarterly and justices*
courts, on 727, 728
Apportionment of in action to divide
land or allot dower, sub. 13 . 499
Attachment in 199, 201
Attorney for non-resident plaintiff
liable for. . 621
filing sham pleadings, liable for,
sub. 8, 113
Bond for^ farm of page 626.
Bond to secure . . • 616
Committee, liable for, sub. 2 . . . 37
Copying immaterial part of record,
sub. 11, 737
Corporation other than bank to se-
cure 616
Curator liable for, sub. 2 37
Demurrer resulting from . . 92, 93, 94
Dower to allot in action for, sub. 13, 499
Extension of time to plead, party
asking to pay 107
Fees of attorney for absent defend-
ant, taxed as, sub. 6 ... . 59
of guardian ad liiem, to be taxed
as, sub. 4 38
Form of boTidfor, page 626.
Garnishee, when to pay 223
Guardian, liable for, sub. 2 . . . . 37
ad litem, fees of, to be taxed as,
sub. 4 38
In action for indemnity before debt
due, sub. 1 247
Irrelevant and redundant matter, in
pleading 121
Keeping property attached .... 219
deposited in court 305
in action for immediate delivery . 190
Land to divide, in action for . . . 499
Next friend, liable for, sub. 2 . . . 37
Non-resident attorney, fees of,
taxed as, sub. 6 59
Non-resident, to secure .... 29, 616
Offer to compromise 634, 635
to confess judgment 040
Pleadings, filing sham, sub. 8 . . . 113
defective 113
irrelevant and redundant matter
_ in 121
Party asking time to file 107
redundant 121
8x«nox.
CosiB^ Continued,
Process, attachments not executed
not to be taxed as 201
summons not executed not to be
taxed as 41
Recovery by plaintiff of any part of
land claimed by defendant,
sub. 2 125
Resulting from failure to demur,
sub. 2 92. 93
Security for, by non-resident . . 29, 616
in Court of Appeals 744
by guardian, curator, committee.
next friend, sub. 2 ... 37, 619
on substitution for officer of new
party as defendant 32
transfer of plaintiff's right pen^
dentelite 20
by corporation other than bank . 616
Surety for, liability of on motion . 444
Co-sureties —
Action by and against to compe.
payment of money not due . 661
to compel payment of money not
due 237
Attachment by if money not due,
sub. 2 237
if money due 662
Motion by and against for money
paid 444
proceedings on .«•••••• • 449
Couflter-clain—
Absent defendant against 413
Allowed only in answer or reply,
sub. 3 Ill
Answer may contain 95
Assignee, against 19
Caption of answer or reply must
* mention, sub. 4 ..... . 97
Caption of what to state 110
Defendant demanding is a plaintiff,
sub. 36 732
may proceed on, though plaintiff
dismiss action 872
Defined, sub. 1 96
Demand of is an action, sub. 34 . . 732
Disclosed on examination to be al-
lowed absent defendant . . . 413
Dismissal of action does not pre-
vent proceedings on 372
Failure to plead does not waive . . 17
Inferior courts in 720
Judgmenton 97, 387
Need not be pleaded as defense . . 17
Plaintiff against whom demanded
is a defendant, sub. 36 ... 732
Pleadings that may contain, sub. 3, 111
Proceedings on against new parties,
sub. 3, 97
against plaintiff, sub. 2 97
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702
mUBX TO CIVIL eODI.
•Bonov.
Coaoter-claifli — Continued.
Proceedings on in quarterly, JUB-
tices' and police courts . . . 720
Relief on, provisions concerning,
sub. 1 97
Reply may contain • 08
Separate action on . « « 17
Summons on not necessary • . • • 97
Trial of 97, 372
CMOtiflg—
Days between acts, mode of .
681
Cottflty —
Summons, service of in action
against, sub. 1 51
Coanty in which actioa nay be kPHtgM^
See Vbnub op Action 62
County in which defendant resides—
Judgment against on service in • . 79
against on service out of ... . 82
against on service out of, gen-
erally 80
Summons out of, prohibited in cer-
tain cases • 81
Connty court —
See Courts.
Court-
Misconduct of, ground of new trial, 340
Reference of word, sub. 12 ... . 732
Trial of issue by 312, 313, 331
law and facts separately stated . 332
provisions of Code applicable to . 846
Courts—
OeneraUtf — '
Approval of commissioners* deeds
by 898
Attachments pending in diflferent
courts, removal of to one . . 210
Contempt of. See Contempts.
Funds in, attachment of 307
deposit of in bank generally . . . 307
Jurisdiction of generally (see Juris-
diction OF Courts), p. 547.
To what the word refers, sub. 12 . 732
Trial by, of actions for division of
land, sub. 10 499
of issue of fact inordinary action,
sub. 2 312, 813
of action for injury to person or
character 331
manner of in actions generally . . 346
in actions for injury to person or
character, sub. 2 331
sKcnox.
Conrts— Cbn/trtK^.
Oeneralfy
Trial by, of statement of law and
facts separately 332
of issues of law, sub. 1 313
OircuU courts —
Appeals to, from judgment of jus-
tices' court on award, sub. 9 . 451
from inferior oourts, how taken . 724
in forcible entry and detainer . . 463
Appeals to generally, page 548.
Cbange of venue in, page 571.
Having four judges (see Courts
Having Four Judges), p. 563.
In continuous session (see Courts in
Continuous Sessions), p. 557.
Jurisdiction of, original, page 548.
appellate, page 548.
Special judges of, page 509.
Transfer of actions from 13
What the words embrace, sub. 14 . 732
City courts —
Jurisdiction of, page 551.
Proceedings in, provisions as to, 700, 731
County courts —
Action in for division of land and
allotment of dower .... 499
Appeal from, to circuit court,
page 548.
Change of venue in, page 573.
Jurisdiction of, page 549.
Process, from how directed .... 701
who may execute 701
Settlement of accounts of fiduciaries
in 471, 472
When clerk of to act as clerk of
quarterly court 703
Court of Appeals —
Appeals to. See Appeals.
Judge of may reinstate attach-
ment 270
may reinstate injunction .... 297
Jurisdiction of, generally, page 547.
over judgments of circuit
courts 513, 514
errors, motion to correct which
must be made in lower
court 616, 768
Courts having four judges — p^©,.
Ball bond — appearance 566
Bonds of court officials -* aoiions
upon 567
Branches — four 664
assignment of cases 564
judge of one branch raay preside
over another 565
jurisdiction — how divided ... 564
mistake in selecting branch ... 665
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vnnx. TO oivn. coos.
703
PAOX.
Conrto — Ckmiinued,
Courts having fowr judges —
Commissioner — ^appointment , . . 567
oath and bond 567
removal of 567
term of 567
Continuous session ........ 564
Control over judgment for sixty
days 566
Criminal branch 564
bail bond — appearance 566
grand jury 566
interpreter for 568
* summons returnable — when . . . 566
term — what regarded as 566
General term — rules made at . . . 566
order-book 567
times for holding 567
Grand jury for criminal branch . . 566
Interpreter for criminal division —
appointed 568
oath administered to 568
presence at all sessions of court . 568
qualiflcations 568
salary— limit 568
term 568
Judges— election — tie vote 563
assignment of 564
commissions 564
of one branch may preside over
another 565
special judge 565
vacancy— how filled 563, 564
Judgment— control over for sixty
days 566
Jurisdiction of different branches . 564
assignment of cases 564
criminal cases 564
common and law cases 564
equity cases to chancery branch . 564
Rules made at general term . . . 566
Special judge in criminal branch . 565
Summary' proceedings — taxes on
realty 566
Summons in criminal cases — when
returnable 566
Taxes — collection by summary pro-
ceeding 566
Term— what regarded as 566
Transfer from court or docket ... 565
cases involving common fund . . 568
pending litigation--how distrib-
uted 567
Courts Immng continuous session —
Appeals granted within sixty days . 562
Assignment of cases for trial . . . 558
Bail bond and summons in criminal
cases 558
Bail in civil cases^sufficiency • • • 562
liability of receiver • . 562
Bills of exceptions — when prepared
and signed 563
^ . ^ , ^ PAG«.
Coorts — Continued,
Courts having continuous session —
Common law docket ....... 553
when action placed on 569
Constructive — service , . 560
Control of judgment for sixty days, 558
Counties in which to be held , . . 557
second-class city and county seat,
places of holding court 557
County seats, rule where there are
two 557
Criminal and penal cases, terms for 558
Bays for motions and trials .... 558
Depositions, taken on interrog-
atories 561
how taken and certified 561
notice, rules 561
Dockets, rule docket 559
common law 559
equity and equity trial 559
Equity docket 559
equity trial docket, cases to be
placed on 559
called when court pleases .... 659
cases city interested in 559
motions placed on 559
Grand juries, four each year . . . 558
meetings, when two places for
holding court 558
Interrogatories, when to be answered 561
Judgment, control for sixty days . 558
granting appeals 562
vacation or modification .... 560
Judicial sfttles, deposit required . . 560
advertisement of 562
sale bonds 562
terms of 562
Juries, selection of 557, 558
Motions docketed 559
objection to sufflciency of bail . • 562
New trial In equity, when applica-
tion to be made 560
Places of holding court, where two
county seats 557
grand juries . . . . : 558
jurisdiction, two county seats,
consent 557
juries, selection of 557
Pleading, amendment of petition . 560
answer, when due 560
filing with clerk, eflfeot 561
subsequent to answer, filing of . . 661
Practice, prescribed 558
amendment of petition . . • • . 560
answer, when due 660
appealff, granting of . ...... 662
assignment of cases 658
cases against cities 550
conform to that of courts with
terms 563
depositions 561
failure to plead, action docketed . 559
filing pleading with clerk .... 561
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704
INDEX TO CIVIL OODE.
PAex.
Coarti — Continued.
Courts having eontimums session —
Practice, interrogatories, when an-
swered 561
motions 559
objection to bail in criminal case, 562
ordinary action, trial docket . . 563
pleadings admitted, effect .... 559
pleadings subsequent to answer . 561
Process, defendant's answer, when
due 560
constructive service 560
criminal cases • • • 558
returning process 558
warning order 560
when returned, when two county
seats 557
Record of fiducial settlements . . . 559
Revivor of actions, cause shown
against 560
warning order to allow sixty days 560
Rule docket 559
Rules of court judicially noticed . 557
change in 558
Settlements of fiduciaries — records . 559
Summary proceedings as to taxes
on realty 559
Terms — what regarded as 558
Two county-seats — court held at
each 557
juries — selection of 557, 558
jurisdiction— consent 557
process when returnable .... 557
Vacation or modification of judg-
ment • • 560
Warning order 560
Fiscal courts —
Appeal from to circuit court .... 550
from to quarterly court 549
Jurisdiction of 550
Justices' courts — ewmoir.
Appeals from, how taken 724
appellant entitled to copy of judg-
ment 731
costs upon 727, 728
interrogatories, to adverse party . 718
option of appetlee, trial concerning, 730
quarterly court to, page 549.
time of taking 729
transmission of papers upon ... 725
trial of 726
Application of Code to 700
Attachments, trial of 721
Change of venue in, pa^e 574.
Continuance, affidavit for 315
Clerks of, duties and powers of jus-
tices as 702
Counter-claim, trial of in 720
District in which summons from to
be returned 710, 712
Docket of 704
Evidence In equitable actions in . . 708
Comts — OontinueeL
Justices courts—
Interrogatories in, to adverse party 716
time of answering 717
effect of not answering 717
provisions concerning . . . 140, 151
Judgment of, upon lost record . . . 719
upon set-off or counter-claim . . 720
Jurisdiction of, page 550.
Land not to be sold under execution
from 722
how to be sold under judgment
of 723
New trial in TTA
Pleadings in, when to be oral . . . 705
when to be in writing 705
Process from, to whom to be di-
rected 701
Provisional remedies in, trial of . . 721
Record book of 715
Set-off, trial of 720
Subpoena from, how served .... 709
punishment for disobedience of . 538
Summons from, issual of .... 39, 41
service of 47, 48
to what district returnable . 710, 712
to whom directed 701
when returnable 706
Testimony in equitable actions In . 708
Trial in, time of 706, 707
of equitable actions 708
by jury, when parties entitled to . 713
granting of new 714
of provisional remedies 721
Transcript of execution and Judg-
ment 723
in appeals from 724
Witnesses, continuance on account
of absent 315
depositions of, when to be taken,
554, 555
personal presence of, how secured, 556
Police courts —
Appeal from to quarterly court,
page 549.
(See further as to appeals police
courts of the several* classes,
page 551.)
Change of venue In, page 574.
Jurisdiction of, page 551.
Proceedings in — See Justice's
COUBTS, UNDBB OOUBTS.
Quarterly courts —
Appeals from, how taken 724
to, see page 549.
appellant entitled to copy of judg-
ment 731
costs upon 727, 728
interrogatories, to adverse party, 718
option of appellee, concerning trial
of 730
from to circuit court, page 548.
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nJDBX TO CIVIL CODE.
705
ssonoir.
CoHrti— Continued,
Quarterly courU —
Appeals from, time of taking . . . 729
transmission of papers upon . . . 725
trial of 726
Application of Ckxle to 700
Attachments, trial of 721
Change of venue in, page 573.
Continuance, affidavit for 815
Clerks of, duties and powers of
justices as 702
Counter-claim, trial of in 720
District in which summons from to
be returned 710, 712
Docket of 704
Evidence in equitable actions in . . 708
Interrogatories in, to adverse party, 716
time of answering 717
effect of not answering 717
provisions concerning .... 140, 151
Judgment of, upon lost record ... 719
upon set-off or counter-claim . . 720
Jurisdiction of, original, page 549.
appellate, page 549.
Land not to be sold under execu-
tion from 722
how to be sold under judgment of, 723
New trial in 714
Pleadings in, when to be oral . . . 705
when to be in writing 705
Process from, to whom to be di-
rected 701
Provisional remedies in, trial of . . 721
Record book of 715
Set-off, trial of ..720
Subpoena from, how served .... 709
punishment for disobedience of . 538
Summons from, issual of ... 39, 41
service of 47, 48
to what district returnable . 710, 712
to whom directed 701
when returnable . 706
Testimony in equitable actions in . 708
Trial in, time of 706, 707
of equitable actions 708
by jury, when parties entitled to . 713
granting of new 714
of provisional remedies 721
Transcript of execution and judg-
ment 723
in appeals from 724
Witnesses, continuance on account
of absent 315
depositions of, when to be taken,
554, 555
personal presence of, how secured , 556
CoHrti haybig Uh^ jiuif es—
See CouKTS.
Coartt ii continaooi session—
See Courts.
Covertare—
See Married Women.
Creditdr—
Attachment by— See Attachments.
Becomes a party, by presenting
claim to commissioner . . . 432
Claim of, against personal represent-
ative, lost by failure to present, 433
against legatees or distributees,
not lost by failure to present . 434
Injunction against, in action to set-
tle estates 436
Lien of on interest in joint property
levied on, sub. 3 660
may be enforced in equity, sub. 3 . 660
May have attachment against joint
property 208, 209
May sue on lost note or obligation . 7
for settlement of decedent's es-
tate 428
for settlement of trust estate . . 438
Must be made party if known to
action to settle estate .... 428
ordered to appear before commis-
sioner and prove claim . 430, 431
Must make demand of personal rep-
resentative before suit . . . 437
Provisions as to creditors of dece-
dent's estates apply to trust
estates 438
Credits-
Fixed in order of sale by courts gen-
erally 696
Cross-tppeal —
May be prosecuted though appellant
fails to appeal, sub. 3 . . . . 755
Method of taking, sub. 1 755
When failure to take bars right of
appeal, sub. 2 755
Cross-examination—
Of affiant on motion to discharge
provisional remedy 548
witness 594, 595
Cross-index —
Judgment book of 392
Cross-interrogatories —
What clerk must file, sub. 2 • . . 575
When party may file, sub. 1 . . . . 575
clerk may issue commission to
take depositions on 576
Cross-petition —
Allowed only in answer or reply,
sub. 1 Ill
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706
IKDBX TO CIVIL CODE.
ssonov.
Crott-petitioil— Continued,
Allowed for enforcement of lien
stated in petition 692
Answer may contain 05
Caption of, what to state 110
Defined, sub. 3 96
Pleadings that may be Ill
Prayer for relief in, sub. 1 .... 97
Proceedings on, sub. 3 : 97
Provisions of Code applicable to . 97
Replv may contain 98
What parties allowed against, sub.3, 96
Corator of penM oiuier disaMUty—
Action by 21, 36
against, sub. 2 35
Affidavit of, for warning order . . 58
Arbitration may be agreed to by,
sub. 4, 451
Cost, liability of for 37, 619
Defense by, formal unnecessary . . 126
Depositions taken on interrogatories
by consent of 572
Notice may be served on 627
to, may be served on attorney . . 632
Pleadings, defensive need not be
verified by, sub. 2 116
Venue of action against contractor
for work on 77
Damaget —
Action for included by action for
money, sub. 8 732
Allegations concerning, which must
be proved, sub. 4 126
concerning need not be verified,
sub. 5, 116
Assessment of by court 379
in action for injury to person or
character, sub. 1 331
on dissolution of Injunction . . . 295
by jury, in action for personal
property 330
Excessive, grounds for a new trial,
sub. 4, 340
Judgment for on failure to plead . . 379
in action for personal property . 388
when given by statute ..... 389
On affirmance of judgment or dis-
missal of appeal 764
on dissolution of injunction . . . 295
Rate of recoverable 345
Smallness of, when not grounds for
new trial 341
Verdict for, in action to recover per-
sonal property 330
Days-
Mode of counting acts between • . 681
Deadpersoa—
Provision as to testimony against . 606
Death-
See Revivor.
Of defendant does not discharge
levy of execution, sub. 2 . . 407
does not prevent conveyance by
• sheriflf, sub. 1 407
does not prevent execution against
survivor • • 405
Of plaintiff does not prevent issual
of execution 402
party does not prevent conveyance
by commissioner, sub. 3 . . . 394
cause for new trial 518
De btnt esse —
Deposition of witness may be taken, 558
and read, when 554
Debts-
Action for, before due 237
Arrest for, before maturity .... 238
Attachment for, before maturity . 238
Maturing pending action, recovery
on 135
Not due, when lien for not enforced, 694
Debtors-
Arrest of. See Arrest and Bail.
Judgment against, proceedings on
Debtors, |alat—
See Joint Debtors.
439
Decedeats—
Settlement of estates of. See Set-
tlement OP Estates.
Testimony of persons for themselves
against, subs. 2, 6, 7 .... 606
Venue of action for settlement of
estates of 65
for distribution and partition of
estates of 66
Verification of claims against ... 437
Decision of coart—
See Exception.
Ground for new trial if erroneous • 340
Law and facts separately stated . . 332
Decisions of Court of Appeals-
Duties of reporter with jwferenoe to 766
To be announced in writing . . "'*''
Declaration-
See Petition.
765
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INDEX TO CIVIL CODE.
707
Decreet —
8ee Judgments.
Deeds—
Commissioners. (See Commission-
ers.) .394
Hay be filed as exhibits 128
oral proof of, sub. 2 652
Sheri tf's after sale of property, sub. 1 407
may make after death of defend-
ant, sub. 1 407
Default-
Judgment by, in action at law . . . 859
in equitable action 360
for part of claim 380
• assessment of damages before
taking 870
Defect-
In proceedings not affecting sub-
stantial rights to be disre-
garded 134
Defectire bead-
New and sufficient bond may be ex-
ecuted for 682
Defect of iMities—
Ground for special demurrer, sub. 4, 92
Objection for, may be made in an-
swer 118
if apparent, waived unless de-
murred to, sub. 4 92
Waived unless taken by demurrer
or answer 92, 118
Oefeidants—
Action for discovery of 685
Assignors may be made 19
Claimant to be made 29
substituted for 80
Committee, when to be 86
Curator, when to be , 86
Demanding set-off or counter-claim
regarded as plaintiffs, sub. 86, 782
Entitled to judgment on set-off or
counter-claim ....... 887
to trial of set-off or counter-claim, 372
Ouardian, when to be 36
Injunction of judgment in favor of, 378
Judgment against part of in action
in contract 27
against part and continuance as
to others 868, 370
against one or more .... 369, 373
May proceed on set-off or counter-
claim, if plaintiff dismiss ac-
tion 372
Means what persons, sub. 86 • • . 732
SXOTIOV.
Defendants — OonHnued,
One or more may defend, if parties
numerous 25
Persons claiming adverse to plaintiff
may be made 23
united in interest may be joined
as 24
Substitution of plaintiff for officer
sued as 32
Unknown, provisions concerning . . 691
warning order against, sub. 7 . . 57
Defense-
Allegation necessary for support of
is material 127
Arising pendente lite, supplemental
pleadings 135
Assignment of thing in action does
not prejudice 19
Equitable must be pleaded in ordi-
nary actions 17
and legal may be united in plea,
sub. 2, 113
Infant, for 36
Legal and equitable may be united,
sub. 2, 113
Partial may be pleaded, sub. 2 . • 113
Person of unsound mind for . . . 36
Prisoner for 36
Time of making, generally .... 102
of making, if summons not served
in time 104
of making may be extended by
court 107
of making by infant ...... 891
extended to defendant construct-
ively summoned 408
how reduced to one year for ab-
sent defendant 415
absent defendant allowed five
years to make 414
Definite and certain —
Pleadings to be 87
Definitions 732
Delay-
Appeal taken for delay, disposition
of . . , . 759
Caused by transfer of action to
equity, bond required .... 14
Unreasonable examination of wit-
nesses may be stopped • . 579, 593
Delivery of property-
See Claim and Dblivert.
Denuwd—
Before suit, by creditor of dece-
dent's estate 437
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708
INDBX TO CIVIL CODE.
BBOTXOV.
DeoMiui — Contintied,
By pleadings, is action ! 2
Of counter-claim or set-oflf, is ac-
tion, sub. 34 732
Relief. See Relief.
Demttrren—
General 93
cost of failing to file paid by
pleader 93
filing of, to part of pleading ... 113
filing of in clerk's office generally, 109
Form of, page 616.
overruled, pleading after .... 133
sustained, amendment after ... 94
Special 92
Form ofy page 616.
ground for, may be stated in
pleading 118
may be filed in vacation in office . 109
overruled, pleading after .... 133
sustained, amendment after ... 94
waiver of, sub. 4 92
waiver of if filed ii^vacatioQ,sub.3, 109
DenUI—
See Traverse.
DeiMilare —
In pleading forbidden ....... 101
What is not 101
From State, to defraud, grounds of
attachment 194
ground for warning order, sub. 8, 57
about to be made to defraud,
ground for arrest, sub. 4 . . 153
Deposit in bank—
See Banks.
Deposit in court-
By arrested debtor, effeot of ... . 159
garnishee, effect of 223
or officer of corporation, when
required 225
party when required 303
How enforced 304
May be confided to sheriff . . . 805, 306
placed in bank 307
when may be loaned out 308
Depositioai^
Actions out of this State, in ... . 591
Adjournment of taking to another
time 568
to another place 569
explanation of cause of 570
Amendment of officer's certificate,
sub. 3, 588
smanov.
DepOSitfons— Continued.
Answers to interrogatories may be
read as 140, 141
may be read as, in ordinary action, 146
Caption of interrogatories, what
must state 575
Certificate of officer taking .... 582
amendment of, sub. 3 588
Form off page 644.
Commencement of taking 557
Commission to take, to whom to be
directed 577
when to be issued 576, 577
Form of, page 645.
Consent to taking of upon interroga-
tories 572
Copies of lost may be used .... 552
Cross-interrogatories, by clerk,sub.2, 57^
by party 575, 576
De bene esae, taking of 558
using of 558
Defined 545
Delay, unreasonable in examination,
officer may prevent 579
Divorce cases in 574
Examination of witness, mode of . 579
Examiners 559
office of 560
powers of 561, 562
Exceptions to, manner of taking . . 586
time of taking 587
when to be decided 588
waiver of error in decision con-
cerning 589
Fees, pre-payment of to examining
officer 583
when pre-paymentof not required 583
for issuing and serving subpoena . 584
Filing of interrogatories 575
cross-interrogatories, by clerk . . 575
cross-interrogatories, by party, 575, 576
Forma of caption and cerHfieate, p. 644.
Guardian ad litem may take .... 38
Insulting questions, not to be asked 579
Interrogation, unreasonably long of-
ficer may prevent 579
Interrogatories, caption of what to
state 575
filing of 575
notice of filing of 575
taking of on, when court may per-
mit or require 573
of on, when party may require 571
of on, when necessary (see
Amendment) 574
of on, who may consent to . . 572
of on, neither party to be present 581
Lost copies of may be used .... 552
Name of witness, when to be stated
in notice 566
and residence in caption of inter-
rogatories 575
Digitized by
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INDEX TO CIVIL CODE.
709
ssonoN.
VtfwtlUMm—Qmiinued.
Notice of filing interrogatories • . . 575
when service authorizes taking on
interrogatories 571
requisites of 566
service of 624, 625
punishment of officer for failure
to serve 633
name of witness to be stated in,
when 566
what is reasonable 567
when adjournment of taking, al-
lowed on 568, 569
Objections to questions to be de-
cided or noted by officer . . 579
Officers authorized to take, in this
State 562
authorized to take out of this
State 564
powers of, 'in conducting examina-
tions '. 579
power to compel witnesses to tes-
tify 535, 539
Party can not give for himself after
taking evidence, sub. 4 . . . 606
may be compelled to give as any
other witness, sub. 10 ... . 606
Persons whose depositions may be
used in any case 554
how compelled to testify in court, 556
Postage on payment of to examin-
ing officer 583
payment of to clerk before return-
ing to 588
Presence of parties not allowed at
taking on interrogatories . . 581
Prisoner when and how deposition
of to be taken 540, 541
Purposes for which may be used . . 552
for which must be used 552
Questions insulting officer may pre-
vent • • • . . 579
Rebuttal in, may be taken without
leave 553
Residence stated in caption of inter-
rogatories 575
Retaking of, leave necessary for . . 553
Return of, to examining officer to
amend certificate 588
Sending of by examining officer to
clerk 583
Subpoena for witness 578
disobedience of, how punished,
535, 538
fees for issuing and serving .... 584
Taking of, adjournment of . » . . 568
commencement of 557
commission' for 577
on interrogatories, when 571
on interrogatories 574
on notice 565
by what officers, authorized In
this State 562
SXOTIOK.
Depositiois— Continued.
Taking of, by what officers, author-
ized out of this State .... 564
presence of parties at, when for-
bidden 581
Testimony to perpetuate, who may
take 610
how taken 612
may be used when and how . . . 613
copies of, may be used when . . . 614
provisions as to that heretofore
taken 615
Witnesses, competent to give . . . 605
not bound to go out of county to
give 534
whose depositions must be taken . 554
persona] presence of in court, how
secured 556
Writing of by witness or examiner . 580
Depositories—
Of money paid into courts generally 307
Remedies against generally .... 788
Depnties—
Ministerial officers generally . . . 678
Destmction—
Of property in forcible entry and
detainer, may be enjoined . . 467
Detainer—
(See FoRCiBLB Entry and De-
tainer) 452
Determiiuition—
Of court or officer how pleaded . . 122
What, is a judgment 368
Detinue—
(See Claim and Dblivbrt) .
180
Devisees-
Are real representatives of deced-
ents, sub. 18 732
Disability-
See Infants, Married Women,
Persons op Unsound Mind,
Prisoners.
Meaning of word, sub. 31 732
Disciiarfe —
Of attachment, by bond to perform
judgment 221
upon motion, on merits 266
upon motion for irregularity . . 268
upon rendition of judgment in
action when order of, is
final.. . , , . .266. 267
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710
INDEX TO CIVIL CODE.
sBonoN.
DiBcharf e— Continued.
Of jury without agreeing 328
levy of execution, by injunction
bond 278
levy of distress warrant 653
Disclosttre—
See Discovert.
Defendant in action for personal
property may be required to
make 193
Of defendant in action to enforce
judgment 443
claimant as to property at-
tached 220, 257
garnishee to officer 205
garnishee to court 224, 226
plaintiff in action against non-
resident 412
• plaintiff of set-oflf or counter-
claim 413
Discofltifliuince—
Of action by plaintiff does not pre-
vent trial of set-off or counter-
claim 372
generally by court 28
by court or party 371
Of appeal does not prevent prosecu-
tion of cross-appeal, sub. 8 . . 755
When necessary on first day of term 363
Discount-
Defendant's right to not prejudiced
by assignment, when .... 19
of interest in judgments for debt
not due, sub. 8 247
Discovery —
See Disclosure.
Action for, allowed, to enforce judg-
ment 439
allowed to learn name, and resi-
dence of joint debtor .... 685
Defendant and garnishees, when
compelled to make 443
of evidence, ground for new trial,
sub. 7, 340
DismisMl^
Of action, as to some defendants,
and trial as to others .... 363
in equity as to part of defendants, 367
does not prevent trial of set-off or
counter-claim 372
error as to form of, not cause for, 8
for failure to secure costs .... 617
without prejudice by court for
want of parties 28, 371
by plaintiff without prejudice be-
fore submission 371
Dlsnissal— Continueih
Of any cause of action by court
without prejudice .... 371
by plaintiff before submission . . 371
Of appeals, damages on 764
does not prevent prosecution of
cross-appeal, sub. 3 . . . . 755
proceedings on in court below,
sub. 1, 761
DIsoliedieiice—
See Contempts.
Disposition-
Fraudulent of property, is ground
for attachment 194, 237
Dissolution—
See Injunction.
Distress for taxes—
Attachment of property held by
officer under 203
duty of officer 204
Distress warrant-
Action for property taken under . . 33
substitution of plaintiff for officer
sued 32
Appraisement of property dis-
trained 646
Bond to discharge levy of 653
to officer before levying 652
to suspend in part 658
motion on 654
defense that may be made to • . 654
trial of in justices' court .... 655
trial of in court 656
Claimant of property distrained,
bond of 652
judgment on 657
Form of vmrrani and bonds allowed
under, page 642.
Distribntees—
See Legatees and Distributees.
Distribntion—
Venue of action for 66
District-
To which
summons from
court is returnable .
Inferior
. .710,
713
Division of land and aliotneot of dower-
Action for may be transferred from
county to circuit court,
sub. 11, m
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INDEX TO OiyiL CODE.
711
8BOnOK.
Diviiton of laod and aHotnent of 4ower—
Continued.
Appeals to Ck)urt of Appeals in ac-
tions for, sub. 12 499
Case to be tried as ordinary action,
but without jury, sub. 10 . . 499
removal of, from county to cir-
cuit court, sub. 11 499
Circuit or county court has juris-
diction, sub. 1 499
Commissioners to make division,
appointment of sub. 4 . . . 499
duties of, sub. 6 499
two may act, sub. 9 499
compensation of, sub. 15 . . . . 499
to convey according to division,
sub. 7, 499
Costs to be apportioned between
parties, sub. 13 499
County court has jurisdiction, sub. 1, 499
Deeds, by whom made, sub. 7 . 499
to be recorded, sub. 8 499
Equity jurisdiction not affected by
Code, Bub. 16 499
Guardian may file petition for,
sub. 2, 499
Parties, all persons interested to be
made, sub. 3 499
Petition for, who may file, sub. 2 . 499
contents of, sub. 1 499
Transfer of case from county to cir-
cuit court, sub. 11 499
Verification of pleadings not re-
quired, sub. 14 499
DiiisioH of real property-
Be fore sale for debt, sub. 1 . . . . 694
In action to sell property of person
under disability, sub. 7 ... 494
Divorce-
See Alimony.
Action for, to be in equity .... 420
Allowance of maintenance in, pen^
denteliie 424
Annulment of judgment in . . 426, 427
Appeal not allowed * from order
granting, page 547.
Depositions in need not be taken on ,
interrogatories 574
what certificate of officer to must
state 422
Interrogatories as to property ... 421
Judgment in, how annulled . . 426, 427
for restoration of property . . . 425
can not be set aside after term . 344
Maintenance allowance of pendente
lite 424
how payment of enforced .... 424
Petition, allegations of must be
proved 422
what facts must be stated in . . 423
Pleadings in need not be verified . 421
SKCTION.
Divorce — Continued.
Property, restoration of 425
questions concerning answered on
oath 421
Residence of parties must be proved, 422
Venue of action 76
Wife, how to sue and be sued in . . 34
Doclcets—
Court of Appeals —
Appeals may be entered on when, 740
arrangement of, on, sub. 1 . . . 754
printing and distribution of,
sub. 2, 754
Circuit court —
Common docket, arrangement of
cases on 349
entry on, of actions 348
entry on of return of summons . 670
entry on of traverses in forcible
entry 465
must show parties and attorneys 353
must show whether summons
served in time, and issues
formed . ...... 354
transfer of issues or actions* to or
from. See Transfer.
trials to be according to order in
which action stand on . . . 314
when to be called for trial of
issues 358
when to be called for pleadings . . 359
Equity docket, entry on of actions 351
entry on of return of summons . 670
must show names of parties and
attorneys 353
transfer of issues to and from. See
Transfer.
trial to be in order in which ac-
tions stand on 314
when to be called for trial .. 357, 358
when to be called for pleadings . 860
Motion docket entries on 352
entries on are motions 362
must show names of parties and
attorneys 353
must show date and object of mo-
tions 355
to be called first hour each day . 356
Justice's docket —
one docket 704
service of summons to be entered
in full 670
trial of actions in order in which
they stand on 314
Doors-
Breaking of by officer to execute at-
tachment 675
to execute order of arrest .... 676.
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712
INDEX TO OIVIL CODE.
tsonoH.
D«wer—
(See DiviBiON op Lakd and Al-
lotment op Dower.) . . . - 499
Jurisdiction of equity to allot Dot
changed by Code, sub. 16 . . 499
Sale of, provision as to 495
When court may order oompensa-
tion 495
court may direct sale of 495
Edncation—
Board of, venue of action against . 68
Eiectment—
See Land.
Description of land in action of . . 125
Recovery of any part, defendant to
pay costs 125
ElectloB—
As to causes of action improperly
joined 85
Between inconsistent pleadings,
sub. 4. 113
Privilege from arrest while attend-
ing 666
Elisor—
May serve process, amendment to . 667
Enclogare —
See Inclosure.
EoforciBf satisfaction of jodfneBts—
Action for, upon return of ntdla
bona 439
attachment allowed without affi-
davit or bond 441
discovery of property, how en-
forced 443
garnishees, answer of to be veri-
fied 440
lien on defendant's property, how
acquired 442
surrender of money or property
in 443
venue of 70
verification of answers, to be
made in person 440
Eof lisli lansaafe—
Pleadings must be In 115
Eotries—
Original, in account book, testimony
of party as to \ 606
Entry—
(See Forcible Entry and De-
tainer.) 452
E^nitnMe actiou—
Alimony or divorce 420
Answer, when to be filed . . . 102-106
Bringing of, by one or more for
several 25
Defense of, by one or more for sev-
eral ...•••. •••.. 25
when to be filed 102, 104
Description of, in caption of peti-
tion, sub. 2 110
Discovery of property, for 439
of names of defendants 685
Dismissal of as to some and trial as
to others 367
Divorce or alimony 420
Dower, allotment of, sub. 16 ... . 499
Errors as to form, not to cause dis-
missal . . 8
correction of, by plaintiff .... 9
correction of, by defend ant, sub. 1, 10
correction of, by court, sub. 3 . . 10
waiver of 15
Eviuence in, to be by deposition . . 552
oral evidence in 552
Exhibit in, constitutes part of rec-
ord, when, sub. 2 128
General provision as to 6
Indemnity, by sureties, before debt
matures 237
after debt matures 661
Injunctions, generally 271
of judgment less than $25 forbid-
den 284
Issue out of chancery trial of . . 11, 12
Interrogatories in 140
Judgments, to enforce satisfaction
of 439
■.^ to enjoin 285
against part of defendants, when
allowed 367
correction of ordinary forbidden, 17
to be on merits 371
.lustices' courts in 706
Land, to allot, sub. 16 499
Legal and equitable causes joined,
sub. 2, 113
Lost writing on 7
May be against part of defendants . 26
. against part of defendants jointly
bound 27
Ordinary judgment not corrected in 17
Police courts in . 708
Quarterly courts in 708
Reply when to be filed 105
Sale of real property of infants, for, 489
of joint owners, for 490
Satisfaction of judgment, for . . . 439
Settlement of decedent's estates . . 428
of trust estates 438
Sureties by, before debt matures . . 237
after debt matures . ^ 661
Time of filing defense in circuit
court 103
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INDEX TO CIVIL CODE.
718
BSOTIOK.
Eqaltabie tctioas — Continued.
Time of flliDg, when summons not
served in time 104
Time of reply and subsequent plead-
ings in circuit court . . . 105, 106
may be extended by court .... 107
Transfer of from one docket to other 8
ordinary docket to 8, 9, 10
docket from 10
attachments in different courts . 210
court may order 10
waiver of right to 16
bond when required before ... 14
for trial of issue 12
Trial of, in motion hour 867
issues in 861
plaintiff may demand when . . . 866
as to part of defendants .... 367
on third day of term .... 860, 861
when they stand for 864
when interrogatories annexed to
pleadings 866
if no issue made by answer • . . 866
if part of defendants only, sum-
moned 867
Equitible defense—
Defendant pleading to give bond be-
fore transfer 14
Not ground for enjoining judgment
in ordinary 17
Equity-
Transfer of ordinary action to . . . 10
court may order 10
generally 11
Errof^
See New Trial.
As to form of action, correction of • 9
not cause for dismissal or abate-
ment 8
may be cured by transfer .... 10
waiver of 16
Grounds for new trial 840
In assessment of amount of recovery,
ground for new trial 840
Judgment reversed for 614
modified for 614
Motion to correct, when necessary
before appeal 616, 768
Not affecting substantial rights dis-
regarded 184, 888, 766
Of law, excepted to, ground for new
trial 840
Waiver of, as to decision upon ex-
ceptions to depositions . . . 689
as to misjoinder of causes of ac-
tion 86
as to proceedings adopted .... 16
Escape of arrested debtor—
Liability of officer for 174
how fixed 176
Estates of decedents —
8ee Settlement of Estates.
EsUtes in tmst—
See Sbttlehent of Estates.
Estate, vested —
Is included by word property, as
used in Code, sub. 11 ... . 782
Estoppel—
Pleading of, in answer, sub. 2 . . . 95
in reply, sub. 2 98
in subsequent pleadings 100
generally, -sub. 2 118
express admission of facts not
necessary in, sub. 6 118
rejoinder may contain 99
reply may contain plea 98
Evidence-
Absent defendant, sub. 8 606
Adverse party required to give,
sub. 10, 606
Affidavit by » ... 648
provision as to, sub. 11 606
Answer to interrogatories — (See In-
terrogatories.) 140
Assignor of claim when incompe-
tent, sub. 9 606
Attachment trial in 263, 264
Attesting witnesses, provision as to,
sub. 11, 606
Attorney, when not to testify,
sub. 6. 606
Books, entries in, provision as to,
sub. 7, 606
Burden of proof who has . . . 626, 626
party holding to introduce first . 817
in action to recover land .... 126
Competency of witnesses generally,
606, 606
Contradiction of witness . . . 696, 698
Dead person against, sub. 2 . . . . 606
Depositions may be read as . . 648, 662
copies of may be read as ... . 662
Equitable actions in 662
oral testimony in 662
Exhibits, proof of 662
Examination of witnesses 698
direct 694
cross 694
leading questions, when permitted, 696
Good character, evidence of ... . 699
Handwriting, proof of disputed . . 604
Husband and wife, provision as to,
sub. 1. 606
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714
IKDBX TO CIVIL CODE.
Evitfeice — Continued.
Impeachment of witness . . . 696, 598
Infant against, sub. 2 606
Injunction on trial of 291
Interrogatories, taking by 140
Introduction of 817, 626
order of 692
Judge may testify 608
Juror may testify 608
Jury, how informed as to after sub-
mission 821
Leading questions, when permitted 596
Lunatic against, sub. 2 606
Minister, when not to give, sub. 5 . 606
Modes of taking 648
Newly discovered ground for new
trial 840
Non-resident against, sub. 8 . . . . 606
Not to be stated in pleadings ... 119
Order of introduction of 692
Party may be required to give . 149, 606
Perpetuation of 612, 616
Person present may testify .... 602
Priest when not to give, sub. 6 . . 606
Prisoner for or against, sub. 8 . . 606
may testify . 640, 641
Rebutting evidence 317
Re-examination of witness .... 600
Return on summons entry of Is . . 670
Separation of witnesses 601
Subpcena defined 628
duces tecum 628
clerk to issue 529
who may issue 680, 681
execution of .....••. . 682, 688
acknowledgment of 683
Verdict not sustained by, set aside . 840
Wife and husband, provision as to,
sub. 1, 606
Witnesses liable for costs, when . . 586
damages, when 586
arrest of 587
action against, when not allowed, 542
competency of, generally . 606, 606, 607
subpoena for 528
Writings, proof of, disputed .... 604
EuniiuitidB—
Leading questions in 596
Of defendant or claimant, concern-
ing ppo|)erty attached .... 220
concerning.specific property order-
ed to be attached 267
in action for personal property . 198
' garnishee, concerning property at-
tached 226
plaintiff as to claim against ab-
sent defendant 412
Oral, defined 546
Party having burden must begin,
sub. 8, 817
Re-examination of witness with
Itave 600
ExaoiiutkMi— Cbn/tnu^.
Re-examination of witness whose
deposition has been taken
when allowed 66S
except in rebuttal, amendment to. 658
Separation of witnesses during . . 601
Witnesses of, court to control . . . 598
direct and cross of, defined . . . 694
direct of, must be completed be-
fore cross begins 694
Exaninerf—
Appointment and oath of 669
Embrace what person, sub. 88 • • • 782
Not required to leave office .... 668
Office of, where to be kept .... 560
Powers of concerning administering
of oaths 661
concerning taking of affidavits . 549
concerning taking of depositions, 662
Exceptions—
Bill of, when to contain all the evi-
dence, sub. 2 886
how prepared 886
Form of bill, page 645.
bystander's bill 887
controverting by affidavits • . . 887
certificate of judge to . . . 887, 889
when to contain substance of evi-
dence, sub. 1 886
instruments of like character,
how copied in, sub. 8 . . . . 386
party to prepare and present to
judge, sub. 1 887
time may be given to prepare,
sub. 2, 887
to include all decisions excepted
to, sub. 2 887
to be signed by judge, sub. 8 . . 887
may be corrected by judge, sub. 8. 887
how attested by affidavits of
bystanders, sub. 8 887
affidavits controverting to be filed
in office, sub. 4 887
when judge to certify that i*i con-
tains all the evidence .... 889
Certifyingof billof 887, 889
Decisions of court to, how taken, 888, 886
Depositions, amendment of certifi-
cate 688
how to be taken 686
when to be taken 687
when to be decided 688
waiver of error in decision upon . 689
Entry of on record sufficient .... 886
Form of bill of, not particular,
sub. 1, 885
How taken, generally 16, 888
to error as to form of action ... 16
to decision entered on record . . 886
May be supported and controverted
by affidavits, sub. 8 887
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DTDIX TO CIVIL CODE.
715
BBOTIOK.
Exufdon^Oontinued,
Not to be ref^arded unless substan-
tial 888, 766
Preparation of bill of 885
Rnles for preparing biUy page 646.
Time of taking 884
reducing to writing 884
to reduce to writing may be given,
sub. 2, 887
for preparing bill of, may be al-
lowed, sub. 2 887
Exchaose, bill of—
See Bill op Exchange.
Execntions —
Action on return of *' no property "
of 489
Against body of defendant .... 168
Form off page 688.
Bond of indemnity before levy of . 641
before sale under 642
to obtain discharge of levy of . . 278
to obtain suspension of sale under, 645
appraisement before taking . . . 646
objection to appraisement .... 649
to what court returnable . . 641, 651
motion on against obligors . . . 648
motion of obligor to discharge . . 650
does not release levy 650
Form off page 640.
Claimant of property levied on,
bond of 645
Death of party to Judgment, effect
of (see Revivor) 401
Defendant not having property sub-
ject attachment 194
proceeding against on return of
nulla oona 489
of nulla bona from justice's court 728
Discharge of levy of, by injunction
bond 278
by bond to suspend sale under . . 645
Forms of bonds under. See Forms.
Issuing after death of plaintiff in . 402
after death of one defendant
against survivor 405
on judgments generally 401
on bond for money attached . . . 282
on bond for purchase money,
sub. 8, 697
Joint property, levy of on inter-
est in 660
appraisement of property levied
on 660
lien on property levied on . . . 660
return of officer 660
when officer may repossess him-
self of property 660
Justice's court, land can not be sold
under 722
BBOTION.
Execvtion — Continued.
Justice's court, transcript of, froi^ . 728
how land sold under, from . . . 728
proceedings on, after return of
nulla bona 728
Levy of, indemnity to officer making, 641
on interest in joint property . . . 660
how discharged by injunction . . 278
not discharged by execution of
bond . 650
Motion to release levy of 650
Officer, bond of indemnity prevents
suit against 648
Quarterly court, land can not be sold
under, from 722
Replevy of, not allowed on bond in
attachment case 282
on sale bond not allowed, sub. 8, 697
Form of bond^ page 641.
Sales under, indemnity to officer be-
fore making 641
suspension of 645
of interest in joint property for-
bidden 650
when to be for cash 282
to be for cash on sale bonds, 697-8, 829
Surplus to be returned to court . . 644
court to make disposition of . . . 644
Trial of right of property abolished, 669
Execotors —
See Representatives.
Exemption—
Of property from attachment .
200
Exhibits—
Action based on must be filed or ac-
counted for 120
as evidence may be filed 128
Genuineness of, when admitted . . 527
Of like character, statement of in
bill of exceptions, sub. 8 . . 885
statement of in transcripts, sub.8, 787
Oral proof of, sub. 2 552
ExistlBf actions--
Provisions of Code which apply to . 887
Exonerations —
See Arrest and Bail.
Expenses —
See Costs.
Express admission—
Not necessary in plea of avoidance
or estoppel, sub. 6 118
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716
INDEX TO CIVIL CODE.
sxcnox.
Fact-
Issue of, arises how 810
how to be tried 812, 818
pleadings necessary to form al-
lowed, sub. 1 89
trial of by court .... 812, 818. 881
separation of law and fact . . . 882
Facts-
Occurring after pleading, supple-
mental allowed 185
when supplemental proceedings
unnecessary 185
Of which judicial notice is taken
need not be stated in plead-
ings, sub. 1 119
Proved, conforming pleading or pro-
ceeding to 129, 184
Failure of proof—
Variance, which is deemed to be . 181
Failure to plead—
See Pleading.
Fees—
For issuing subpoRnas and summon-
ing witness 584
issuing warrant of arrest and exe-
cuting it 584
Of attorney for absent defendant,
sub. 6, 59
in Court of Appeals . . . sub. 8, 786
commissioners to divide land, al-
lot dower, sub. 15 499
examining officer for taking depo-
sitions ... 588
guardian ad litem, sub. 4 .... 88
Person appointed by court to serve
process 668
Female-
See Married VV"oman.
Interrogatories to, in ordinary
tion. sub. 2 .
Femes covert-
See Married Woman.
Feminine fender, sub. 2 .
148
782
Fiduciaries-
See Settlement op Estates.
Actions, for settlement of decedent's
estate 428
for settlement of trust estates . . 438
by generally 21
Liability for costs, sub. 2 87
•■OTIOV.
Fiduciaries— 0>n^tnu«tf.
Settlement of accounts of, in county
court 471, 472
may be recorded 472
Statutes, provisions of adopted as to. 471
Venue of actions by and against 66, 67
Filiuf—
See Exhibits- Pleading.
Exhibits, foundation of action . . 120
relied on as evidence 128
Papers, time of, to be indorsed by
clerk 669
Pleadings in clerk*8 office, in equita-
ble action 104
in actions generally 108
demurrer with 1C9
Supplemental 185
on demurrer being overruled - . 188
time of. See Pleading.
Writing relied on as evidence . . . 128
foundation of action 120
Final orders-
Judgments are 868
Mode of appealing from 734
Orders concerning receivers are . . 298
concerning mandamus, which are, 475
concerning attachments, which
are 266, 267
"When motion made to correct be-
fore appealing from . .516, 763
Fine-
Affidavit to obtain order of delivery
to state property was not
taken for, sub. 5 181
Venue of action for recovery of,
sub. 1, 68
Fiscal court-
Appeal from to circuit court, page 548
Jurisdiction of, page 550
Force—
** Prevented by" not sufficient re-
turn on process 677
Foreclosure—
Of mortgage forbidden 875
Forcible entry and detainer—^
Detainer defined 452
Does not bar action for trespass . . 468
Forcible entry defined 452
Inquest of jury upon 459
Judgment on return of inquest . . 460
and execution from circuit court, 466
form of 460
Judge or justice to try 454
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INDEX TO CIVIL CODB.
717
BBonov.
ForciUe eitry and detiiier^Cbn/tnuM?.
Jury trial not necessary 454
not to be summoned unless . . . 454
Limitation of 469
Oath to jury 456
Papers to be preserved ...... 462
return of by Justice to circuit
court 468
Proceedings if jury disagree .... 459
Rent proceedings do not bar recov-
ery 468
Traverse in and bond 468
liability of obligors in bond ... 464
trial of .465
damages recoverable on 464
Judgment and execution on . . . 466
restraint of waste pending .... 467
time to file 468
transcript, fee for 462
Verdict 459
Warrant, form of 454
how executed 455
return of • . . 456
of restitution 461
Waste pending traverse restrained, 467
Witnesses' attendance, how secured, 458
subpcBna for 458
Writ of, form and substance of . . 454
service of 455
trial of 454. 456
ForeifB corporattont—
See Corporation.
Actions against. See Constructivb
Sbrvicb ; Warning Order.
Attachment against propertv of • . 194
Defined, sub. 21 '. . . . 782
Service of summons on 51
Venue of action against 72-75
Warning order against 57
Forfeltare —
Holding office after act of, is usurpa-
tion 486
Venue of action for recovery of,
sub. 1, 68
Form of actloi —
Error as to, not cause' for dismissal
or abatement . '• 8
correction of, generally 9
correction of, by transfer .... 10
waiver of 15
Exceptions, provisions concerning,
sub. 1, 885
Pleadings 88
Fonu—
Affidamt— p^^..
Agent or attorney of 627
Arrest, order of to obtain . . • . . 629
paob.
Fonns — Ckmiinued,
Affidavit —
Attachment to obtain 688
Claims against decedent's estate, 628, 629
Defendant moving to transfer to
equity, to require to give
bond 627
Delivery of personal property, order
of to obtain 680
Guardian ad Uiem, to appoint . . . 627
Party by 627
Pleading to require party to verify, 628
Sureties on bonds, as to sufficiency
of 629
Warning order, to obtain 628
Atmoers 617 to 622
Appeals —
Appeal bond to inferior courts . . . 651
Order granting appeal to Court of
Appeals 650
Summon on appeal from inferior
court 651
Supersedeas bond 650, 651
Supersedeas 650, 651
Appraisement —
Property taken under attachment . 685
Property taken under execution . . 640
Property taken under distress war- *
rants 648
Property taken under order of de-
livery • . 682
Arrest —
Affidavit to obtain order of 629
Bond of plaintiff 629
Bond of bail 680
Order of 680
Warrant of, against witness .... 648
Attachment for rent —
Affidavit to obtain 685, 686
Bond of plaintiff 636
Order of 686
Atta4^'ment —
Affidavit to obtain 688
Appraisement 685
Bond to discharge 685
Bond of indemnity to sheriff . . . 684
Bond to Joint-owner 684
Bond to have property forthcoming, o85
Bond of plaintiff to obtain .... 688
Notice, to garnishees 684
Order of attachment 688, 684
BUI of exceptions and rules prqpar-
ingy pages 645, 646.
Bonds — ^^
Appeal to circuit and quarterly
. courts 651
Arrest to obtain order of 629
Attachment in 684, 685
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718
INDEX TO CIVIL CODE.
PAOB.
Forms — Continued.
Bonds —
Attachment to obtain 638
Attachment for rent to obtain . . . 686
Bail bond 680
Claimant's bond, to suspend sale
under execution or distress . 640
CJosts for 626
Defendant before action transferred
to equity 626
Defendant to retain property taken
under order of delivery . . . 682
Forthcoming of attached property,
for 686
Indemnifying bonds 640
Indemnity to sheriff before levying
attachment 684
Injunction to obtain 686, 687
Joint owner of attached property
to, by plaintiff 684
Non-resident to, before judgment
against 626
Plaintiff before suing on lost obliga-
tion 626
Refunding bond 626
Replevin bonds 641
Sale bonds 626, 641, 648
Supersedeas bond on appeal to
Court of Appeals ...... 660
on appeal to circuit court • . . . 661
Suspend sale where property of less
value than rent 642
Tenant to discharge distress war-
rant 648
Witness for appearance of, under
arrest 644
Capias ad satisfaciendum .... 639
Oam and delivery of property —
Affidavit to obtain order of .... 680
Affidavit of surety as to sufficiency 629
Bond of plaintiff 681
Bond of plaintiff, when property
taken under execution . . . 682
Bond of defendant to retain .... 682
Order of 681
Deirmrrers • . . 616
Depositions —
Certificate of examiner 644
Commission to take on interrogato-
ries 646
Notice 644
Subpcena for witness 644
Warrant of arrest for witness . . . 644
Distress warrants —
Appraisement, form of 648
Bond to discharge 648
Bond of indemnity to sheriff before
levying 642
Bond of claimant 642
Bond to replevy 642
^ PAOX.
Vorm^^Coniinued.
Distress V3arrant»^
Form of warrant . 642
Sale bond under • . . . . 648
Execvtions —
Formsof 688, 689
Garnishees —
Notice to 684
Injunction —
Bond of plaintiff to obtain . • . 686, 637
Order of 637
Judgments and orders . . 647 to 649
Justice of the peace —
Execution, form of and bonds under,
688-642
Summons issued by 644
Subpoena issued by 628
Petitions —
Account on 699
Administrator by and against . 696, 697
Alimony for 609
Assault and battery 601
Assignee against payor of note • . . 698
Assignee against assignor 604
Attachment bond on 604
Bill of exchange on 607
Contract for breach of ... . 699, 608
Corporation by or against 698
Decedent's estate to settle 611
Division of land 618
Divorce for 60S
from bed and board ....... 609
Ejectment . 601
Guardian's bond on 606
Fraud or deceit 608
Fraudulent conveyance to set aside,
611, 618
Guardian's bond on 606
Indemnifying bond on 606
Infants' real estate, sale of . . 614, 616
Insurance policy on 608
Libel for 600
Lien on land to enforce 612
Lost note on 698
Malicious prosecution 600
Merchant's account 699
Mortgage lien to enforce 610
Negligence of common carrier ... 606
New promise 607
Note on 69«
Personal property for recovery of . 602
Promissory note on 698
Railroad company for killing cattle, 602
for negligence 606
Recovery of land 601
Sales of infants' real estate . . • 614, 616
Seduction 600
Settlement of decedent's estate . . 611
Slander 699
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INDKX TO CIVIL CODE.
719
FAB*.
Pdnu — Cdniinued,
Petitiona —
Surety against principal 601
Trespass to realty 601
Upon return of *' no property" . . 610
Warranty for breach of 608
Work and labor 699
Headings —
Verification of by principal .... 627
Verification of by agent or attorney, 627
Replevin bonds 641
Beplies 622
Sale btmds 626, 641, 643
Subptena 643
Summons • • • 624
Supersedeas ••••••• 650, 651
Venditioni 639
Verificatim 627
Warning order 625
8KOTI02Y.
Forthcomlig boids—
By party seeking to enjoin execu-
tion 278
Joint owner of property levied on,
sub. 4, 660
For attached property .... 214, 268
Provisions as to defense to .... 216
Sureties not released by bankruptcy
of principal 698
FMimlatiooof caoseof action —
Writing constituting, to be filed or
accounted for 120 '
Praichise—
Usurpation of. (Sere Refealino or
Vacating Charters.) . . . 480
Prattd—
Attachment to vacate purchase ob-
tained by 260
allowed in other cases 194
New trial allowed for 618
Vnndwkmt pnrcliase—
Attachment in action to cancel • • 260
Freehold—
Owner may have reversion or re-
mainder sold 491, 492
Friend^
See Next Fribkd.
8KCTI0K.
Food io court—
Attachment of 207
Deposit of, generally 807
Loan of 808
Qaraishees—
Action and attachment against . . 227
action against when to be dis-
missed, sub. 2 228
on return of ** no property" against, 489
Answer by 224, 226
Answers of to be verified in person, 440
Appearance by 224
Attachment how executed on, sub. 8, 208
Attachment of property of .... 227
Bond of, for money attached . . . 226
enforcement of • 226
Costs, when allowed to 228
Disclosure by, or proof against . . 226
punishment of for failure to make, 226
Duty of to furnish statement to of-
ficer 206
punishment for failure so to do . 206
Execution of attachment upon,8ub. 8, 208
Liability of for money or property
attached 226
Lien, created by service of sum-
mons 442
Payment of money by 228
Proof may be heard against .... 226
Punishment of for failing to give
information to sheriff .... 206
for failing to appear 226
Service on, how made, sub. 8 . . . 208
Summoning of 199
duty of when summoned .... 208
Summons, when lien created by,
service of on 442
Qeoder—
Each includes every, sub. 8 . . . . 782
•Qeneral attachments —
See Attachments.
Qeaeral demarrers—
See Demurrers.
Qeoerai iatereat—
Action by or against one or more
for all 26
Qeaeral verdict—
See Jury.
Qennineness —
Of writing filed with pleading when
admitted 627
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720
INDEX TO CIVIL CODE.
•xonov.
Qovemor of Keoticky—
Evidence of must be taken by depo-
sition 564
when personal presence of as wit-
ness required 666
Qurdiu—
Action by, may be brought in his
own name 21
for persons under disability ... 86
for division of land 499
against ward for sale of real prop-
erty 489, 491
against by ward, sub. 8 86
Arbitration by, sub. 4 461
Bond to be given by, before sale of
property, sub. 1 498
if bond not given sale void, sub. 8, 498
purchase money to remain lien,
until bond given, sub. 1 . . . 497
guardian permitted to receive in-
terest although bond not given, 497
Costs, liability of, for, sub. 2 . . . 87
when required to secure 619
Defense of infant to be made by . . 86
must be made, or report filed,
sub. 8, 86
failure to file or make report con-
tempt, sub. 8 86
Depositions on interrogatories by -
consent of ^2
Foreign, may sue in this State,
sub. 4, 86
Guardian ad litem appointed to act
in place of, sub. 2 88
Ky. Stat, applicable to 471
Notice to 627
when may be served on attorney
for 682
Pleadings which need not be veri-
fied by, sub. 2 116
Settlement of accounts of in county
court . 472
May be recorded 472
Venue of action by ward against . 67
Qurdiafl ad litem—
Affidavit upon motion to appoint.
Form of, page 627
Appointment of 88
when there is a guardian, sub. 2 . 88
affidavit to be filed, before, sub. 1, 88
summons to be executed on in-
fant, before, sub. 1 88
Change of, sub. 2 88
Clerk may appoint . 88
Defense or report must be filed by,
sub. 8, 86
failure to file, may be treated as
contempt, sub. 8 ..... . 86
judgment can not be rendered un-
til made, sub. 8 86
sscnov.
Qwirdiu mk IXbtm-^CkmUnued.
Depositions taken by without pre-
payment of fees 683
Duty of as to preparing case, sub. 8, 88
may take depositions, sub. 8 . . 88
Fees of, to be taxed as costs, sub. 4, 88
Infant for 86
Married woman, prisoner or insane,
sub. 6, 84
Must be practicing attorney, sub. 2, 88
Notice to 627
when may be served on attorney
for 682
Person of unsound mind for ... . 86
Pleadings which need not be veri-
fied by, sub. 2 116
Powers of to compel the production
of testimony, sub. 8 88
Prisoner for 86
Qualifications of 88
Report by what to state 86
when to be filed 86
penalty for failing to file • • • • 86
Summons on for infant 62
Witnesses summoned by • • • • . 8S
Htfldwritiog, dispotcd—
See Act 604
Heirs-
Actions against generally • • • 26, 27
against to settle decedent*s estate,
sub. 2, 428
by to settle decedent's estate,
sub. 1. 428
Are real representatives, sub. 18 . 782
Judgments, revivor of, by 402
revivor of, against 407
Revivor of actions against 606
how made 606
must be within twelve months . 608
in the name of .609, 611
HoUday—
Bond given on, in action valid . . . 664
Process may issue on 668, 664
may be executed on, when affida-
vit made 668, 666
Hoase—
Breaking of, by officer, to execute
attachment 676
to execute order of arrest .... 676
HMbaad—
See Married Woman.
Action against by wife generally,
sub. 1, 84
for alimony or divorce ..... 420
by, against wife, sub. 1 84
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INDEX TO CIVIL CODE.
721
sxonoH.
HmImuuI— Continued.
Defense for, when wife may make,
subs. 8, 4, 34
Divorce action by for 420
How made party in action against
wife begun before marriage . 84
May consent that depositions be
taken upon interrogatories* 572
Notice on, in action by or against
wife 629
Testimony of, for or against wife,
sub. 1, 606
Wife, when may bring action for,
subs. 8, 4, 34
Idiotg—
See Persons of Unsound Mind.
Action by 86
Are embraced in term ** persons of
unsound mind," sub. 40 . . . 782
Defense for 86
Real property of, sale of 489
Summons on 62
Impeachmeflt of witoess —
By party producing him 696
adverse party 697
Imprisoiment —
How evidence of persons confined
may be taken 640
when evidence must be taken by
deposition 640
In penitentiary, is disability, sub. 81, 782
renders persons incompetent to •
testify, sub. 8 606
party can not testify against,
sub. 8, 606
Iflclosare —
When oiBcer may break to execute
attachment 676
to execute order of arrest .... 676
licompeteocy—
See Witness.
locoQsisteiit pleadlog —
Forbidden, unless, sub. 4 118
locorporatiofl—
Action to repeal articles of
locnmbraoces—
See Lien.
Memoifylog bood—
See Indbmkitt.
(46)
480
SXOTIOK.
Ifldemflity—
Action for, by surety before debt
matures 287
after debt matures 661
attachment in, before debt ma-
tures, sub. 2 288
attachment in after debt ma-
tures, sub. 2 662
Bond of to defendant in action on
lost writing 7
to owner of interest in joint prop-
erty attached 208
to oiBcer before levying attach-
ment 211
before levying distress warrant, 662
before levying execution . . . 641
to officer upon taking property
under order of delivery ... 191
Claimant must look to bond of . . 643
Forms of bond of, pages 684, 640.
Index—
Of record books in justice's courts . 716
judgments in judgment book • . 892
transcripts, sub. 12 787
lodiviflible property —
Proceeding to sell real 694
personal 696
Indoraemeflt — .
See Assignment.
To be made by sheriflf upon process, 674
tlofants —
Actions against for division of land,
sub. 2, 499
by for division of land, sub. 2 . . 499
against for sale of land . . . 489, 491
special provisions concerning . . 492
against guardian, venue of ... . 67
against guardian may be brought
by next friend, sub. 8 . , . . 86
of, when to be brought by guard-
ian 86
of, when to be brought by guard-
ian for division of land,
sub. 2, 499
of, when to be brought by next
friend, sub. 8 86
Allegations against, when to be
proved, sub. 1 126
of counter-claim or set-off to be
proved, sub. 2 126
Appeal by, time in which to be
taken 746
Bond to be executed to in sale of
land, sub. 1 493
if not given, sale vofd, sub. 8 . . 493
if not given, purchase price to re-
main lien, sub. 1 497
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722
INDEX TO CIVIL CODE.
SXOTION.
Iflfaots — Con tinned.
Bond, form of bond to be given by
guardian* sub. 1 498
court must approve, sub. 2 . . . 498
Certiorari may be granted to, sub.l, 748
Defense of actions against, how
made, sub. 8 86
no judgment against until de-
fense made, sub. 8 86
to be made by guardian ad litem
when 88
of action against on constructive
service, sub. 5 69
no judgment against non-resident
until defense made, sub. 7 . . 69
Distinctions between plaintiffs and
defendants 126
as to taking depositions upon in-
terrogatories 674
as to granting new trials to . . . . 891
^s to privileges in Court of Ap-
peals, sub. 1 748
as to time in which to appeal . . 746
as to amendment of assignment of
errors, sub. 2 766
as to verification of pleadings,
sub. 2, 116
Foreign, action by, sub. 4 .... • 86
Guardian of. See Guardian.
defense for by, sub. 8 86
action for by, sub. 1 86
when may bring action for in his
own name 21
liability of for costs, sub. 2 . . . 87
when required to secure costs . . 619
Guardian ad litem. See Guabdian ,
AD Litem.
defense for, by, sub. 8 86
appointment of, sub. 1 88
must be attorney, sub. 2 88
duty of, sub. 8 88
compensation of, sub. 4 88
Judgment against not allowed before
defense or report, sub. 8 . . 86
copy of not allowed to be served
on 416
showing cause against after age . 891
vacating, for errors not shown by
proceedings, sub. 6 618
rendering before defense or report
misprision, sub. 2 617
Married women who are. See Mab-
RiBD Women.
Next friend may bring action for,
when, sub. S 86
who may act as, and affidavit of,
Bub. 1, 87
liabilityof for costs, sub. 2 ... 87
when required to secure costs . . 619
New trial. See Judgment supra,
granted to 891, 618
Non-resident, action by, sub. 4 . . . 86
svonox.
Iflfaats — Continued.
Notice to, how served ••••••• 627
when maybe served on attorney
for 682
Summons against, how served ... 62
on custodian for 62
on guardian for 62
on father for 62
on mother for 62
on guardian ad litem for 62
actual, not allowed out of this
State .... 66
Testimony of, when not admissible, 606
party against, subs. 2, 7 606
loferior courts—
See Courts.
lo forma fMuiperis—
Guardian, committee, next friend,
curator may sue in, sub. 2 . • 87
Prepayments for depositions not re-
quired of persons suing in . • 688
loformatioa—
Denial of knowledge and, when suf-
ficient, sub. 7 118
Of injunction, binding 283
by jury as to law or evidence after
case submitted 821
as to situation of property ordered
to be delivered 193
concerning attached property • . 220
from garnishees, by officer .... 205
from garnishees, by court .... 226
InjHoctioa—
Affidavit as to previous application
for 278
to obtain issual of without notice, 276
may be read on application for . 277
filing of 287
Application for, party who has an-
swered to be notified .... 276
must be on notice in all cases, un-
less 276
for reinstatement of time to be
granted, for 296
for reinstatement of, before whom
and how made 297
Assessment of damages on dissolu-
tion of 296
Bond for, to stay proceedings on
judgment, sub. 4 278
required before issual of, gen-
erally 279
motion for additional security on . 288
Form of, pages 686, 687.
Cause for which, may be obtained . 272
to stay proceedings upon Judg-
ment 17, 286
stay proceedings upon Judgment . 623
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INDEX TO CIVIL CODE.
723
8X0TI0N.
Ifljimctiofl ^Ccmiimied.
Cause for which may suspend pre-
mature judgment 524
prevent action against decedent's
estates 486
prevent action against trust es-
tates 488
stay proceedings upon judgment
in justices' court 284
stay waste in forcible entry and
detainer 467
prevent damage pending motion
for mandamus . 476
stay judgment to which set-off
may be pleaded 878
Damages, assessment of by court
upon dissolution 295
Decedent's estates, to prevent action
against 486
Defined 271
Disobedience of, how punished . . 286
Dissolution of, motion for if granted
without notice 289
by Court of Appeals .... 296, 747
motion for if granted by justice . 290
after answer filed 291
after answer filed, postponement
of 292
after answer filed, decision
upon : . 293
after answer filed, only one al-
lowed 294
evidence on motion for, must be
written 291
Evidence on motion to dissolve must
be written 291
Execution, to stay when improperly
revived 406
to stay proceedings on, generally, 278
Granting of, by whom allowed . . 278
Information of, binds party .... 288
Judgment of, for defense discovered
after trial 17
to stay proceedings on, generally, 286
from justices' court 284
value of property in dispute must
exceed $26 284
granted only by court rendering
judgment 285
when execution improperly re- 406
vived
in action in which judgment if
obtained could be used as set- 878
off 878
by party seeking to vacate or
modify 628
to stay proceedings on premature, 624
pending trial of set-off 878
Justices, two may grant 689
Mandamus, to prevent damages
pending motion for 476
Mandatory 271
Modification of 296, 747
8S0TI0V.
Iijnictloo— Continued,
Notice of application for 276
dispenses with service of order . 282
reasonable notice to be given . . 276
to defendant who has answered . 276
to dissolve or modify 290
to dissolve or modify upon whole
case 291
See Notice.
Order of, when and by whom
granted 278
when and by whom issued . . . 279
requisites and execution of . . . 281
granted before judgment, court
to control 274
Form of, page 687.
Reinstatement of, time to apply for, 296
by judge Court of Appeals . . . 297
application for, how and before
whom made 297
Set-off — injunction of judgment
pending trial of 878
Temporary 276
Time of disposing of in inferior
courts 721
reception of to be indorsed by
officer 674
Trial of, in inferior court 721
AVrit of, abolished 271
lajHries—
Character to, joinder of causes of
action for, sub. 6 ..... . 88
statement of extrinsic facts un-
necessary in action for . . . 128
Injunction may be obtained to re-
strain. See Injunction.
Person and property to, joinder of
causes of action for, sub. 6 . 88
Venue of action for, to person or
character 74
of action for, generally 78
lojory to real property —
Venue of action for 62
Inquest —
(See FoRciBLB Entbt and De-
tainer.) .... 462
loiaae persois —
See Person of Unsound Mind.
Insolvency —
Grounds for attachment 194
Oath of, may be taken by arrested
debtor 168
how taken and proceedings upon, 168
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724
INDEX TO CIVIL CODE.
lostroctioas—
May be asked for by jury ..... 821
Statement of in bill of exceptions,
sub. 2, 887
When to be given to jury, sub. 6 .817
Written to be, if requested, sub. 6 . 817
lastmmeflts—
Of like character, how copied in bill
of exceptions, sub. 8 . • . . 885
how copied in transcript, sub. 8 . 787
Iiterrofatories to partit^^ ContinttecL
Oeneral jmmgUms concerning —
Answers to must distinguish be-
tween knowledge and belief . 147
punishment for failing to answer . 161
verification of 148
When to be taken as true on failure
to answer 160
Interrofatories to witoesses —
See Depositions.
lasaraflce (
Venue of action against 71
loterest—
Abatement of in judgment before
debt is due, sub. 8 247
Bonds of purchasers to bear .... 697
Common or general, one or more
may sue or defend for all . . 26
intemal Improremeits —
Action to repeal charter of com-
panies 482
loterpleadiog—
Affidavit of party asking for . . . 80
Authorized 80, 81
By claimant 29
Interrocatories to ^rtles —
Circuit court —
In equitable actions 140
answer, may be read by either
party 140
not confined to response .... 141
shall be filed, when 142
when to be filed to entitle party
to trial 866
may be annexed to any pleading . 140
party interrogating may testify
as to new matter in 608
In ordinary actions, may be annexed
to pleadings when 148
answers to, when to be filed . . . 144
failure to file, effect of as to
postponement 146
not confined to response .... 146
party interrogating may testify
orally as to new matter in . . 609
Inferior courts —
May be filed against certain per-
sons 716
answers to, when to be filed . 716, 717
on appeals from 718
Iflterventioi—
By claimant of property in litiga-
tion
29
Irreievait natter-
To be stricken from pleading, with
cost
121
Irre^raMe iohiry—
May be prevented by injunction . . 272
Issve—
Arises when 809
Defined 809
Equitable trial of 860, 861
Kinds of 809
Material must be formed by plead-
ings 114
Of fact, arises how 810
how to be tried 812, 818
pleadings necessary to form al-
lowed 89
law, how to be tried 812
Ordinary in, trial of 868, 869
Out of chancery trial of .... 11, 12
Transfer of to proper docket gen-
erally 9
of equitable to ordinary 10
of ordinary to equity 10, 11
Jailer—
Arrested debtor must be kept bv . 168
must give bond for release before,
if in prison 168
Definition of word as used in Code,
sub. 16. 782
Liability of, as bail, and discharge
of 174
as bail, how fixed 176
of bail to, if bail adjudged insuf-
ficient 176
Kotice to, of motion on bail bond
taken by him .166
exonerated if motion is not made,
or does not prevail 166
Order of arrest, copy of, when to be
delivered to 178
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INDEX TO CIVIL CODE.
725
Jailer — Continued
Process to be directed to, when . . 667
duties of as to execution and re-
turn of. See Shbripp.
J«iaderof actioos—
Causes of action generally .... 88
in pleadings, sub. 2 118
improperly joined may be stricken
out by court 86
may be stricken out by party . 84
may be stricken out, generally . 871
Defense, of causes of, sub. 2 ... 118
Election between causes ...... 86
Parties plaintiffs having interest in
action 22
united in interest must be ... . 24
for sale of real property of infants, 489
of joint interest 490
of real estate generally . . 489-498
for division of land, sub. 2 ... 499
Parties defendant claiming interest, 23
united in interest 24
severally bound on contract ... 26
jointly bound on contract .... 27
Striking out cause improperly
joined 84, 86
Waiver of objection for misjoinder, 86
Joint debtors-
Action against 27
by, for indemnity after debt ma-
tures 661
after debt matures, provisional
remedies in 662
before debt matures 287
before debt matures, provisional
remedies in 288
Attachment against 209
Defined, sub. 80 ,. . 782
General provisions as to ... 247, 248
Joint property sold upon attach-
ment against one, when . . . 209
Judgment against one not bar
against others 27
in action against 209
Property of one can not be attached
on grounds against another . 194
Joint owners—
Sale of real property without con-
sent 490
if share of each owner worth less
than $100 490
Joint property—
Attachment of interest in, bond to
be executed 208
sale of under, when allowed . . . 209
Defined, sub. 29 782
8KOTION.
Joint property — Continued,
Levy of execution on ...«•. . 660
appraisement of, sub. 1 660
lien of creditor on, sub. 8 . . . . 660
when creditor may require forth-
coming bond, sub. 4 660
Sale of, in action by joint owner,
490, 496
if share of each worth less than
$100 490
Joint stock company —
Summons, service of on non-resi-
dent 61
Joint tenants—
See Joint Property.
Defined, sub. 28 782
Jadlciai notice-
Facts showing need not be pleaded . 119
Judges—
OetwraUy —
Defined, sub. 12 782
May be called as witnesses in actions
before them 608
certify affidavits, sub. 1 649
take depositions 662
• Court of Appeals —
May allow petitions for rehearing
and suspend mandate .... 760
reinstate attachments 270
reinstate injunctions 297
dissolve or suspend injunction . . 747
Circuit courts —
Mav appoint or change guardian ad
litem, sub. 2 . . 88
receiver to sell attached prop-
erty 218
receivers on motion 298
grant order of arrest in action for
debt not due 288
order of attachment in debt not
due 288
attachment for specific property, 261
injunction 278
injunction to stay proceedings
under execution 406
injunction to stay waste in'forci-
ble entry and detainer ... 467
hear motion to dissolve or modify
injunction 290, 291
motion to discharge attachment, 268
motion to vacate order of arrest, 177
order joint property levied on re-
taken bv officer, sub. 4 . . . 660
order sale of attached perishable
property 218
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726
INDEX TO CIVIL CODE.
Judges — Continued,
Circuit courts —
May permit committee, guardian,
next friend to sue in forma
pauperis 87
take depositions 562
take privy acknowledgment of an-
swer of infant married woman,
sub. 4, 498
Special judges, page 569.
County courts —
May act as clerk of quarterly court
or empower county clerk to
act 708
issue writ and try forcible entry
and detainer 454
grant order of injunction .... 278
of attachment before debt due . 288
of specific attachment .... 251
shall make settlement of trust es-
tates 471
Special judges circuit court, p. 569.
Absent defendant against, sub. 7 . 69
Action to enforce collection of . . . 489
venue of 70
Against part of defendants, 869, 870, 878
Assessment of damages before . . - 879
Attachment sustaining, effect . . . 261
discharging, effect 260
Award entered as, sub. 7 451
Before debt due 242
form of 248
Book of and index 892
Bonds that have force of .... . 697
Collection of to enforce 439
Claimant's bond on * 648
Collection of may be enjoined . . 878
Confession of practice, effect . . 881-888
Continuance as to some, judgment
as to others 870
Contract, against parties bound on,
27, 181
Conveyance of property, sold under, 894
Co<»bIigor against principal .... 244
against co-obligor 244-247
Copy served on warning order de-
fendant 415
manner of serving 416
effect 415
Co-surety against principal .... 244
Counter-claim on 887
Cross-index of 892
Damages for 889
Default in action at law 859
equitable action in 860
for part of clafm 880
assessment of damages, before
taking 879
JndKBeflt— Continued,
Defendant constructively summoned
against 409
bond to be executed before . . . 410
Defendants against part of . . 870, 878
not actually summoned, sub. 7 . . 59
Defined 368
Divorce case in, restoration of prop-
erty 425
annullment of 426, 427
not set aside after term 844
Enforcement of 489
Entry of, on record 390
Equitable actions in 860
Error must be substantial to re-
verse 184
Execution on 401
after death of plaintiff 402
Forcible entry and detainer, form of, 460
Index book of to be kept 392
Infant against 36
In joining collection of 878
Injunction, pending proceedings to
vacate 528
of generally 284, 286
Joint debtor against joint debtor, 245, 247
Lien created by. when 418
Lien to enforce 376
Lost writing on 7
Modification of 518, 518
Mortgage in action to enforce . 374, 376
Motion, when obtained by .... 444
against what persons 444
client against attorney 444
surety against principal 444
written pleadings not required . . 449
how given 449
Non-resident against 59
Ordinary actions in 859
correction of 17
Parties for or against 869
Personal, when forbidden 419
Pleading of 122
Power of court over after term . . 518
Premature, correction of . 516, 617, 519
suspended by injunction .... 624
Proof of facts before 379
Requisites of 890
Reversal of 613
Revivor of 407
Satisfaction of to enforoe 439
of to be entered 393
Several defendants against • • • . 80
Set-off on 387
of judgments 877
Single defendant against 79
Summary proceedings in 449
motion for 444
Surety against principal 243
against co-surety 248
Tenant's bond, to discbarge distress
warrant 653
Transitory action in . . • . 78, 79, 80
Uncontested amount for 880
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UTDBX XO Civil. CODE.
727
•sonov.
Jndgmeiit — Continued,
Vacation of, petition for 620
conditionson which vacated . . . 521
of generally 618, 618
Verdict in conformity to 884
exception 884
against 886
court to direct form of on . . • . 885
generally 827, 828
Void, motion to correct before ap-
peal 768
Judgment book-
Duties of clerks concerning . . 892, 398
Satisfaction of judgments to be en-
tered on 898
Ja4lctaliotice—
Facts of which, taken not to be
stated in pleading, sub. 1 . . 119
Judicial sale-
See Sales by Order op Court.
Jnrlsdlctioi of courts—
Court of Appeals, page 547.
Oircuit Gourt —
appellate, page 548.
original, page 548.
County court, page 549.
Fiscal court, page 550.
Justice's courts, page 550.
Police courts, page 551.
Q^arterly court —
appellate, page 549.
original, page 549.
Facts conferring, need not be stated
in action on judgment ... 122
Objection to, by special demurrer,
sub. 1, 92
by answer 118
failure to make is not waiver,
sub. 4, 92
When one defendant, summoned
in county 79-82
defendant summoned out of • . . 78
Jiror—
May be called as witness 608
J«ry—
Admonition to, when permitted to
separate 820
Assessment of amount of recovery
by 829
Challenge of 816
sxonoN.
Jary — Continued,
Conversing with others during trial
forbidden 820
Damages assessed by, on dissolution
of injunction 295
on failure to plead or after de-
cision of issue of law .... 879
excessive allowed by, cause for
new trial 840
for detention of specific property,
to be assessed by 880
smallness of, assessed by in action
for tort, not cause for new
trial 841
Discharge of, causes for which
allowed 822
without verdict, time of retrial to
be fixed by court 828
Duty of, after case is submitted . . 819
Formation of, not changed by Code, 816
Forming opinion by before submis-
sion, forbidden 820
Information may be asked by . . . 821
Issue of fact may be tried by . . . 818
in action for iffjury to person or
character 812
Kept together, to be 819
Misconduct of, cause tot new trial . 840
Officer in charge of 819
Place, view of by 818
Placed in charge of officer, when . 819
Pollingof 824
Real property view of by 818
Rendition of verdict by 824
how done 825
Separation of 819, 820
Swearing of commencement of trial, 590
Trial by, may be waived 881
in certain actions must be de-
manded 812
right to, authorizes transfer of
action 10
parties not entitled to in inferior
court, unless 718
Value jury to assess 880
Verdict, announcement of 824
rendition of 825
assessment of amount of recovery
in, when necessary 829
assessment of damages and value
in action for property .... 880
may be general, separate general • 826
inconsistent, judgment to pursue
separate-general 827
judgment notwithstanding . . . 886
not sustained by evidence cause
for new trial ..•••••. 840
foreman to sign 825
clerk to read 825
defined and described . . . 826, 827
written to be 825
polling of jury 824
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728
INDEX TO CIVIL CODE.
ssonojr.
Jnsttce of the peace—
See CouKTS.
Affidavit, taking of by 649
certifying of, by 561
Arbitration of controversies before,
sub. 9, 461
Bonds, return of before 661
return before of bond to discharge
distress warrant 668
motion on 654
trial of motion on 666
Clerks of their own courts 702
the word ** clerk" embraces,
sub. 89, 782
Courts of. See Coukts.
Defined, sub. 16 782
Depositions may bo taken by . . . 562
Executions, provisions concerning
the issual of by 661
land can not be sold under, issued
by 122
Forcible entry and detainer, trial of
by 464
Injunction may be granted by two, 278
of judgments of f^ less than
$25 forbidden 284
Powers, as to writs of forcible entry, 464
Process, appointment by, of agent
to serve 701
Provisional remedies may be granted
by two 689
Keotacky Statutes-
Provisions adopted concerning pro-
bate of wills 470
civil proceedings in behalf of
Commonwealth 460
property conveyed in trust . . . 488
settlement of accounts of fidu-
ciaries 471
settlement of decedents' estates . 487
exemption from execution . • . . 200
Koowledge—
Denial of, and information when
sufficient, sub. 7 118
Und—
Action for, description of in . . . . 126
joinder of causes of, sub. 2 . . . 88
venue of 62
answer of defendant, what to
state 125
Burden of proof in action to recover, 126
Conveyance of by commissioner.
(SeeCoMMissiONBR.) 894
Costs in action to recover 126
Division of. (See Division of Lands) 499
Dower, allotment of 499
Idiots, sale of 489
Infants, sale of 489
Joinder of actions concerning- ... 88
sscnow.
Lu4— Continued,
Joint owner, sale of 490
Jurisdiction of equity over, sab* 1% 499
actions concerning 62
for recovery of 62
partition of 62
sale of 62
lien on to enforce 62
injury to 62
Lunatics, sale of • • . 489
Married woman *s, sale of 498
Person of unsound mind, sale of . . 489
Partition of 499
Petition in action to recover .... 126
in action to subject 126
Sale of under execution from in-
ferior court forbidden .... 722
under judgment of inferior court . 728
for debt 694
terms of and how made .... 696
bonds executed and lien re-
tained 697, 699
persons under disability 489
Laodiord—
(See Forcible EhrrBT and De-
tainer) 462
Action against by tenant for wrong-
ful distraint 88
Attachment by, for rent 196
form of affidavit and bond, pages
686, 686.
Distress warrant 662
form of and bond under, page 642.
bond of tenant to discharge . 658, 668
appraisement before taking . . . 658
motion for judgment on 664
defenses allowed to 664
trial of 665, 656
judgment on 657
Uw—
Issues of to be tried by court • • . 812
Presumptions of, not to be stated in
pleading 119
Stated separately from facts . . . 882
Lawyer-
See Attorney.
Leading qaestioa —
When allowed, in ezaminatioD • • 695
Leaviog coaaty of resideace—
Authorizes attachment, when,
sub. 4, 194
By party, after commencement of
action, effect of summons else-
where 82
To defend action, party can not be
summoned by plaintiff ... 81
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INDKX TO CIVIL CODE.
729
8xonov.
Leaving coioty of nsldtnu— Continued.
Witness leaving county of residence
to obey subpoena can not be
sued 642
Legatee and dlstribotee^
Action by or against, to settle de-
cedent's estate 428
for distribution, partition, or sale
of 66
Liable to actioi^ to extent of estate
received 484
Refunding bond may be required of, 486
Venue of action to settle decedents'
estate 66
Levy-
See Attachment, Execution,
DisTBEss Warrant.
Liability and discharge 'of liail—
(See Arrest and Bail) 180
Llbei and slander-
Defendant may plead truth and
mitigHting circumstances . . 124
Intrinsic facts need not be stated . . 128
Joinder of actions for 88
Smallness of damages, not ground
for new trial 841
Venue of action for 74
Lien—
Action to enforce 692, 694
Attachment allowed in action to
enforce 249
Created on defendant's property in
action to enforce judgment . 442
on property of defendant con-
structively summoned .... 418
by attachment 212
by execution on interest in joint
property 660
Cross-petition in action to enforce . 692
Defendant constructively sum-
moned on, property of ... . 418
Enforcement of, for debts maturing
pendente lite 1 85
r for debts due defendant 692
judgment may be without time to
pay money 874
in action for, personal judgment
may be rendered ....... 876
Execution on interest in joint prop-
erty, of 660
Preservation of, to modified judg-
ment 521
Real property sold under judgment, 699
Receiver in action to enforce . . . 298
in action to enforce mortgage . . 299
saonoN.
Lien — Continued.
Release of 699
Retained on property sold 699
Sales for satisfaction of 694
Supplemental pleading in action to
enforce 185
Venue of action to enforce .... 62
When debts are owned by different
persons, sub. 8 694
Life estate—
Action for sale of reversion or re-
mainder 491
Life tenant-
Partition of lands by 499
Limitation—
Action by creditor against legatee
or distributee 484
Appeals from inferior courts . . . 729
to Court of Appeals •••••• 745
Application for new trial 842
for ground discovered after judg-
ment 844
by infant 891
by defendant constructively sum-
moned 414, 416
Inquisitions of forcible entry and
detainer 469
Issual of execution 401
Revivor of actions 608
Lis I
Debts maturing during action . . 185
for sale of real estate, sub. 8 . • 694
Ground for special demurrer ... 92
May be relied on in answer, when . 118
Waiver of objection concerning, 92, 118
Litigation—
Claimant of property in, may inter-
vene 29
may be interpleaded 80, 81
may be substituted for officer
sued 81, 82
Deposit in court of subject by gar-
nishee 820
by garnishee 226
by party 808
Loan—
Of money by court 808
Local action-
See Venue of Actions.
Lost baggage-
Testimony of husband and wife
concerning, sub. 1
606
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780
INDEX TO CIVIL CODB.
Lost |a4fiBent8—
Action on 7
Renewal of in inferior court . . • 719
Ust wrltiflg—
Action on, may be ordinary or equi-
table 7
Form of bond to be given by plaint-
iff, page 625.
Lnnaticfr—
See Persons op Unsouito Mikd.
Action by 86
against . 86
Evidence against 606
New trial to 618
Notice how served on 627
Premature judgment against, cor-
rected 617
Real property of sale of 489
Sale of wife's inchoate right of
dower 496
Summons, how served on 68
Venue of action against 69
Maiitenaoce—
Wife pending action for divorce
424
Majority—
Of persons authorized, may act . . 679
Maadamas—
Ck)urt to decide all questions in, or-
ders to be final 475
may make preventive orders in . 476
Judgment affecting Common wealth,
appeal 478
Mandamus defined 477
Motion for 474
notice of ^ 474
court to decide questions on . • • 476
granting is final order 475
refusing is final order 476
Petition for 474
Temiwrary order of 476
Writs of, how obtained and prose-
cuted 474
how enforced 476
Maodates of Coart of Appeals-
Enforcement of, by Court of Ap-
peals 762
Proceedings on, in courts below . . 761
When to issue, sub. 1 760
Marie—
Of person who can not write, suffi-
cient signature, sub. 7 . . . 782
to be attested by a witness, sub. 7, 782
Marriace—
Of female party, husband may be
joined with her, sub. 6 . . . 84
Married woauui—
See Husband.
Action by and against 84
when she may sue and be sued
alone 84
husband must be joined with her
generally . . . . ^ 84
against her and husband, she may
defend for him 84
by or against husband, when she
may sue or defend for him . 84
when she marries pending, hus-
band made party 84
for division of land and allot-
ment of dower 499
Depositions for or against, when
may be taken on interroga-
tories 672
Disability removed, as to actions by, 86
as to actions against 86
non-resident 69
yeriflcationsof pleadings, sub. 8, 117
traversing allegations of plead-
ings, subs. 1, 2 12^
showing cause against judgment, 891
non-resident 416
premature judgment against,
sub. 2, 617
taking depositions on interroga-
tories 678, 674
testimony of party against,
sub. 7, 606
service of notice on 627
certiorari, sub. 1 748
time to appeal to Court of Ap-
peals 746
transcript of record for Court of
Appeals, sub. 6 787
service of summons on oat of
State 66
Division of land or allotment of
dower to, sub. 2 499
Dower contingent, right of may be
sold 496
Evidence of, when competent for
husband, sub. 1 606
Infant, sale of land of, for invest-
ment, sub. 6 489
bond to be executed by husband,
sub. 1, 498
court to indorse its approval on
bond, sub. 2 498
sale void if bond not given, sub. 8, 498
sale of land for investment, she
must answer on privy exami-
nation 498
proceeds of sale of land of, how to
be invested, sub* 4 . . . *• . 494
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INDEX TO
SSCTIUK*
Married wwuMm^ContinuetL
Infant, how proceeds to pass on her
death, sub. 6 494
when proceeds to be paid to her,
sub. 2, 497
proceeds to be separate estate,
sub. 8, 497
interest on proceeds may be paid
to her, sub. 4 497
bond nor examination not re*
quired when, sub. 1 496
Lunatic, sale of inchoate right of
dower of (see reference to) . 495
May not act as next friend, sub. 1 . 87
Notice to, when may be served on
husband 629
Of unsound mind, how summons
served on 68
Real property of, sale of ...... 498
Summons may be served on, out of
State 56
on for husband, when 58
Wife of lunatic must be defendant
to action to sell his land, sub. 8, 492
when summons against husband
to be served on 58
Marsluil—
City, process from Inferior court
may be directed to 701
Mascttliiie Kender—
Defined, sub. 8 782
Master comailssioaer—
See OOMHISSIONBH.
May take affidavit, sub. I 549
Material allegatiofl—
Defined 127
When taken as true unless traversed, 126
Material issae—
Must be formed by pleadings ... 114
Material Tariance—
Amendments to cure 129
Defined 129
What is not, amendment to . ... 181
Matter-
Irrelevant or redundant, to be strick-
en from pleadings 121
Matarity—
Arrest or attachment for debt be-
fore 288
CIVIL CODB. 731
Measare of damaf es^
See Damages.
Mesoe profits-
Action for, not barred by proceed-
ings in forcible entry and de-
tainer 468
Minuter—
Not to testify concerning confession
made to him, sub. 5 606
Ministerial officer-
May act by lawful deputy 678
take affidavit of bail 164
take affidavit of surety 688
Minor —
See Infant.
Miscellaneoas proceedings-
Authorized by Ck)de 616, 662
MiscellaneoHS prorisions of Code . 678, 699
Miscondact—
Of jury, prevailing party, or attor-
ney, ground for new trial,
sub. 2, 840
Misfortune-
Unavoidable, ground for new trial,
sub. 7, 518
Misjoinder-
Of causes of action, correction of . 85
Waiver of objection for 86
Misnomer-
Correction of 184
Misprision —
See Clerical Misprision.
Mistakes—
In pleading — See Amendment.
Mitigating clrcnmstances—
And ^truth may be pleaded in libel
or slander 124
Modification—
Of injunction — See Injunction.
Of judgment— See Judgment.
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732
INDEX TO CIVIL CODE.
•XCTION.
Moiey—
Action for, includes action for dam-
ages, sub. 8 782
Attachment of, in court 207
Deposit of, by defendant in lieu of
bail 169
in court by trustee or party may
be required 808
in banli by court 807
Enforcement of surrender of, in ac-
tion to enforce judgment . . 448
Garnishee may pay to sheriff or into
court 228
May be confided by court to sheriff, 806
lent by court oj consent 808
Moflth—
Means calendar month, sub. 25
782
Mortgage-
Appointment of receiver in action
to enforce 299
Attachment may be granted in ac-
tion to enforce 249
Foreclosure of, forbidden 875
J udgment in rem and in personam in
action to enforce 876
Lien to enforce 874, 692, 694
Sale ordered without giving time to
pay money 874
When sale may be ordered for debt
not due, sub. 8 694
Motton docket-
Clerk to keep 847
Entries on 852, 855, 862
Hour each day for motions .... 856
Mottoas—
Abandonment of 447
Appeal to dismiss 757
Attachment to discharge 265
for additional surety on bond . . 286
Bond to suspend execution sale, to
discharge, sub. 2 650
execution sale, for judgment on . 648
distress warrant, for judgment
on 658
Claimants* bond on 648
Client against attorney 444
Defined 628
Docket of to be kept by clerk . . . 847
calling of 856
entries on 852
entries on, must show date and
object of 855
entry on is motion 862
Error to correct before appeal . 616, 768
Guardian ad litem to appoint,
sub. 2, 88
Hour each dav for 856
sBcnoa
Motioif— Cbn^titfd
Injunction to dissolve or modify . . 289
after answer filed 291
on the whole case 292
how and before whom made ... 290
only one allowed on whole case . 294
for additional surety on bond . . 288
Judgments which may be obtained
by. (See Summary Proceed-
ings) 444
to set-off in same court 877
to aflSrm as delay case 759
Mandamus for writ of 474
New trial, for 840
Notice of 445
OflScer against surety for costs . • 444
Party against surety for costs . . . 444
PleadingB not required 449
Prohibition, writ of to obtain . . . 474
Summary proceedings by. (See
Summary Proceedings) . . 444
Surety against principal 444
for additional on bail bond ... 165
Transfer of action and issues. See
Transfer.
Vacate order of arrest or reduce bail, 177
Moltiplicatioa of actiou—
Costs unnecessary plaintiff to pay . 687
Moflicipal corporatiofl—
Service of summons against, sub. 2, 61
Master—
Service of process oh person attend-
ing 666
Matihited—
Action on writing, bond. Judgment
or record, that is 7
Nane of ^rtief—
Action for discovery of ....... 685
Correction of mistake concerning . 184
Ne exeat—
Writ of abolished 688
Nefotlable ^per—
Action on parties to 26
Provision as to assignment of chose
in action does not apply to . 19
New matter—
Party may testify as to if stated in
answers to interrogatories, 608, 609
New ^rties—
Court may require to be made .
28
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IKDBX TO CIVIL CODE,
788
8XCTI0N.
New trial—
Absent defendant, time to apply for, 414
Accident, grounds for 840
After term 518
Application for by motion 848
when to be made 842
by petition 844
by defendant constructively sum-
moned 414, 415
Casualty, ground for 518
Clerical misprision, cause for . 517, 519
Defendant, constructively sum-
moned, time to apply for . . 414
Definition of 840
Divorce case, not allowed when
granted 844
Error of law on trial, ground for . . 840
in assessment of recovery .... 840
Excessive damages, ground for . . 840
Fraud of successful party, ground
for 518
Grounds for 840
after term has expired . . . 844, 518
Infants, time to apply for 891
provision as to 891
application for by 518
Injunction by party seeking .... 520
irregularity on trial 848
Judgments, vacation of generally . 518
when not vacated 17
Justices' courts in 714
Misconduct of court, jury, party . . 840
Misfortune, cause for 517, 519
Misprision, cause for 518
Motion and grounds for 848
affidavits to support and contro-
vert 848
Newly discovered evidence .... 840
Not more than two granted .... 841
Quarterly court In 714
Smallness of damage not cause for . 841
Title to property, how affected by . 417
Verdict against evidence 840
against law 840
Next friend—
Actions that may be brought
by 85, 84
Affidavit of, for warning order . . 58
showing right to sue 87
Costs of action, liability of for,
sub. 2 87
when required to give security
for 619
Persons who may sue by .... 85, 84
who may sue as, sub. 1 87
Qualifications of, and affidavit con-
cerning, sub. 1 87
Service of notice on 627
on attorney for 682
Verification of pleadings by, sub. 8, 117
Wife, when may sue by, sub. 6 . . 84
Non coBpos meotis —
See Person of Unsound Mind.
Noa-resldeats—
Attachment against 194
Association, summons on 51
Bond for costs required of before
commencing action 616
upon intervening in action ... 29
effect. If not given 617
required of plaintiff becoming
non-resident 618
surety In becoming non-resident,
new bond may be required . 620
until given, attorney liable for
costs 621
Individual summons on 51
Infant, action by, sub. 4 35
Joint stock company, summons on . 51
Partnership, summons on 61
Warning order against 57
No property foiuid —
(See Enforcino Satisfaction of
Judgment) 439
On execution from inferior courts,
proceedings on 728
Return of, as to person arrested,
necessary to fix liability of
bail 171
Notary public —
Affidavits may be taken before,
sub. 1, 549
Depositions may be taken before . . 562
Note-
See PROinssoRT Note.
Not fonnd—
Return of, necessary to fix llablllt}'
of ball 171
Notice-
Agents, to 625
of corporation to ^528
Amendment of, before answer . . . 182
Arrest of motion to Vacate .... 177
Attachment, to discharge In vaca-
tion, sub. 1 268
to sell perishable property taken
under . . 218
of motion for transfer of, to one
court, sub. 8 210
of officer who requires Indemnify-
ing bond to plaintiff before
levying 211
to plaintiff in, that additional se-
curity Is required on bond . 286
of motion to discharge 265
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734
INDEX TO CIVIL CODE.
SSOTIOK.
fioiict— Continued.
Attorney, to 626
for corporation 628
generally 681
to take depositions 682
for non-resident ......... 680
Bail, of objection to insufficiency of, 166
Corporations, to 628
Creditors, to, in action to settle de-
cedents' estate 480, 481
in action to settle trust estates . 488
Contents of, generally 624
Defendant constructively summoned
in 680
Depositions, to take 666
what is reasonable 667
on interrogatories 671
at adjourned time or place . 668, 669
when may be served on attorney, 682
against non-resident ...... 680
against infant or person under dis-
ability 627
in action by or against husband
and wife 629
Forcible entry and detainer, to de-
fendants in 466
Husband to, for wife 629
Infants, service on 627
Injunction, to dissolve 289
of application for 276, 276
for additional security on bond . 288
Insolvency of, taking oath of . . . 168
Interrogatories, of filing . . . 142, 144
Judgment, to correct 619
of motion to set-off 877
for, on bond to suspend execution
sale 648
for, on bond to suspend distress
warrant 664
Lunatic, service on 627
Mandamus, of application for writ
of 474
Offer to compromise, acceptance of, 684
Officers who may execute .... 624
Penalty for failure 688
Non-resident to, to be served on at-
torney for 680
Persons, who may execute .... 624
Pleadings, of filing in equitable ac-
tion 106
of filing in vacation generally, 108, 109
of filing amendment 182
Prohibition, of application for writ
of 478
Receiver, of application for to take
charge of attached property, 218
Requisites of 624
Return to be indorsed on 624
Sale of, by order of court generally . 696
Service of, by whom made gen-
erally 624
SBonox.
Notice — Continued.
Court may direct mode of service . 628
mode of 626
on parties who are numerous, or
whose residence is not knovm, 626
on persons under disability . . . 627
on corporations 628
on husband and wife 629
on persons constructively sum-
moned 630
Summary proceedings in, generally, 446
Surety, against principal or co-
surety for judgment .... 444
Wife, how served on 629
Nnmber—
Defined, sub. 4 782
Nameroni ptrties—
Court may require depositions
against to be taken on inter-
rogatories 678
Notice to may be served on part of, 626
When part may sue or defend for all, 25
Affirmation may be substituted for, 680
included by word, sub." 23 . ... 782
Insolvency of, may be taken by ar-
rested debtor 168, 168
May be administered by arbitrator,
sub. 6, 461
clerk of court 671
judges, justice of the peace ... 649
notary, public examiner . • . . . 549
ministerial officers to bail or
surety 164, 688
Ol^ectiofl to decisloa^
How taken 838
When to be taken 884
Offer to cofflprooiise —
Effect of acceptance or refusal
of 634, 636
Not cause for postponement .... 686
Offer to coafest Jidgaeat—
Effect of 640
Office-
Usurpation of (See RsPKALnre or
Vacatino Chabtkbs) . • • • 480
Officer-
Bailiff may be appointed by ... 47
Deputy, may act for 678
Duty of, as to property attached
in his possession 204
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DtDEX TO OIVII, CODB.
735
BxcrrioN.
Officer — Continued.
Evidence of, how taken 644
Judgment or determination of how
pleaded 122
judgment on motion of 444
May appoint person to serve sum-
mons 47
surrender property levied on in
action by claimant • . . 80, 81
have plaintiff in writ substituted
as defendant 82
Ministerial, may act by deputy . . 678
may administer oath to bail or
surety 164, 688
Oath, may be administered to
surety to bail 164
Person may be appointed by to exe-
cute summons 47
Return of, on summons how
amended 49
Substitution of claimant for . . 81, 82
Yenue of action against ...... 68
Who may execute process ...... 667
summons , . . . . 47
Off-set—
See Set-off.
Omi prolMBdi—
See Burden of Proof.
Opiiions —
Of Court of Appeals to be in writ-
ing
Oral examinatioB —
See Examination.
Of witness defined
766
646
Oral testiaiofly^
In equitable actions, generally . . . 662
in justices' and quarterly courts, 708
Of defendant as to attached prop-
erty may be required . . 220, 267
garnishee or officer holding prop-
erty may be required .... 229
person confined in jail ..... 640
other persons when required . . 666
On motion to discharge attachment, 264
petition for new trial 844
Order iMwk—
Entry of judgments on 890
Orders—
Ck>mmon, action on 26
Defined 622
*8«OTION.
Orders — Continued,
Final, concerning appointment of
receiver 298
concerning attachments . . 266, 267
concerning mandamus and pro-
hibition 475
For provisional remedy, when in-
ferior court to dispose of . . . 721
delivery of personal property . 181
breaking building and doors to
execute 675
Of reference by clerk during vaca-
tion 481
survey, by clerk, in vacation . . 671
To prevent damage, pending mo-
tion for mandamus or pro-
hibition 476
Warning. (See Warning Obdbb) . 68
Order of attachmeat—
See Attachment • • •• 199
Order of coort—
Defined 622
Order of delivery—
(See Claim and Dblitbby) • . • 180
Order of survey —
Clerk may make in vacation • • . . 671
Order of trial-
See Trial.
Ordlaary action —
Action, when to be 6, 6
Answer in, time of filing . . . 102, 108
Dismissal of, as to defendants not
summoned, to obtain trial . . 868
Distinction between ordinary and
equitable 6
Division of land, or allotment of
dower, for, sub. 10 499
Docket of 848
how kept 849
when to be called 868, 869
Equitable defense to, must be
pleaded 17, 118
Error as to form, does not abate . . 8
how corrected 10
waiver of • 16
Exhibits in, how made part of rec-
ord 128
on which action is founded, must
be filed or accounted for • . 120
Interrogatories in (See iNTBRRoaA-
toribs) 148
Issue of law, may be heard on first
call of docket 869
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786
INDBX TO CIVIL CODE.
sxonoN.
Ordiury actlofl— Continued.
Judgment in can not be annulled or
modified in equity, except . . 17
does not bar set-off or counter-
claim 17
on failure to defend 869
Lost writing, on 7
Pleadings in. time of filing . . 102, 108
Transfer of 8, 10. 11
Trial of 858, 869
when stand for 863
Usurpation of office, to prevent . . 480
Vacate charters, to 480
Venue of. See Vbnub of Actions.
Ordiflary docket-
Arrangement of • 849
Attorneys' names to show 858
Calling of 858. 859
Entries on 848, 854
Parties, names to show 858
Other country—
Defined, sub. 21 782
Pipers-
Filing, time to be indorsed by clerk, 669
with pleadings, when necessary . 120
with pleadings, when permitted . 128
Genuineness of, when regarded as
admitted 527
Lost, action on 7
Original, to be transmitted from in-
ferior courts on appeal . . . 725
on traverse of forcible entry and
detainer . 463
transmission of to Court of Ap-
peals, sub. 2 748
Paragraplis —
Pleadings to be separate, numbered,
when, sub. 3 118
Partial defeose—
Allowed, sub. 2 118
Parties-
Action for discovery of name of . . 685
Assignee may sue 19
Claimant of property to be ... 29, 80
Creditors, by filing claims become . 482
Defined, sub. 81 782
Having common interest, how to sue
or defend 25
Interested persons to be ... 22, 28, 24
Judgment, in ordinary action
against one or more of several, 863
against one or more of several gen-
erally 869, 870
against one or more 878
New parties, court may require . . 28
Parties — Continued,
Numerous, action by or against part
for all 26
notice to part for all by order of
court 626
court may require depositions
taken on interrogatories . . . 573
Persons in interest to be joined . . 24
Real in interest, must bring action
generally 18
Substitution of 20
Testimony of, when allowed for
themselves 605, 606
when required against themselves,
sub. 10, 606
Partition-
Joinder of causes of action for,
sub. 4, 88
Jurisdiction of equity concerning,
not affected, sub. 16 499
See amendment to 499
Venue of action for 66
Partoersliip—
Summons against non-resident . • 51
Partoersliip property-
See Joint Property.
Levy of attachment on ... • 208, 209
Party-
Means who? sub. 85 782
Party ia iaterest-
Action to be in name of .
18
Panper—
Action by without securing costs . 87
Not required to pay for depositions, 583
Paymeot-
Of monev by garnishee, into court
or to sheriff 228
Penalty-
Venue of action for, sub. 1 .... 63
Officer for contempt 204, 633
Witness against 585, 586
Pendeocy off action —
See Lis Pendens.
Penitentiary-
Testimony of officers by deposition, 654
to be in person, when 556
of convicts in, not competent,
sub. 8 606
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INDBX TO CIVIL CODE.
78
Ptti%hahh property^
Sale of when attached
Ptrpetoatiflc testlmooy—
Provision as to ... .
218
610-616
Penofl—
Corporation
included
by word,
sub. 6, 782
Defined, sub. 6 782
Joinder of causes of action for in-
jury to, sub. 6 88
Venue of action for injury to . . . 74
Periefli|l lidcment—
May be rendered in action to en-
force lien 876
Not allowed against defendant con-
structively summoned .... 419
Personal property-
See Property.
Claim and delivery of — (See Claim
AND Delivery) 180
Personal represeatttive—
See Representative.
Meaning of word, sub. 17 782
Person off nnsonnd mind —
Action against, how defended gen-
erally 86
for division of land, how defended,
sub. 2, 499
for sale of land 489
for sale of land owned jointly . . 490
for sale of laud and investment of
the proceeds 491
for sale of land, special provisions
concerning 492
bond to be given by committee,
sub. 1, 498
if bond not given, sale void, sub. 8, 498
general provisions concerning,
494-498
venue of, if in asylum 69
Action of, by committee in his own
name 21
by whom to be brought generally,
sub. 1, 86
may be brought by next friend,
when, sub. 8 85
non-resident, who may bring,
sub. 4, 85
Allegations against, when to be
proved though not traversed, 126
Bond, by committee in action to sell
land 498
if not given sale void, sub. 8 . . . 498
(47)
sxcnov.
Person off nnsonnd mlod^CkmHmted,
Bond must be approved by the
judge, sub. 2 498
Certiorari^ may be granted to,
sub. 1, 748
Committee of, action by in his own
name 21
action by generally 85
action against, by next friend . . 85
liability of, for costs 87
when required to secure costs . . 619
Defense of action against, by whom
to be made 85
by guardian tid litem 88
in action to divide land of, sub. 2, 499
Depositions against, how taken . . 574
Distinction between plaintiff and
defendant as to verification,
sub. 2, 116
as to taken depositions against • 574
as to proceedings in Court of Ap-
peals 748
as to time in which to appeal . • 745
Includes what persons, sub. 40 . . 782
Judgment against, not to be rend-
ered until defense or report
filed 86
Next friend of, action by 85
Non-resident, action of, by whom
brought 85
Notice to, how served 627
Pleadings of, verification when not
necessary, sub. 2 116
by whom to be made, when re-
quired, sub. 8 117
Summons against, how served ... 58
not allowed to be served out of this
State 56
Testimony of parties agaiust,
subs. 2, 6, 606
as to entries in book, sub. 7 . . . 606
Vacation of judgment against, sub. 5, 518
Venue of action against, if in
asylum 69
Words include person destitute of
mind, sub. 40 782
Persons nnder disability-
See Infants, Married Women,
Persons op Unsound Mind,
Prisoners.
Petition-
Alternative allegations in, when al-
lowed, sub. 4 118
Amendment of, generally 184
before answer 182
notice of filing, when necessary . 182
after demurrer filed in vacation,
sub. 2, 109
after demurrer sustained .... 94
costs of 94, lis
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788
INDEX TO CIVIL CODE.
•BCTIOH.
Petition — Continued.
Amendment of, verification of . . . 189
continuance on, when allowed . . 186
to cure variance 129, 180
Answer, embracing set-oflf or coun-
ter-claim is . . . . sub. 86, 782
Caption of, requisites of 110
Causes of action which may be
stated in, sub. 2 118
must be paragraphed when,
sub. 8, 118
Claimant by, to be made party . . 29
Commencement of action, filing
and issuing summons is . . . 89
Delivery of copy of, and summons
to defendant out of State, ef-
fect 56
does not authorize personal judg-
ment 419
Divorce, for annulment of judg-
ment of 426
Discovery for, of name and resi-
dence of party 686
Embraces what? sub. 86 782
Facts constituting cause of action
must be stated in 90
Filing of, by persons intervening in
action ; . . . 29
of generally 89
Forms of, pages 696, 616.
Interrogatories may be annexed to,
when 140, 148
Judgment, for vacation or modifica-
tion of 620
Land, for division of or allotment
of dower, sub. 1 499
Ijibel in action for 128
New trial, for 844
Paragraphing of, sub. 8 118
Perpetuation of testimony, for . . 610
Prayer of 90
alone granted, if no defense made, 90
Requisites of 90
Slander in action for 128
Striking out cause of action . . 84, 86
Summons on 89
Supplemental, when allowed . . . 186
Verification of, generally 116
by whom to be made 117
may be made on or before calling
action for trial 187
amendments to 189
unnecessary in action for division
of land or allotment of dower,
sub. 14, 499
in action for divorce or alimony, 421
in action to enforce satisfaction
of Judgment 441
Warning order on 89
Writings, which may be filed with . 128
which must be filed with .... 120
genuineness of, when admitted . 627
BSOTIOK.
Physlcitfl—
Certificate of to prevent service of
summons on lunatic .... 68
Evidence of, how taken 654
Personal attendance of as witness,
when required 556
Place of sale—
Of property under decree 696
Plaintiff—
Means who? sub. 86 732
Must briefiy state his case to jury-
after they are sworn, sub. 1 . 317
Who may join as 22, 24
When word embraces defendants,
sub. 86, 782
Pleadinc aid proof—
Material variance between, effect . 129
immaterial, effect 180
Pleadiflca—
Allegations of, affirmative, only to
be answered 112
alternative allowed, but inconsist-
ent forbidden 118
what are material 127
when to be taken as true against
absent defendant 409
when to be taken as true, gen-
erally 126
Allowed by Code 89
Alternative, when allowed, sub. 4, 118
Amendment of, after demurrer sus-
tained 94
name added by 184
mistake cured by 184
defect, to correct 184
variance to cure 180, 181
generally 134
to cure error as to form of action, 8
costs of, after demurrer sustained, 94
• costs of, generally, sub. 6 . . . . 118
cause for continuance, when . . . 186
petition before answer 182
verification of 189
Attachments, affidavits of parties
constitute 268
Caption of, generally', sub. 1 . . . 110
answer, when to mention set-off
or counter-claim, sub. 4 . . . 97
reply, when to mention counter-
claim, sub. 4 97
Causes of action that may be stated
in, sub. 2 118
Claimant, petition by to be made
party 29
Costs of defective, who to pay . . . 118
Counter-claim, sub. 1 96, 111
Cross-petition, sub. 8 96, 111
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UTDBX TO CIVIL CODK.
789
BBOTIOV.
Defenses that may be stated in,
sub. 2, 118
Defined 87
Demurrers 91
Denial of knowledge, or information, 1 18
Departure in, forbidden 101
Description of land in, sub. 1 . . . 125
Dismissal of action 118, 871
Evidence not to be stated in, sub. 1, 119
Exhibits in 128
Extrinsic facts need not be stated in
action for slander or libel . . 128
Filing of, after demurrer overruled, 188
in clerk's oflBce, generally . . 108, 109
time of. See Time of Plead-
INO.
Form and sufficiency of 88
Forma of, generally, pages 596, 624.
Inconsistent statements in 118
Interrogatories annexed to . . 140, 148
Irrelevant and redundant matter
in 121
Issue^must be formed by 114
Judgment, how pleaded 122
Land in action, to recover 125
Language of, to be English .... 115
Libel in action for 123, 124
Lien to enforce 692, 694
Oral, when allowed 705
Paragraphing of, sub. 8 118
Presumptions of law need not be
stated in, sub. 1 119
Private statute, how stated in,
sub. 2, 119
Rebutter, when allowed, sub. 1 . . 89
Reformation of 114
Slander in action for 128, 124
Statute, how pleaded 119
Reply and additional pleadings,
when not allowed .... 112
Set-oflf, sub. 2 96, 111
Sham, forbidden, sub. 8 118
Striking out part of . . . . 84, 85, 118
Supplemental 185
Surrebutter, when allowed .... 89
Surrejoinder 101
Traverse, what is * 118
Variance, between proof and . 129, 180
failure of proof is not variance . . 181
Verification of 116
by whom made 117
Forms of, page 627.
Written to be 115
Writings, required to be filed with, 120
allowed to be filed with 128
l^leas to appeals 758
Horal—
Defined, sub. 4 782
PoUce courts-
See Courts.
Jurisdiction of, page 551.
PoUiflf of lory—
On return of verdict . .
824
Possesslofl of persooal property^
See Property.
Postace—
Prepayment of, to examining officer, 588
to clerk, before returning deposi-
tions to officer 588
Postmaster-
Evidence of to be taken by deposi-
tion .... ... . . 554
Personal presence of, as witness,
how secured . 556
Postpoaemeot of trial-
Affidavit for, on account of absence
of evidence 815
Amendment of pleadings, when
cause for 186
to cure immaterial variance, not
cause for 180
As to parties not summoned in ac-
tions on contract 868
For failure to answer interrogatories
in equitable action 142
inordinary action 145
Offer to compromise, not cause for . 686
Of motion to dissolve or modify in-
junction 202
trial of attachment 259
Power-
Majority of persons authorized,
may exercise 679
Prayer for relief—
Petition in 90
Pleadings in 97
Precedence of attachments-
According to time of delivery to
sheriff 202
On fund in court 207
Reference to commissioner to ascer-
tain 285
Prejodice to future action-
Dismissal for want of proper parties,
when dismissal may be without .
28
871
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740
INDBX TO CIVIL CODE.
sBonov.
Prelimioary provisions^
OfCk)de 1,2, 8
Premature jiMlciiieat—
Correction of, may be by motion
after notice 51^
and then by appeal 616
Injunction against 624
Rendering is clerical misprision,
subs. 1, 2, 617
Presmnptlois of law-
Statement of in pleadings forbid-
den, sub. 1 119
Priest—
Not to testify concerning confes-
sion, sub. 6 606
Prioci|»al—
See Agent, Attorney, Surety.
PrifltlBf—
Included by word '* writing," sub. 6, 782
Priority of attaciimeats—
See Precedence op Attach-
ments.
Prisoners—
Actions against, defense of, sub. 2 . 86
Actions in favor of, sub. 2 86
by next friend, sub. 1 87
liabilitv of next friend for costs,
sub. 2, 87
may be required to secure costs . 619
Allegations against must be proved,
subs. 1,2, 126
Appeal by, one year after disability
removed 746
Certiorari may be granted to, sub. 1, 748
Confined in penitentiary, are persons
under disability, sub. 81 . . 782
Defensive pleadings for, need not be
verified 116
Depositions against must be taken
on interrogatories 674
Evidence of how taken .... 640, 641
for or against, sub. 6 606
Incompetent to testify, sub. 8 . . . 606
Judgment against, copy of, can not
be served on 416
Notice to, service of 627
when may be served on attorney . 682
Summons on, how served in this
State 64
actual, can not be made out of
this State 66
constructive 57
Testimony of party against, not
competent, sub. 8 606
Venue of action against 69
Private corporatiou—
See Corporations.
Private statote—
Manner of pleading, sub. 2 . ... 1 19
Must be pleaded, sub. 1 119
Privies-
Appeals by and against ...... 784
Privilesed coamaalcatlMU—
What are, subs. 1, 6 606
ProlMrte of wUi—
Provisions of Ky. Stat, to, as adopt-
ed 470
Venue of actions or proceedings
concerning 64
Proceodiflcs—
Amendments of generally 184
In court below upon return of case, 761
Special, defined 8
embraced by word "action,"
sub. 84, 782
To reverse, vacate or modify judg-
ments 618-^24
Process-
See Summons, Subpcbna.
Court may appoint person to exe-
cute 668, 701
Defined, sub. 26 782
Direction of, generally 667
of summons 40
from inferior courts 701
Doors may be broken to execute . - 676
Issuing of, before petition filed, for-
bidden 668
is commencement of action ... 39
on holiday or Sunday .... 664, 666
OflScer or person, to execute sum-
mons 47
to execute generally 667
Person may be appointed to execute,
668, 701
«* Prevented by force" not sufficient
return of 677
Return on, amendment of 49
Service of, at muster, election, or
while attending as witness . 666
when witness can not be served
with summons 642
defendant can not be summoned,
when ®1
breaking doors and buildings to
execute 676, 676
Time of reception to be indorsed on
by officer 674
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INDBX TO CIVIL CODB.
741
Procheii a«i—
See Nbxt Fbiekd.
Pracoflfeiso—
See JUDOMBNT.
Prdlert—
When to be made 120
Pr^ibltioii—
Defined 479
Promise to pty value or danuicet—
Allegation of, must be verified,
when, sub. 5 116
need not be proved unless trav-
ersed, sub. 4 126
Prooilisory flote —
Action against parties to, may be
joint or several 26
by assignee of, is without preju-
dice to defense 18
Lost, mutilated or destroyed, action
on 7
bond to be tendered defendant be-
fore, when 7
Transferred, pending action, assign-
ee may be made party . . • 20
Proof-
See Burden of Proof, Eyidbncb.
Amendment to conform to . • 129, 184
Effect of variance between proof
and pleadings 129, 180
Failure of is not variance 181
Order of introduction of, sub. 8 . . 817
Party who begins must ordinarily
finish, before 592
court to control mode of interro-
gation 698
Property-
Action for, joinder of causes of . . 88
personal, claimant may intervene, 29
personal, joinder of causes in . . 88
personal, action of tenant against
landlord for taking 88
Answer must describe part of land
claimed 125
Attachment of. See Attachment.
Claimant of, may intervene in ac-
tion concerning 29
Conveyance of real by commis-
sioner 894-400
Definition of real, sub. 9 782
of persona], sub. 10 782
of generally, sub. 11 782
Property— OmfintiML
Deliver}' of personal. (See CLiHC asd
Delivery) 180
Division of real 499
Dower, allotment of 499
Execution from inferior court oan
not be levied on real .... 722
Fraudulent sale of, authorizes at-
tachment 194
Immediate delivery of 180
Indivisible, proceedings to seli . 694, 695
purchaser, when entitled to . . . 698
Joint owners of. See Joint Owners.
Land, division of 499
sale of, owned by infants and per-
sons under disability .... 489
under judgment from inferior
court 728
petition must describe . . . . , 126
Partition of real. (See Partition), 499
Personal, definition of, sub. 10 . . . 782
Real, definition of, sub. 9 782
Real, belonging to decedent may be
sold to pay debts 429
conveyance of by commissioner
generally 894
Sale of personal. See Sales by
Order of Court.
of real. See Sales by Order of
Court.
View of real by jury 818
Proseciitioo, crimioal or penal —
Admission subjecting to, need not
be verified, sub. 7 116
Provisioiial remedy-
See Arrest and Bail, Attach-
ment, Claim and Deliybry,
Injunction, Receiver, De-
posit IN Court.
Provisions of (
Amendments allowed, to make
pleadings conform to ... . 184
Applicable to actions now pending, 887
General 663 to 699
Miscellaneous 678 to 699
Rules for construction of 732
PttbUcntion—
Of notice to creditors of action, to
settle decedents* estate . . . 480
to settle trust estate 488
PobUc corporation-
See Corporation.
Digitized by
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742
INDEX TO CIVIL CODE.
PobHc debtors-
Provisions of Kentucky Statutes
concerning, adopted .... 460
PnbHc officers^
See Officers.
Poblic works—
Venue of action against contractor, 77
Pais daricfl contifloaico—
Supplemental pleadings allowed to
slate new matter 186
Pnrcbase mooey—
See Bonds.
Porcbaser of property —
At decretal sale, shall give bond . . 697
bonds bear interest 697
enforcement of 697
lien retained on property .... 699
entitled to conveyance when sale
confirmed 394
entitled to possession of personal
property, when .... . 698
Entitled to conveyance when sale
confirmed 894
to possession of personal property,
when 698
Fraudulent, attachment in action
against 260
Under execution, must look to in-
demnifying bond, when . . 648
attachment, payment of money by
enforced by rule 282
Pnrsttlt—
Of property removed to avoid at-
tachment 218-256
Qaaiifficatioiis—
Bail, of 164
Surety, of 684
may be sworn to ascertain suffi-
ciency 688
Quarterly courts
Appeal from, how taken 724
Appeal to, page 549.
Arrest and bail, trial of 721
Attachments, trial of 721
Clerk of 703
Code regulates proceedings In . . . 700
Counter-claim, trial of 720
Docket, one to be kept 704
Equitable actions in 708
evidence in by deposition .... 708
Injunction in, trial of ...... . 721
Bsonox.
Qoarterly cmirt—OontinuetL
Interrogatories in 716
judgment against party failing to
answer 717
Jurisdiction of, original, page 640.
appellate, page 649.
Jury trial, when may be had . • . 718
Land can not be sold under exeoa-
tion from 722
how sold to satisfy judgment . . 728
New trial in 714
Pleadings in when may be oral • . 706
statement to be filed ...... 706
Process from, to whom directed . . 701
special bailiff may execute ... 701
who may execute 701
Records to be kept by judge .... 716
lost or destroyed, how supplied . 719
Set-off, trial of 720
Statement of claim to be filed • • . 706
Subpoena from, how executed ... 709
Summons from 701
when returnable 706
Time of trial of cases 706, 707
Trial, when case stands for ... . 706
proceedings jn ''06
Qaestioas—
Lead ing, what are and when allowed, 596
Qttowarraato —
Ordinary^ action in lieu of 480
Railroad-
See Carrier, Corporation.
Summons, service of in action
against 61
Venue of action against 78
Rate—
Of damages recoverable 846
Real party In loterest—
Action to be prosecuted in name of, 18
1^1 property-
See Property.
View of by Jury 818
RoU representatiyes—
See Rbpresentatiybs.
Rebutter—
See PLBADmee.
Allowed if necessary to form issae, 89
Character of 100
Not allowed except in response to
affirmative allegations ... 112
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Google
INDEX TO CIVIL CODE.
743
8B0TI0H.
Action by 21
Appeal from order concerning . . • 298
can not be superseded 298
Appointment of, when property is
about to be removed .... 298
when property insufficient to pay
debts 299
Appointment of to take charge of
attached property 218
order concerning is final 298
Attached property of, may be ap-
pointed 218
allowed expenses of keeping ... 219
Attorneys and parties not to be ap-
pointed 800
Bond and oath required of • • • • 801
Mortgaged property to take charge
of 299
Powers of, generally 802
Records-
See Transcripts.
Book of, to be kept by justices . . . 716
Certiorari concerning, when to be
granted, sub. 1 748
Copies of, for Court of Appeals, how
made 787
may be filed by appellee .... 741
when to be filed 788, 740
what to be filed with ....... 739
Exhibits constitute part of, if shown
to have been used 128
Lost, destroyed or mutilated, action
on 7
motion to supply in inferior courts, 719
Original papers, transmission of to
Court of Appeals, sub. 2 . . 748
transmission of by justices, on ap-
peal 726
Rednndairt matter-
To be stricken from pleading .
121
Refereoce—
Arbitrators, to. (See Arbitration
AND Awards) 461
Commissioner, to. See Commis-
sioner.
Refondiof bood—
Forma of, page 626.
Required of distributees and lega-
tees in certain cases 486
Refasal of injoBctioo—
Statement as to in application for in-
junction 278
Reflster of toad office—
Evidence of, to be taken by deposi-
tion 664
personal attendance of as witness
when required 666
Rehearioc—
Court of Appeals may make rules
concerning, sub. 1 760
Rtlisttteoieit—
Action against absent defendant, of, 414
Attachment, of 267
by Court of Appeals .... 269, 270
Injunction of, by Court of Ap-
peals 296, 297
Rejoinder-
See Pleadings.
Allowed to form material issue . • 89
but only in response to affirmative
allegation 112
Avoidance, plea^of in ...... . 99
Caption of, what to state 110
Contents of 99
Departure in, forbidden ...... 101
Estoppel, plea of in 99
Release—
Of bail, not affected by judgment
of insufficiency 167
Relief-
Prayer for must be specific, or gen-
eral 90
general not granted, unless issue
made 90
in other pleadings governed by
rule that applies to petition . 97
Remaioder—
Sold on petition of owner of par-
ticular estate 491, 492
Trust estate in, sale of 498
Riemoval—
Action for division of land from
county to circuit court,
sub. 11, 499
Attachments pending in different
courts to one court 210
Defendant in transitory action from
county, effect of 82
Property of, or intent to remove,
when ground for attachment, 194
sued for, ground for general at-
tachment 194
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744
INDBX TO CIVIL CODB.
ssonox.
RienoYil — Continued,
Pursuit of property after, to an-
other county to avoid attach-
ment 218
of property sued for after removal
to another county 256
Receiver may be appointed to pre-
vent 298, 299
RMt—
Action for, is not barred by pro-
ceedings in forcible entry or
detainer 468
Attachment for 195
Fonm in, pages 685, 686.
Distress warrant for. See Distbbss.
F&rma in, pages 642, 648.
Repeallflf or vacatiof charters— Usarpa-
tiofl of offke^
Action for, to be ordinary 480
pleadings in need not be verified,
sub. 6, 116
Action to repeal or vacate charter . 481
who to prosecute 481
to repeal or vacate charters gen-
erally 482
to prevent usurpation of office . . 483
what officers to prosecute action
for usurpation ..... 484, 485
Exercising office, after act of for-
feiture, deemed usurpation . 486
Orders and judgment in action
against usurper 487
Usurper liable for fees and emolu-
ments received 488
Replevio—
Action of. (See Claim and De-
LIVBBY) 180
Replevy of execation—
Not allowed, on bond in attachment
case 282
on sale bond, sub. 8 697
Reply—
See Pleadings.
Allowed in pleading ....•••• 89
Avoidance, plea of in 98
Caption of, generally, sub. 1 • . . 110
when counter-claim or set-off
pleaded, sub. 4 ...... . 97
Counter-claim in ... 98
Cross-petition in 98
Departure in, forbidden 101
Estoppel, plea of in 98
Filing of, in vacation • . . . .108, 109
inordinary action ' . . 108
in equitable action 105, 106
Forms of, page 622.
•■cnoir.
Reply— Continued.
May contain, traverse 98
matter in avoidance or estoppel . 98
counter-claim against a set-off • • 98
cross-petition . . . • 98
Statements it may contain .... 118
Unnecessary, when . • ...... 112
Report-
Attorney for absent defendant, of,
subs. 5, 7, 59
Guardian for defendant under dis-
ability 86
Reporter of Court of Appeals-
Duties of 766
Represcstatlves—
Action against, generally on con-
tract 26, 27
by generally 21
by personal to settle estate . . . 428
Creditors, when barred of action
against personal 488
Controversies may be submitted to
arbitration by personal, sub. 4, 451
Definition of personal, sub. 17 . . . 782
of generally, sub. 19 782
of real, sub. 18 782
Liability of real, to direct action
by creditor 484
Must be party to action to settle de-
cedent's estate 428
Personal, definition of, sub. 17 . . . 732
Proof of claims presented to .... 487
Revivor of actions, by and against.
(See Revtvor op Actions) . . 500
of judgments, by and against.
(See Revtvor op Judgments), 401
Settlement of account in county
court 471
in circuit court, may be recorded. 4V2
Repatatlofl of witness —
Evidence of good character when
allowed 599
How attacked by party introducing, 596
by adverse party 597, 598
Rescue of arrested debtor—
Mode of fixing and enforcing liabil-
ity of officer for 175
Officer liable for, though occurring
without his fault 174
Resideflce—
Action for discovery of names or
residence 685
Change of, by defendant, after ac-
tion brought 82
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INDEX TO CIVIL CODE.
745
ssonoN.
itesldeice— Ocmttnwerf.
Meaning of word as applied to oor-
porations, sub. 8'2 '82
Of parties to divorce suit, how
proved ....»••••••
422
Itesidciitof Keotacky—
Bail of arrested debtor must be . . 164
Next friend must be, sub. 1 . . . . 37
Sureties in bonds required by Code
must be ®^
I^oratioii of property-
Absent defendant, bond for, to . . 410
Action for divorce, order for, in . . 426
Defendant to, upon discliargeof at-
tacliment, sub. 1 ...... 228
when taken under order of de-
livery *^
Restraioiog order—
(See Injunction) 271
Retrial—
(See New Trial) 840
Defendant constructively summoned
entitled to 414
Infant to within twelve months
after arriving at age .... 891
rrime of upon discharge of jury be-
fore verdict 828
Retani—
Amendment of ^
Attached property to defendant . . 228
Deposition to examining officer by
clerk . . . • • • ^88
••* Not found" necessary to fix lia-
bility of bail I'l
-••No property found" authorizes
action to enforce judgment . 489
:Notices,of ^ l^
Property', of judgment for . • • • • ^^
to parties in divorce cases, order
for *26
Summons of, how made and cor-
rected *;
authorizing attachment . . . . • Ij^
authorizing warning order, sub. 4, 68
Time of, by officer to be noted by
clerk ^^
Reyersal—
See Appeals.
Error must be substantial 184
Proceedings on in court below,
sub. 2, 761
Bsonoir
Reyertioii^
May be sold at instance of owner of
particular estate 491
Revivor—
Of actions —
Against real representatives . . 605, 606 '
personal and real representatives . 607
Against representative or successor . 608
Not revived, defendant may have
action stricken from docket . 611
Order of, in what cases necessary . 600
made on motion of either party . 601
how made ^^
made bv consent, action stands re-
vived forthwith 602
made without consent, shall be
served as summons 502
effect of notice of ^8
made on warning order 504
when made in name of representa-
tives ^^
Time in which order of may be
made, effect if not made . . 610
Trial shall not be postponed by rea-
son of, after action stands re-
vived 612
Of appeals 767
Of judgments —
Death of defendant does not dis-
charge levy, sub. 2 407
does not prevent conveyance of
property ^^
does not prevent execution
against survivors 406
Death of plaintiff does not prevent
issuing of execution 402
indorsement to be made by clerk, 404
who to be treated as plaintiff . . 408
quashal of execution because in-
dorsement not proper .... 406
OeneraUy —
Executions of • • ^
Limitation of «»» 609
Non-resident, against • 504
Notice of 602, 508
Petition for 601
Right of property-
See Claimant op Property.
Trial of by ju»y abolished 669
Rules-
Common law not applicable to Code, 788
Court of Appeals, to be fixed by it . 760
rules of, page 598.
Pleading. See Pleading.
Terms used in Code, construction of, 782
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746
BSrBBX TO CIVIL CODE.
ssonov.
Sales by order off coirt—
OeneraUy —
Advertisement of must state what . 696
Bonds of purchasers under .... 697
interest on 697
Dower, provision as to 496
Indivisible property 694, 696
Lien to satisfy 692, 694
Place of sale 696
Terms of, generally 696
Time of sale 696
Of real property for debt —
Attachment under, sub. 2 229
Court may order division before
sale, sub. 1 694
Decedents* estates, in settlement of 429
Lien for purchase money to be re-
tained 699
Lien debts, all not due, court will
not order sale, when, sub. 8, 694
Notice of sale and terms 696
Purchaser at such sale must exe-
cute bond . 697
Sale of entire property, if not divisi-
ble, sub. 2 694
to satisfy lien debt of defendant . 692
Of personal property —
Attached before judgment .... 218
Surplus to be paid to defendant, 231, 696
if indemnifying bond given, to be
paid into court ..... 644, 652
Suspension of, b^' claimant . . 646, 662
When purchaser, at is entitled to
possession of property .... 698
Of real property of persons under
disability —
Bond to be executed by plaintiflT,
sub. 1, 498
if not executed, sale void, sub. 8, 493
Compensation for dower 496
Commissioner to execute judgment
of sale 494
Death of owner before receiving
proceeds, sub. 6 494
General provisions concerning such
sales 494-498
Infant married woman, consent on
privy examination 493
Interested persons must be parties,
sub. 7, 494
Joint estate, sale of interest in . . . 490
Lunatics of . . • 489
May be ordered for payment of
debts 489
for support of infant or person of
unsound mind 489
for reinvestment 489
Sales by order of cmui— Continued.
Not to be made if forbidden by
deed or will 492
made until title papers are
filed 492
made unless wife and children
are defendants 492
made unless beneficial to par-
ties 492
made until bond given 49&
Proceeds of, how invested or pre-
served 494
Privy examination of infant mar-
ried women .49ft
Purchase money lien 497
payment of 498, 497
Trustees must give consent, when . 494
Satisffactioo off iadcoeflts—
Enforcing of — (See Enfobcing Sat-
isfaction of) 489
Entry of, in judgment book • ... 893
Schednle—
Appeals. See Appeals.
Of property by arrested debtor . . 168
Scire ffacias—
Writ of, abolis"hed . 179
Secretary off state-
Evidence of, must be taken by dep-
osition 664
Personal presence of as witness, how
secured 666
Sectioa—
Defined, sub. 1
. 782
SecBrity—
Additional may be required, of
plaintiff in attachment . . . 286
of plaintiff in injunction .... 28&
for costs 619
Separate-seoerai verdict 326, 827
Separation of witnesses —
Court may order,on motion of either
party 601
Rule does not apply to officers of
court 601
Service off jodsmeat—
On absent defendant not under dis-
ability 416
how made 416
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INDEX TO CIVIL CODB.
747
Service of process-
See Process.
Set-of^
Absent defendant against 418
Allowed in answer only .... 96, 111
Answer may contain ....... 95
Assignee against 19
Assignment of note is without prej-
udice to 19
Caption of answer must mention,
sub. 4, 97
Defined, sub. 2 96
Demand for is action, sub. 84 . . . 782
Disclosed, must be allowed absent
defendant 418
Failure to plead does not waive . . 17
Inferior courts' proceedings on . . 720
Judgments on 887
for money may be set-oflf .... 377
against which set-off may be used,
may be enjoined 878
Need not be set iip in answer ... 17
Pleading that may be Ill
Proceedings on against new parties,
sub. 8, 97
Provisions concerning relief appli-
cable to petitions, Apply to . 97
Summons not required 97
Trial of 97, 872
Writing, on which founded must
be filed, or accounted for . . 120
Settlements off estates-
Provisions of Ky. Stat, concerning
adopted • 471, 472
may be recorded, amendment to, 472
Of decedents —
Action for allowed, sub. 1 428
all persons interested must be
made parties to, sub. 2 . . . 428
Claims against, to be proved .... 487
Commissioner must be appointed in
by court or clerk .... 480, 481
Creditors must be notified of . . . 430
appearing, become parties to . . 482
not appearing, effect 488
not appearing, effect ...... 484
Distributee liable to creditors . . . 484
Injunction may be granted in . . . 486
Legatee liable to creditors 484
Recording of 472
Reference to commissioner .... 480
notice to creditors 480
vacation in 481
clerk may make 481
Refunding bond to be given. ... 436
Venue of 66
Oftrugt estatcB —
Provisions applicable to decedents'
estates apply to 488
Shakers—
How summons may be served on . . 65
Shan pleadiflfs—
Forbidden, sub. 8 118
Sheriff-
Action against for personal property
levied on 81, 82
plaintiff in process may be sub-
stituted as defendant for . . 82
Affidavit as to qualification of surety
taken by 688
as to qualification of bail may be
taken by 164
Arrest of defendant by. (See Ar-
rest AND Bail) 162
. Attachment, how executed on per-
sonal property ....... 208
how executed by upon real prop-
erty 208
personal property to be first taken, 206
how executed by upon fund in
court 207
expense of keeping property taken
under allowed to 219
before levy of, may require bond
of indemnity 211
Breaking of building by, to execute
order of arrest 676
to execute order of attachment . 676
Clerk's office, to visit daily .... 46
Deputy may act for 678
Distress warrant. See Distress
Warrant.
Execution. See Execution.
Judgment against, on motion for
money collected 444
Jury may be placed in charge
of 818, 819
Levy of execution on joint property, 660
Liable for insufficient surety . . . 683
May require plaintiff in execution to
defend action 81
Meaning of word, sub. 16 732
Notices, service of ........ . 624
Officers who are included by the
word, sub. 16 782
Order of delivery to be executed by, 186
Process, direction of, to, generally . 667
from inferior courts 701
Punishment of, for not serving
notice *. 688
Return of summons by 49
correction of by 49
of notice 624
Return of bonds of indemnity by . 641
of bond to inferior court 661
of bond of claimant 647
Special bailiff appointed by ... . 47
Surrender by, of property of tenant
levied on 88
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748
IKDBX TO CIVIL CODE.
Sheriff— Cbn^tnM^.
Trial of right of property by sheriff
and jury abolished 659
Writs of forcible entry and detainer,
duties of concerning . . 464, 456
Sickness— -
Of juror, cause for discharging
jury
822
Sifutare—
Includes mark, sub. 7 732
Of party to exhibit deemed ad-
mitted, unless 527
Sified—
Pleadings to be 115
Similiter^
In pleadings, not allowed 112
Siofolar—
Defined, sub. 4 782
Sinkiof food cofflmlisiooen —
Venue of action against 68
Slander-
Allegations of, petition for .... 128
Defense that may be made .... 124
Smallness of damages in, not ground
for new trial 841
Venue of action for 74
Smallness of damafet-—
Not ground for new trial in action
for tort 841
Soldiers-
Evidence of to be taken by deposi-
tion • 554
Personal attendance of as witness,
how secured 556
Special bailiff-
Process executed by 667
from inferior courts 701
Summons executed by . • . . • • 47
Special danaf es—
Given by statutes, how judgment ren-
dered for 889
Special demurrer —
(See Demurrek.)
92
saonov.
Special proceedinst—
Defined 3
Provisions concerning actions apply
to, sub. 84 782
Special verdict-
See Verdict.
Specific attachment—
(See Attachment.) 249
Specific personal property—
(See Claim and Det^iybrt) ... 180
Specific relief—
See Relief.
State-
See Commonwealth.
Statement—
Of case for defendant 817
for defendant 317
To be filed by appellant with trans-
script 789
Statute—
See Kentucky Statutes.
Judgment for damages given by . . 889
Private, how pleaded, sub. 2 . ... 119
Steamboats-
Expenses of officers for keeping
limited 219
Snbpcnia—
Acknowledgment of service . • • . 588
Clerk to issue 529
Commissioner to issue 580
Court may appoint person to execute^ 668
Defined 528
Disobedience of, how punished,
586-689
Duces tecum against witness .... 528
against clerk of inferior court,
sub. 2, 748
Forma of^ page 648.
Holiday, issual and execution on,
664, 665
Issuing of, by clerk 529
by officer authorized to take dep-
ositions 681, 578
in inferior courts 702, 708
Officer who may execute . . , 688. 667
Service of, how made 682
by whom made 688
from inferior courts 709
Digitized by
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INDEX TO CIVIL CODE.
749
SXOTXOK.
Sttbpsiui — ChntinneeL
Sunday, issual and execution on,
664, 666
Sabmission —
Of subject of controversy to court . 687
to arbitration ^J
Party may dismiss action before . . 871
may strike out cause of action be-
fore ^
SobKriptlon—
Word includes mark, sub. 7 .
782
Siibttltiition—
Claimant for defendant 80
Pending action 20
Plaintiff in execution or distress for
officer sued 82
Snccesslye actioiw—
May be maintained on same con-
tract 686
Saccessor —
Definition of word, sub. 20 .... 782
Entitled to execution on judgment,
sub. 1, 402
Revivor of actions and judgments,
for and against. See Revivor.
What the word refers to, sub. 87 . . 782
Siifficieacy of pleadings-
Rules to determine, are those de-
scribed by Code 88
Sngsestioii —
That debt has become due, peiv-
dente Hie, effect of 185
Sammary proceediogs—
Judgments obtained on motion . . 444
Motion for judgment allowed by
sureties, clients, clerks and
officers ^^
deemed abandoned when .... 447
made on any day of the term . . 448
made on ten days' notice .... 445
made according to notice .... 447
Notice, what it must state ... 446
Pleadings on, may be oral or writ-
ten ^9
Trial of, must be according to law
and equity 449
Acknowledgment of service .... 60
proof of • • ^
Actual service *'» ^*-
eaomoN.
Sommons — Conttnued,
Appeal on, from inferior ooorts . . 724
Builder, service on 51
Carrier, service on 51
City, service on • • 51
Constructive service P7, 58
actual service after ....... 61
takes effect, when 60
personal judgment forbidden on . 419
Copy for each defendant 42
Corporations and counties, service
on 61
County service on • 51
Court may appoint person to serve . 668
Delivery of, to officer 45
Direction of, generally 667
from inferior courts 701
Forma of, page 624.
Form and requisites of 40
Holiday issual and service on . 664, 665
Infants under fourteen years, serv-
ice of, on 52
Issuingof 89
Joint stock company, service on . . 51
to any county 41
copy lor each defendant 42
Manner of serving 48
Non-resident, service on . . . .61, 56
Officers authorized to execute, 47, 667, 701
Partnership service on 51
Person may be appointed by officer
to execute, sub. 2 47
Prisoners, service of , on 54
Return, day of 44
Return of, generally 49
amendment of 49
** prevented by force," not suffi-
cient 677
from inferior courts, where to be
made 710
to be entered on docket by clerk . 670
Service of, actual 48
acknowledgment of 50
after constructive may be made . 61
manner of 48
on corporations and counties . . 51
on community of Shakers .... 55
on persons of unsound mind ... 58
on infants under fourteen years
of age 52
out of the State 56, 416
out of the State does not author-
ize personal judgment . . . 419
from inferior courts 701
Shakers, service on . . 55
Sheriff to attend clerk's office to re-
ceive daily, except Sunday . . 46
to indorse time of reception of . . 674
Sunday issual and service on . 664, 666
Time fixed in for return 48
Town, service on 61
Transitory action on 79, 80
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760
IND8X TO OIVIL OODB.
SKonov.
Sttoday—
Issuing and wrvioe of process
on 664, 666
Mdeas—
Bond for 748
before whom to be executed ... 749
damages on 764
Defined 762
Forms concerning^ pages 660, 661.
Issuing of, sub. 2 749
Motion to discharge 760
Not allowed on appeal from order
concerning receiver 298
Of part of Judgment 761
Snppleneotal pleadings—
Alleging facts, occurring since
former pleading 136
Sureties'-
Action of, against principal or co-
surety after debt matures . . 661
provisional remedies in 662
against principal or co-surety be-
fore debt matures 287
provisional remedies in 288
Motions by or against 444
against principal ... ^ ... . 444
Notice of motion, how given, and
requisites of 446, 446
proceedings on 449
Proceedings against after bank-
ruptcy of principal 698
Qualifications of 684
affidavit concerning 688
Sflffeoi—
How evidence of must be taken . . 664
Personal attendance of as witness,
how secured 666
Sarplns —
Of attached property to be returned
to defendant 281
Of proceeds of sale under execution
or distress warrant 644
Sarprise —
Grounds for new trial, sub. 8 . . . 840
Snrrebntter —
Allowed if necessary to form issue • 89
Departure in, forbidden 101
What it may contair 100
Snrrejoioder—
Allowed if necessary to form issue . 89
Departure in, forbidden 101
What it may contain 100
Sarreader—
By bail, of debtor to oourt or
officer 169, 170
Swrey—
Order of may be made by clerk in
vacation 671
Service of process on person attend-
ing . . 666
Sanivor—
Execution, may issue for 402
may issue against 406
Sanival of caose of actioa—
(See Rbvivob) 600
Saipeulofl—
Of sales under ex3Cution and dis-
tress warrants. See Bonds.
Taxes—
Affidavit for order of delivery to
state property was not taken
for 181
Garnishment of officer holding prop-
erty taken for 208
On appeals 746
Teaaat—
Action by, for property distrained, 38
Bond of, to discharge levy of dis-
tress warrant 668
to discharge levy in part .... 658
motion on for judgment 664
trial of motion 656
judgment on motion 657
For life, action for sale of remainder
or reversion 491
In common, embraced by word joint
tenant, sub. 28 782
Teader—
(SeeOFFBBTOCOMFROHIB^) . . . 684
Tease—
Defined, sub. 2 782
Term of coart—
Power of judge over judgment, after
expiration of 618
Terms —
On which pleadings may be amended, 184
Digitized by
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INDEX TO CIVIL CODE.
751
Tenns of lalc—
Property under decree
Testimony—
See EviDBNCE,DBP08mON8,ORAL
Testimony.
Thiogs ia action —
Action by assignee of
for discovery of .
19
489
681
TlMC—
Mode of counting between acts
Time of pieadiog—
In circuit court —
Oourt may extend time of 107
Defense in equitable action, time of
filing
if summons not executed in time,
reply and subsequent pleadings,
Defense in ordinary action, time of
filing
time of filing other pleadings . .
Non-resident may file defense before
judgment 408
may filed efense within five years, 414
time reduced to one year, how . . 415
Injustices' and quarterly courts, 706, 707
102
104
106
102
108
Time of sale-
Property under decree
Time of trial-
Absent defendant.
696
102
768
726
867
Title-
Defined, sub. 1
action against,
60,
Appeals, in Court of Appeals . . .
from justices' and inferior courts.
Equitable actions, of, during motion
hour
on third day of term 860
after expiration of motion hour . 868
generally 864 to 867
if interrogatories annexed to a
pleading ^^
if no issue of fact made by answer, 866
if summons served on only part of
the defendants 867
Justices' courts, in 706, 707
Motions 8^6
Ordinary actions, of, after expira-
tion of motion hour 368
on each day of term 859
generally ^^
in tort, where summons not served
on all defendants 868
Police courts, in 706
Quarterly courts, in 706
8X0TI0K.
. . 732
Towfl —
Summons against
61
Transactloo—
Successive actions may be main-
tained upon 686
Transfer-
Actions, from one docket to an-
other . . 8
from one court to another .... 18
Attachments pending in different
courts : 210
Bond, when defendant required to
execute before 14
Court may order 10
Equitable action to ordinary docket, 10
Ordinary action to equity docket, 10, 11
Plaintiff may file affidavit, and re-
quire defendant to execute
bond 14
Waiver of right to transfer action . 16
Transcript of records-
See Appeals to Court op Ap-
peals.
Inferior courts from 724
Transitory actions-
Venue of
in
and service of process
78-^2
Traverse-
Answer may contain ^5
Defendant constructively sum-
moned, when necessary, by . 409
Defined •••... 118
Knowledge or i nf ormation, denial of, 118
Reply, rejoinder and subsequent
pleadings may coQtain . . 98-100
Treasurer ol state-
Evidence of, to be taken by deposi-
tion 564
personal attendance of, as witness,
how secured 666
Trespass-
Action for, not barred by proceed-
ings in forcible entry ....
Attachment in action for, not
granted against certain per-
sons . . • • •
not granted against defendant, on
ground of insolvency ....
468
194
194
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752
INDBX TO CIVIL CODE.
ssonov.
Trial—
GhneraUy —
Argument 817
Attachments of 264
Burden of proof 317, 52tf
Claimant's bond, of motion on . . 648
Commencement of 690
Continuance 816
Counter-claim of 97, 872
Court by 812, 818, 846
Damages recoverable 846
Defined 811
Equity actions of .... 860, 861, 864
plaintitf may demand trial, when, 866
trial as to part of defendants • . . 867
Instructions 817
Issues, how tried 812
Jury trial 881, 860
waiver of . • 881
view of place or property by . . 818
duty of after submission .... 819
court to admonish 820
information as to evidence after
submission 821
as to law 821
Law and facts separately stated by
court 882
New trial, grounds for . . 840, 518
not in divorce case 344
Ordinarv actions in . . . 858, 869, 368
Poll of jury 824
Set-off, of 97, 872
Tenants' bond to discharge dis-
tress 655, 656
Verdict 825 to 827
By the court —
Actions for division of land, or al-
lotment of dower, sub. 10 . . 499
Attachment shall be tried by . . . 264
Continuance of 816
Issues of law must be tried by,
sub. 1, 812
of fact which must be tried
by 812-2, 818
of fact in action for tort, may be
tried by, sub 1 881
Forcible entry and detainer. (See
Amendment To) 464
Law and facts to be separately
stated 882
Law, to be tried by, sub. 1 . . . . 812
Manner of, in action for tort, sub. 2, 831
Motions 449
Order in which action shall be
tried 814
Postponement of 815
Separation of law and facts .... 882
Time of trial. See Time of Tbial.
By jury-
Admonition to Jury, permitted to
separate . 820
Commencement of 590
sscnoK.
XfUS—ContinMd.
By jury—
Depositions, exceptions to, to be
taken before 687
Discharge of jury, causes for . . . 822
Formation of jury 81S
Forcible entry and detainer in . . . 464
Information may be asked for by
jury 821
Issues of fact, when to be by,
812,818, 881
when to be by in action for tort . 881
Order of 817
Right to, cause for transfer of ac-
tion 10
Value in controversy which entitles
party to 718
Verdict in, how reached 811^
how rendered 824, 826
if not rendered, case to be re-
tried 828
View of place or property by jury . 818
Waiver of right to jury trial ... 812
in action for tort 881
Tnwtees—
Action by, generally 21
for settlement of estates 488
Consent of to sale of property of
person under disability . . . 494
May submit to arbitration 461
Sale of real property by 498
Settlement of accounts of, in coun-
ty court 472
may be recorded, amendment to . 472
Trust estitet^
Action for settlement of 428
provisions applicable to 488
Demands against to be verified . . . 487
Sale of 498
remainder in 498
Tnrth—
Mitigating circumstances, and, may
be pleaded 124
Turnpike-
Venue of action against contractor
to build 77
Umpire —
(See Arbitbation and Award) . 461
United States-
Definition of word, sub. 22 .... 782
UuvoidAble casulty—
Ground for new trial, sub. 7 . . . . 618
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IKDBX TO CIVIL OODB.
768
8X0TI0V.
Uakoowa defeodant--
Action for discovery of, when al-
lowed 686
Description of, in petition and proc-
ess 691
by amended petition, if name
and residence discovered . . 691
Provisions concerning non-residents
apply to ,691
Warning order against 67, 68
Uuoand mind--
See Pebsoh op Unsound Mind.
Usarpatioa of office —
(See Repealing or ^Vacating
Charter) . . . / 480
Vioitiiif cliarter—
(See Repealing or Vacating
Charter) 480
Vioitiag indgnents—
Court that may 513, 518
Injunction pending proceedings . . 528
Ordinary action in equity 17
Petition for 620
See Appeals.
Vacotiofl—
Cleric may appoint guardian ad litem
during, sub. 2 88
may make order of survey during, 671
may make order of reference to
commissioner in 481
Filing pleadings during ... 108, 100
Judge may allow party to sue in
forma pauperis during ... • 87
Valie—
Allegations of, must be proved
when 126
need not be verified when, sub. 6 . 116
Matter must exceed $26 to authorize
injunction 284
must exceed $20 to entitle party
to jury trial 718
Specific property claimed, value of
must be fixed in judgment . 888
Variance—
Between pleading and proof, when
material 129
immaterial, how cured ...... 180
total, is failure of proof 181
Contract concerning 181
See amendment to 181
(48)
ssonov.
Vender-
Entitled to attachment against
fraudulent purchaser . . • 260
Venne of actions-
Absent defendants, against .... 76
Alimony, for 76
Banks, against 71
Board of education, against .... 68-
Change of in circuit court, page 671.
inferior courts, page 578. ^
criminal cases in, page 575.
Commissioners of sinking fund,
against 68
Common carrier, against 78
Contractor of public works, against, 77
Corporations generally, against . . 72
Decedents' estate to settle 66
partition of . . « 66
sale of 66
distribution of 66
Distribution of decedents' estates, 66
Divorce, for 76
Enforcement of judgments, for . . 70
Fine or penalty, for 6S
Forfeiture, for 68
Guardian, against by ward .... 67
Injury to character or person, for . 74
to real property, for 62
Inmates of asylums, against .... 69
Insurance companies, against ... 71
Lunatic, against 69
Non-residents, against 51, 76
Officers, against for breach or neg-
lect of duty 68
on bond of 68
Partition of real property, for, 62-2, 66
Penalty to recover 68
Prisoners, against 69
Probate of wills, for 64
Railroad, against 78
Real property, for recovery of . . . 62
Return of nulla bona, on 70
Transitory 78-82
Ward against guardian 67
Wills concerning . . , 64
Venae, cliange of—
(See Change op Venub) page 571.
Verdict-
Announcement of 824
Evidence against, grounds for new
trial 840
General, separate-general or special, 826
General, defined 826
must assess amount of recovery . 829
How arrived at 819
How rendered 824, 825
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754
INDEX TO CIVIL CODE.
SSCTION.
Verdict — Continued,
Judgment contrary to, when to be
rendered 886
to conform to ^4
exception • « 884
court to direct 885
against verdict 886
Jury may find either general, sep-
arate-general or special . . . 827
must find either, as directed . . . 827
Law against, grounds for new trial, 840
New trial, not more than two be-
cause verdict against evi-
dence 841
Poll of jury 824
Separate-general, defined 826
shall prevail over general, if in-
consistent 827
Signed by foreman 826
Special defined 826
must prevail over general, if in-
consistent with it 828
repeal of provisions concerning
amendment to 826
Value of specific property and dam-
age, must be fixed in ... . 880
Written to be 825
Verificatioih-
Attorney or agent may make,
sub. 8, 117
Defined, sub. 24 782
Forma of, page 627.
Interrogatories, of answers to . . . 148
Objection for want of, waived when, 1 88
Oral pleadings of not required . . . 705
Other or greater proof not required
because of, sub. 5 117
Petition may be on or before the
calling of the cause 187
Party may be required to make, in
person, sub. 4 117
Pleadings of, when required . . . . 116
by whom to be made 117
amendments, provisions as to . . 189
Verified—
Includes what, sub. 24 782
Vested ioterest—
Word *' property " applies only to,
sub. 11, 732
View—
Of property or place by jury . . . 818
Void jodgment—
Appeal from, not allowed before
motion to set aside 768
«. . 8TOTIOH.
Waiver-
Depositions, exceptions to 589
Error, as to form of action . • • . 16
as to misjoinder of causes of ac-
tion 86
as to verification of pleadings . . 188
in pleadings 92-4, 118
Rightof trial by jury generally . . 812
in action for injury to person or
character 881
Special, demurrer of 92, 118
Ward-
See GUARDIAJT.
Venue of action against guardian
67
Wamiof order —
Affidavit required to obtain .... 58
who may make affidavit ... 58, 550
effect of as to facts stated, sub. 6, 68
Form of, page 628.
effect of 58
requisites of 58
Against whom granted 57
Attorney for defendant to be ap-
pointed 69
•duties 69
compensation 59
powers ' 59
report by 59
Clerk to make, when 58
Corporation against 67
Court of Appeals, in, sub. 8 . . . . 736
appellant to file statement if he
wishes, made, sub. 1 .... 739
appellant to file affidavit for.
sub. 2, 789
Defendant deemed summoned thirty
days after 60
may be actually summoned after, 61
Form of, page 626.
Non-resident against 57
Return of officer which authorizes,
sub. 4, 68
Revivor of actions, how and when
made in proceeding for . . . 504
Time of filing defense after .... lOP
Warrant-
Forcible entry and detainer in . . 464
Form of, for arrest of witness,
page 648.
Witness, for arrest of 687
Warranty of title—
Conveyance by commissioner, sub. 2,
49
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INDBX TO CIVIL CX)DB.
755
Waste-
Action for, is not barred by proceed-
ings in forcible entry and de-
tainer 468
Restrained, pending traverse . . . 467
Wife-
See Mahbibd Woman, Husbakd.
Wills—
Venue of actions and proceedings
concerning 64
WItMSS—
Action against when not allowed . 542
Adverse party may be 606
Attesting witnesses, provision as to, 606
Attendance of, how compelled . . 628-688
not required more than twenty
miles from residence .... 684
not required to give deposition out
of county 684
Can not be re-examined without
leave 600
Character of may be supported by
evidence when attacked . . 699
Competency of, generally .... 606-607
attesting witnesses, sub. 11 . . . 606
attorney, clergymen and priests,
sub. 6, 606
convict in penitentiary, sub. 8 . . 606
husband and wife, sub. 1 . . . . 606
party as to entries made by him,
sub. 7, 606
against defendant construct-
ively summoned, sub. 8 . . . 606
against deceased person,
subs. 2, 6, 606
against person under disability,
subs. 2, 6, 7, 606
after introducing other proof,
sub. 4, 606
Concealment of minor witness, pun-
ishment for . . . * 686
Contempt, punishment for .... 688
Contradictory statements of ... . 696
witness to be inquired of before
proving 698
Continuance, because of absence of, 816
to obtain personal presence of . . 666
Costs, liable for, when 686
Damages, when liable for 686
Dead person against 606
Deposition of, de bene esse 668
how taken and written . . . 679, 680
Depositions of, generally. See Dbpo-
sinoNS.
Examination of in court . . . 646, 692
direct and cross-examination,
what is 694
person present may be examined, 602
SSOTIOH.
Witaess— Cbn^nu«d
Facts which affect the oiedibillty
of 607
Forms of subpcena and warranty page
648.
Good character of 699
Impeachment of 696
In jail or prison, how evidence of
taken 640
Infant against . . 606
Insulting or vexatious questions to,
forbidden 679, 698
Interrogatories to 678
Judge or juror may be called as wit-
ness 608
Leading questions to 696
Lunatic against 606
Officers, physicians and other per-
sons, whose depositions may
be taken 664
Party filing interrogatories may tes-
tify as to new matter in, 608, 609
Party can not testify as, when. See
Competency, Supra,
Personal presence of, how obtained, 666
Proof of writing by 662 '
Punishment of, for refusing to
testify 686-689
Re-examination of 600
in taking deposition • 668
Separation of 601
Subpoena for. See Subpcena.
duces tecum for 628
Suit against, when not allowed . . 642
Warrant of arrest for 687
Writing, to be submitted to .... 604
Woman —
Defendant interrogatories may be
propounded to 148
Words-
Definition of 782
Work, pabHc—
Venue of action against contractor
for 77
Writ—
Capias ad satisfaciendum 168
Definition of word, sub. 27 .... 782
Forcible entry and detainer of . . . 464
Holiday, issual and service on, 664, 666
Injunction, of, abolished 271
Mandamus 474
Ne exeat, of, abolished 688
Prohibition 479
Scire facias, of, abolished 179
Sunday, issual and service on, 664, 666
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756
IHDEX TO CIVIL OODB.
8XOTIOK.
WrWn—
Act of adverse party, may be read
unless denied 527
Constituting foundation of action
must be filed or accounted
for 120
Constituting evidence may be filed . 128
Disputed handwriting, evidence as
to, amendment to 604
Inoludesprinting, sub. 6 782
Lost, action on 7
WriUmi—Ckmiinued.
Oral proof of, in equity action • . • 562
of, in ordinary action 604
Pleadings founded on need lK)t be
verified 116
in actions for over $50 must be
in writing 115, 706
Year-
Defined, sub. 25 .
782
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INDEX TO CRIMINAL CODE.
Accomplice—
Testimony of must be corroborated, 241
acquittal, if not sufficient .... 242
Bars prosecution for same offense, 176
prosecution for any degree of of-
fense 177
Form of, plea of former 164
Judgment of, in felony case not re-
versed 889
in misdemeanor, when not to be
reversed 862
Reasonable doubt as to guilt en-
titles defendant to 288
Adjonmmeot —
Examining court may adjourn two
days 54
Final, of court discharges jury . . 264
Admoaitloii —
By the court to jury at each ad-
journment 246
Affidavit—
As basis for taking deposition . . . 168
As to what absent witness would
testify 189
Continuance, for 189
Magistrate to require, before issuing
warrant in felony 81
May be read as evidence on trial
under writ of habeas corjma . 418
Objecting to magistrate in examin-
ing court 62
to officer presiding at trial under
writ of habeas corpus .... 418
Allecatloo—
As to person injured, or owner of
property, when not material . 128
As to time, is generally imma-
terial 129
Embezzlement, what sufficient in
indictment for 186
Judgment, what necessary in plead-
ing 131
Larceny, what sufficient in indict-
ment for 186
Allegatloo— Continued.
Libel, what sufficient in indictment
for 182
Perjur}' or subornation of, what
sufficient in indictment for . 184
Ameodmeots and acto—
Amendmenta —
Attorney-general, fees in Court of
Appeals 364, 866
Bail during adjournment of ex-
amining court 66
Constable may take bail 28
Depositions for defendant 168
Error must be substantial to war-
rant reversal 340, 868
Examining court, bail during ad-
journment of 66
Fees of attorney-general in Court of
Appeals 864, 866
Grand juror may disclose proceed-
ings 118
Jurisdiction of justices increased . 18
Jury, view of place by 286
Justices, jurisdiction of, increased . 18
Libel, against newspaper, venue of, 21
Magistrate may summon witnesses
to ascertain offender .... 82
Newspaper, venue of prosecution
for libel 21
Officer may arrest in adjoining
county, when 86
Place, view of by jury 286
Riots, routs, breaches of the peace,
jurisdiction of justices in . . 18
Witnesses, magistrate may summon
to ascertain offender .... 82
Acts—
Conspirator may testify . . . 228, 284
Continuance, provisions concern-
ing 189
County judge, jurisdiction in mis-
demeanors 26
Defendant can testify in his own
behalf 228
Examining courts, who to hold 71
Felony, no warrant for until affida-
vit filed 31
Jurors, grounds of challenge to . . 209
Qualifications of juror ... . . 208
Witness, procuring attendance of
non-resident 161
(757)
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758
INDEX TO CRIMINAL CODE.
SBOTXOir.
Appeals to the Covrt of Appcfli—
In felonies —
Bill of exceptions must show all in-
structions 841
Commonwealth by, shall not sus-
pend proceedings 886
how taken by 887
form of order noting prayer for,
page 674.
time of appealing 887
Death, proceedings upon affirmance
of judgment 846
of accused terminates 842
Defendant can only take from final
judgment . 886
how taken by 886
form of order noting prayer for,
page 674.
no appeal nor reversal after death
of 842
if in penitentiary, shall remain
pending 848
to be removed upon reversal . . 344
if again convicted, credit for for-
mer confinement 846
time of appealing 836
Felony cases, may be taken in . . . 334
Instructions, bill of e.xceptions to
show 341
Judgment of acquittal not to be re-
versed 839
of conviction, reversal for sub-
stantial error 840, 363
of death, proceedings upon affirm-
ance of .... 346
Jurisdiction of court 334
Summons nor notice not necessary
on 888
Suspension of judgment pendinsr • • 836
Time of trial 367 to 360
In misdemeanor —
Appeal, how taken by defendant . 848
form of order granting, page 676.
does not suspend execution with-
out supersedeas 349
in penal action, regulated by Civil
Code 866
damages on affirmance of, if bond
executed 866
Attorney fee to be taxed if Common-
wealth successful 364
Bond to suspend judgment .... 349
Commonwealth, how taken by . . 350
Damages on affirmance of, if bond
executed 356
Errors that authorize reversal . . . 353
Form of supersedeas bond, page 676,
of supersedeas, page 676.
Judgment of conviction to be re-
versed for substantial error . 363
of acquittal not to be reversed if
penalty may be imprison-
ment 362
SBCTXOS.
Appeals to the Covrt ef Appeals— Om/tnvexf.
In misdemeanor —
Jurisdiction of court 347
Manner of appealing 348
Penal actions in 865
Summons not necessary on .... 861
Supersedeas, form of, page 676.
bond, form of, page 676.
execution not suspended unles-s
bond executed 849
Trial of 367
time of 868, 869, 860
Oenercd provisions —
Appeal, when stands for trial . 868, 359
to be decided at term when tried, 360
to take precedence on docket . . 357
Costs to be taxed against defendant, 361
Trial of 357
time of 358. 359, 360
Appeals to circnit coarts—
Attorney's fee and costs taxed on
affirmance 367
Bond for costs to be given 354
form of, page 676.
proceedings on 370
to suspend judgment 365
Case to be tried anew on appeal . . 366
Commonwealth can not appeal to . 363
Costs and attorney's fee taxed on
affirmance 367
County judge, from judgment of
in misdemeanors 25
bond for to be given 364
Defendant may appeal to 362
how appeal taken by 354
when must be taken 369
form of certificate of, page 677.
money paid by to be returned to
if acquitted 368
Execution, how suspended pending
appeal 364, 365
Form of certificate of, page 677.
bond for costs, page 676.
appeal and supersedeas bond,
page 676.
supersedeas, page 676.
Jurisdiction of court 362
Money, collected after appeal to be
paid into court 365
to be paid to defendant if ac-
quitted 367
Proceedings on appeal bonds . . . 370
Supersedeas, form of, page 676.
bond, form of, page 676.
Time to appeal • • 369
Trial of appeal 366
Affameot —
If more than'two shall alternate . . 228
Order of 227
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INDEX TO CRIMINAL CODE.
759
BSOnOK.
ArralcflmMt—
Defendant must plead when .... 157
Defined 454
Only in felonies, and may be dis-
pensed with 155
Arrest^
Bail may arrest defendant 87
arrest of defendant out on ... . 99
clerk to issue warrant for .... 100
Defendant may be arrested after
giving bail 99
Door may be broken to make ... 40
How made 42
no unnecessary force to be used . 43
How officer to proceed under war-
rant of 45
Judge may orally order 38
Magistrate may order, orally when, 38
No unnecessary force to be used . . 43
Officer may break doors to make
arrest 40
how to proceed under a warrant . 46
may summon assistance 41
penalty for refusing 41
may arrest insane, drunken or
disorderly persons . . . 894, 395
Peace officer, may make arrest,
when 86, 36
may arrest insane, drunken or
disorderly persons .... 394, 395
Peace warrant, how ordered on . . 383
Person arrested,to be notified ... 39
charged with" offense to be ar-
rested 8
Private person, may make . . .35, 37
person when may make arrest 87, 38
Prisoner escaping may be pursued . 44
Proceedings on arrest without a
warrant 46
Unnecessary force not to be used . 43
Warrant for 26
form of 27
Arrest of judsmeot —
Court may arrest without motion . 278
may detain defendant for further
proceedings after 279
Defendant may be detained for
further proceedings if judg-
ment arrested 279
Defined 275
Grounds for 276
Motion in arrest of, defined .... 275
when must be made 277
Proceeding if arrested 279
Time motion to be made 277
Articles of impeachmeot—
Defined 431
What they must state 432
Attachment—
Commonwealth may have, after for-
feiture 95
Form of, for witness, page 666.
Person refusing obedience to writ of
habeas eorpua 409
Attorney at«biw—
May sign application for ball ... 81
Not to be taken as bail 80
Attorney for the Commonwealth —
Appeal on behalf of Commonwealth,
in felony 887
in misdemeanor, may be taken by, 850
Duty of, to advise grand jury . . . 109
to state case to jury 2*20
Fees of, see amendment to . . 864, 866
May dismiss indictment by leave . 248
order summons on forfeited bail
bond 94
Notice to, of application for return
of money deposited as bail . 88
To proceed upon breach of bond to
keep the peace 892
Witnesses before grand jury may
be examined by 109
Attorney-General —
Fees of, see amendment to . . 864, 866
Record transmitted to, on appeal
by Commonwealth . . . 887, 860
Bail—
See Bail Bond -^ Deposit in
Lieu of Bail.
Admission to, defined 72
Allowed before conviction 74
not after 76
Application for, how made .... 81
Arri^t of defendant by 87
Attachment against property of . . 96
Attorney not to be taken as ... . 80
Bench warrant, to be indorsed on . 148
officer, how to proceed under . . 146
Bond, defective, effect of 86
if sufficient in substance, not in-
valid 85
to appear in another county trans-
mitted by mail 34, 47
taken by sheriff, delivered to
proper officer 88
form of 82
Forms of, page 666.
Certain officers not to be taken as . 80
Clerk not to be taken as 80
Commissioner not taken as ... . 80
Constable may take 28
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760
INDEX TO CBIMIKAL CODS.
8SOTXOK.
Bali— Continued.
Court may discharge forfeiture
when 96
may remit bond before judgment, 97
to fix amount on bench warrant . 141
Defendant arrested for misde-
meanor may give 28
charged with offense in another
county may give 46
may remain on bail during trial
for misdemeanor 184
remain on bail in felony case . 183
be surrendered by bail .... 86
be arrested by bail 87
discharged by deposit of money . 90
on bail when indicted may be ar-
rested 141
on bail, may be again arrested,
when 99
when entitled to bail, after re-
arrest 100
Deviation from direction in sec. 28
does not invalidate bond . - . 80
Examining court, order of commit-
ment, to fix amount of . . . 67
must take, if sufficient bail be
offered 67
Execution on judgment against . . 802
Exonerated by final dismissal of
charge by grand jury .... 115
Felony trial, pending 183
Form of bonds, page 666.
for examination of bail on oath,
page 668.
Forfeiture of bond given during ex-
amination 58
how bail forfeited ...... 98
proceedings upon 94
Commonwealth may have at-
tachment 96
court may discharge if defendant
appear 96
Habeas corpus to obtain 426
In what cases allowed before con-
viction 74
Indorsement as to, made upon bench
warrant 143
not to be made if offense not bail-
able 145
Insufficient not to be taken .... 78
Justices disagreeing in felony case,
smaller amount to be taken . 71
Justices'court may admit to, during
adjournment 824
Magistrate in other county may
take 46
bond taken by, sent by mail ... 47
May arrest defendant or have him
arrested 87
surrender defendant in discharge
of bond 86
be given pending adjournment of
examining court 66
Misdemeanor cases in 28, 184
JBCnOK.
bail— Continued.
Not allowed after conviction ... 76
Of what the taking of bail consists, 73
Officers taking to fix day for appear-
ance 29
who may take 28, 88, 84
not to be taken as 80
Order of commitment from examin-
ing court to fix amount ... 67
Police or city court may hold to . . 809
Proof of qualifications of 77
Proceedings upon forfeiture .... 94
Qualifications of 76
Several may be taken as 79
Sheriff may take, in what cases . . 83
not to be taken as 80
Substance and form of bond .... 82
Surrenderor defendant discharges . 86
Taking of consists of what .... 73
To be taken if sufficient in the ag-
gregate 79
What peace officers may take ... 84
Who may take bail after commit-
ment 68
Bail-bood—
Effect of bond defective 85
Forfeiture of 93
proceedings upon 94
court may discharge 96
disposition of money deposited . 97
remission of 98
during examining trial 58
Forms of bail bonds, page 666.
How forfeited 98
Irregularities not to invalidate bond, 84
Officers not to be taken on .... 80
Proceedings on forfeiture 94
Substance and form of 82
When court may remit forfeiture . 97
Bank notes —
Sufficient description of, in indict-
ment for larceny or embezzle-
ment 185
Bar-
Acquittal or conviction, for same
offense is 176
bars prosecution for any degree . 177
Dismissal of indictment, will not,
when 178, 248
by attorney for Commonwealth
does not 248
Judgment on demurrer is, when . . 169
Bench warrant—
Bailable offense, how officer to pro-
ceed .... 144
Court, to fix bail on ordering ... 141
may order bench warrant on any
indictment 149
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niDBX 10 OBIMIKAb CODE.
761
tmonov.
Bench wamtti— Continued,
Defined 189
Form and substance of 142
form of, page 664.
indorsement on, as to ball, page
654.
How offloer, other than sheriff, exe-
cuting, to proceed 144
Indorsement on, as to bail 148
May be reissued by order of at-
torney for Commonwealth . 140
be ordered for defendant already
on bail 141
To be issued by order of court . . 140
To issue for defendant already on
bail, if offense not bailable . 145
When may be issued 149
Bios—
Actual or implied, is ground for
challenge 208
Actual defined 209
Implied defined 210
Bill of exceptions—
Exceptions noted of record, how bill
of, prepared 282
Form of and rules for preparing,
pages 645, 646.
Must show all instructions given . . 841
What decisions are subject to excep-
tion 280
decisions are not subject to excep-
tion 281
Body—
Of person detained, may be taken
by person executing writ of
habeas corpus 405
When must be produced on return
of writ of habeas corpus . 411, 412
Bond—
See Bail-bond — Sbcuhitt to
Ebbf thb Pbacb.
Appeal bond on appeal to circuit
court 864
Form of, that may be required be-
fore issuing writ of Jtabeas
corpus^ page 678.
appeal bonds, pages 674-676.
appeal and supersedeas bond^on
appeal to circuit court, page
676.
May be required before issuing writ
of habeas corpus 404
Supersedeas on appeal, to suspend
judgment 849
bond, on appeal to Court of
Appeals, page 675.
BSOnON.
18
Breach of peac^—
Jurisdiction of justice's courts in
Bnrflnry—
May be Joined with robbery in in-
dictment 127
Chnnge of venfie—
PAOB.
Adjacent or most convenient
county ^75, 576
Affidavits, requisites of 576
Application by Commonwealth,
grounds 575
costs of removal paid by county, 578
one application or change only . 578
petition and notice 576
Application by defendant, grounds, 575
one application or change only . . 578
petition, affidavits, notice .... 576
City judge, change to justice ... 579
Clerk's duty in making transfer, 577, 579
Convenient county, change to . . . 575
Costs of transfer, how paid, 577, 578, 579
County judges, change to justice . 579
Justice, change to another justice, 579
Mileage of person making transfer, 577
Papers transmitted, originals ... 577
copies when retained ...... 577
originals retained, when .... 577
Police judge, change to justice . . 579
Preparation for trial 577
Proceedings, when defendant in
custody 577, 578
when defendant on bail . . . 577, 578
Recognizances of witnesses . . 577, 579
Remanded, wiien case to be ... . 578
costs of transfer, how paid . . . 579
motion for, who to make .... 578
original papers and transcript
transferred 579
removal of defendant 578
witnesses recognized 579
Removal from county in state of
lawlessness 576
expenses paid by county .... 576
when costs to be paid by county, 578
Removal of defendant when in cus-
tody 577, 578
when on bail 577, 578
Transfer made by clerk . . . 577, 579
mileage 577, 579
Cnpias pro fine—
Form of, from circuit court, page
677.
from justices* court, page 677.
Challenge-
Actual bias defined
SKCTION.
. . 209
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762
INDEX TO CRIMINAL CODE.
SKCTIOir.
Challenge— Continued,
OhalleDge of one defendant chal-
lenge of all 198
to be tried by the court . . . . 212
Commonwealth to make challenge
first 215
Defined 197
Either party may challenge for
cause 205
Exemption from service as juror
not ground of 211
Grounds of, challenge to panel . . . 199
of general challenge 207
of particular challenge 208
Implied bias, what constitutes . . 210
Juror may be examined on challenge 213
May be general or particular . . . 206
Must be before juror sworn in chief,
unless by leave 202
Number of peremptory, by defend-
ant . . 208
of peremptory, by Commonwealth 204
Order in which different kinds to be
made 216
Proceedings if challenge to panel
sustained 200
To juror is peremptory or for cause 201
Witness may be examined on chal-
lenge 214
Circuit cooiti—
Appellate jurisdiction of . . . 862, 868
of appeals from county judge,
page 899.
amendment to 25
Bond to keep the peace to be re-
turned to 886
Change of venue in. See Changs
OP Venue.
Grand jury to give locality of of-
fense 16
Indictment gives jurisdiction of all
degrees of offense 14
Judge of, may issue writ of Habeas
corpus . 899
Jurisdiction of, appellate . . . 862, 868
of appeals from county judge,
amendment to 25
original 18
indictment gives, of all degrees
of offense and included of-
fenses 14
local, of 18
either county has, of offenses
over river bounding them . . 20
of offense committed in part in
different counties 21
of offense of importing property
into several 22
of kidnaping or [imprisonment
continued in several .... 28
Circflit CWUti-—€kmhnued.
May transfer to city or police courts
cases l&
restrain inferior courts by writ of
prohibition 25
Offense, jurisdiction of, if com-
mitted in part, in different
counties 21
if committed on river bounding
counties 20
by importing property, if it be
imported into different coun-
ties 22
committed in part in different
counties to be tried where . . 24
Security to keep the peace, may be
required by 886
Special judges of, page 569.
City cooiti—
See Police and City Coukts.
Civil action—
Not to be affected by judgment
under writ of habeas corpus . 42S.
Civil Code—
Appeals in penal action regulated by, 365
Bill of exceptions regulated by . . 282
Continuances regulated by, with
exceptions 189
Proceeding in penal actions, reg-
ulated by 11
Summoning and coercing attend-
ance of witnesses regulated
by 161, 829
Clerks-
Appeal bonds, taken and approved
by 849
on appeal to Circuit Court taken
and approved by 864
Bail may be taken by, when • . . . 68
Causes of removal of 448
Circuit clerk to deliver papers to
clerk of inferior court on
transfer 15
Clerk or deputy not to be taken as
bail 80
Court of Appeals may remove from
office 18
Jury to be drawn by 191, 192
May take bail, when 68
Of police court, to issue summons
upon information on oath . . 810
to issue subpoenas 815
Of Senate, shall issue summons on
impeachment 484
shall issue process for production
of evidence on impeachment . 485
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INDKX TO CRUflNAL CODE.
763
Provisions as to clerk of police
court apply to Judge acting
as clerk 820
Removal of, causes of 448
may be removed upon informa-
tion 442
clerk of Court of Appeals to issue
summons on information
against 444
to issue process for production
of evidence 446
Subpoenas, for grand jury issued by, 105
in trial court to be issued by on
request 160
Upon trial of clerk of Court of Ap-
peals, court may appoint
clerk pro iem . • • 450
Commltnieot—
For failure to give bond to keep the
peace 884, 887
Form of order of for such failure,
page 662.
of order of commitment for trial,
page 662.
How order executed 67
Order of, must be written, and fix
amount of bail 67
Committee-
Appointed to prosecute impeach-
ment ^ 458
Commonwealth-
Appeal by, in misdemeanors ... * 860
by to Court of Appeals in felonies, 887
by, does not suspend proceedings
in case . 885
by, not lallowed to circuit court, 868
Evidence for, when to be offered • 221
Has no right of appeal to circuit
court 868
Must challenge juror before defend-
ant 215
Number of peremptory challenges
by 204
ConfetsioB—
Out of court, must be corroborated, 240
Constable-
Bail may be taken by 28
Is a peace officer, and may execute
warrant of arrest 26
Constmction —
Of words used in indictment
187
Continuance —
Affidavit, of what absent witness
would prove 189
when admitted as true or continu-
ance granted 189
Examining court may continue two
days 54
if bail has been given, may extend
time 59
In city or police courts 816
Of trial of information in Court of
Appeals 446
Regulated by Civil Code 189
Trial may be postponed for cause . 188
Conviction-
Bars another prosecution for same
offense 176
prosecution for all degrees of of-
fense 177
Judgment of, to be reversed for sub-
stantial error 840
how rendered on two or more con-
victions 288
Of offense not higher than charged,
or of any included 262
of any offense charged, although
higher degree of offense
proven 265
Not warranted by confession, unless
corroborated . 240
to be had on testimony of accom-
plice 241
Coroner —
Is i)eace officer, and may execute
warrants of arrest 26
When he may take bail 84
Corroboration—
Instruction to acquit unless there be, 242
Of confession out of court, required
to convict 240
testimony of accomplice required
to convict • . 241
What corroboration sufficient . . • 241
Costs-
Bond for costs on appeal to circuit
court 864
form of bond, page 676.
Defendant, taxed against on affirm-
ance 876
taxed against if he fail in Court
of Appeals 861
How regulated on appeals to circuit
court 866
Judgment in misdemeanor case to
include 291
May be adjuged on trial of writ of
habeas corpus 420
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764
INDUX TO CRIMINAL CODE.
Costs — Continued.
On trial of information against
clerk 448
Prosecutor of impeachment liable
for 441
Security for costs of prosecutor of
clerk 447
Unsuccessful party in impeach-
ment trial liable for . . . 440^ 441
Coaaty—
Jurisdiction, extends to river bound-
ing ao
Offense committed in several, prose-
cuted in either 21
of importing property, if it be im-
ported into several .... 22
of kidnaping or unlawful im-
prisonment, if continued . • 28
County attorney-
Examining court, to notify .... 61
When writ of habeas corpus to be
prosecuted by 424
County Mse—
Criminal jurisdiction same as jus-
tice 18
Examining court, held by in certain
cases 71
Is a magistrate and may issue war-
rant of arrest 26
May take bail after commitment . 68
Misdemeanors may be tried by,
page 899.
When he may issue writ of habeas
corpus 899
he may try writ of habeas corpus . 416
Conrt—
Always open while jury deliberat-
ing 263
Bail, when to be taken by court in
which defendant Jtield to ap-
pear 68
to be fixed by, on ordering bench
warrant 141
Bench warrant, only to issue by
order of 140
may be ordered to issue by, al-
though defendant on ball . • 141
may be ordered to issue by, on any
indictment 149
Duty of court to advise grand Jury, 109
Jurors, to try challenges of ... . 212
Jury to be admonished by, at each
adjournment 246
Law, all questions of to be decided
by 286
May permit plea of guilty to be
withdrawn before judgment 174
Court — ConiinueeL
Process, on finding of indictment to
be ordered by 141
Special judge of, page 669.
See Court of Appeals.
Circuit court.
Examining court.
Justices* courts.
Mayors* courts.
Miliiary courts.
Police or dty courts.
Court off Appeals—
Clerks of courts, may remove . . . 442
Continuances may be granted in
trial of 446
Jurisdiction of, extends over whole
State 18. 17
of appeals in misdemeanors, when
it has 847
of appeals in felonies 884
original, for removal of clerks . . 13
May compel prosecutor of clerk to
secure costs 447
compel obedience to process for
production of evidence on trial
of clerk 446
On trial of clerk of Court of Appeals
may appoint clerk jwo tern . . 460
Crime—
County to be prosecuted in
21
Criminal Code—
Application of 2
Regulates proceedings after Jan-
uarv 1, 1877 1
Repeals all laws within its purview, 8
Day-
Writ of habeas corpus may issue on
any day 427
Damages—
On affirmance of misdemeanor case
by Court of Appeals .... 866
Death penalty—
Governor to issue warrant upon af-
firmance 846
when to fix day of execution . . 297
Insanity of defendant suspends • . 296
Judgment must fix day of execu-
tion 290
copy of, authorizes execution . . 298
how to be executed 294
Form of, page 678.
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INDBX TO CRIMINAL CODE.
765
8sonov.
Death ptmMy-^QmHnued,
Judgment affirmed, governor to iflsne
death warrant 846
No appeal nor reversal after death of
defendant 842
Only governor or sheriff can sus-
pend execution 296
Pregnancy of defendant suspends . 296
Sheriff may suspend execution,
when 296
Suspension of 295
Death warraat—
Governor to issue, on affirmance of
judgment 846
if sentence of death not executed
at time fixed 97
Defefldaat—
Appeal by, only allowed from final
judgment 886
to Court of Appeals, how taken • 886
If in penitentiary, to remain pend-
ing 848
to be removed, if judgment re-
versed 844
again convicted to have credit
for former confinement . . • 845
Arraignment of, in felonies .... 165
may be dispensed with 155
Arrested for misdemeanor may give
bail 28
to be tried forthwith 48
on bench warrant to be taken be-
fore sheriff to give bail . • . 144
Bail may surrender defendant ... 86
may arrest or have him arrested . 87
before conviction, when entitled
to 74
after conviction not allowed ... 75
during adjournment of examining
court 55
application for, how made ... 81
may remain on, in trial for felony
until case submitted .... 188
Challenge of one is challenge of all . 198
number of peremptory allowed to, 208
Charged with offense in another
county, to be sent to such
county 46
Commitment of, if indicted while
on bail for offense not bail-
able 145
Duty of, when bail-bond defective
as to time for appearance . . 86
Entitled to benefit of disagreement
between justices in felonies . 71
on surrender, to return of money
deposited in lieu of bail • • • 88
Error in name of, in indictment may
be corrected 125
Evidence, when he must offer . . . 228
may testify in his own behalf . . 228
ssonoN.
Defeodaat— Continued.
Felony, to be present during trial
for 188
may remain on bail until case
submitted 188
to remain in custody during trial 229
Grand iury refusing to indict, to be
discharged 115
Guilty, plea of, to be entered in
person 178
Habeas corpus, writ of, how served
if defendant conceal himself, 407
defendant to be notified to what
officer writ has been returned, 41 7
Higher offense proven than charged
may be held to answer . . . 282
In peace warrant to be discharged
if prosecutor fail to appear . 889
or if no ground of apprehension
appear 890
Indictment not found at second
term to be discharged .... 117
Insane or pregnant, not to be exe-
cuted 296
trial of sanitv of 166
to be sent to lunatic asylum if in-
sane 156
Joint defendants in felony entitled
to separate trial 287
are competent witnesses 284
Judgment, detention after arrest of, 279
must be present at, in felony case, 285
information to before rendering . 286
causes he may show against . '. • 287
Jury, statement of case to .... 222
in police or city court, when he
may demand 819
in justices* court, when he may
demand 881
right of to have polled 267
may return verdict as to all or
any of several defendants . . 266
May object to magistrate in examin-
ing court 52
surrender himself in discharge of
bail 86
dispense with arraignment • • • 155
plead if demurrer overruled . . . 171
remain on bail during felony . • 188
during trial for misdemeanor . 184
have jury polled 267
be convicted of lower degree than
charged 262
Must plead if motion to set aside
indictment overruled .... 161
Offense not proven to be discharged 65
Pleadings allowed on behalf of . . 162
Plea of guilty to be entered in per-
son 178
Reasonable doubt as to guilt entitles
to acquittal 288
Statement of case by, or attorney to
jury 222
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766
INDEX TO CRIMINAL CODE.
8BOTIOK.
Defendant — Continued,
Testimony of, in his own behalf . . 228
Trial of sanity of 166
to be sent to asylum if insane . . 156
Trial, to be held, for if offense
proven ... * 66
if held for may have witnesses
recognized 69
must move to set aside indict-
ment or plead 167
may be again arrested after giv-
ing bail 9»
when entitled to bail after such
arrest 100
To be discharged if indictment set
aside, unless next jury in-
dict 160
discharged if grand Jury refuse
to indict 115
have opportunity to procure coun-
sel . 51
Def rees of offense-
Conviction of offense charged, al
though higher proven . . • . 266
of any degree not higher than
charged 262
or acquittal bars further prosecu-
tion 177
Indictment gives Jurisdiction of all
degree's 14
Proceedings if higher degree proven, 232
Reasonable doubt as to degree, con-
viction should be of lower . . 289
What are degrees of the same of-
fense .268
Demurrer-
Form of entry of, page 671.
of entry of, on record 164
Grounds of demurrer 165
Is allowed on behalf of defendant . 162
Judgment on is final, when .... 169
if sustained on other grounds case
to be resubmitted 170
Jurisdiction to 166
proceedings if sustained 167
May be oral, to be entered on rec-
ord 168
No Joinder in necessary 179
Overruled, defendant may plead . . 171
Proceedings if sustained for want of
jurisdiction 166
Deposit in lieu of liall—
Bail discharged, if deposit made . . 90
in lieu of 56, 89
direction concerning 66
peace officer responsible for . . . 57
amount to be deposited 60
BMCniOH.
Deposit in Ueu of btdl- Continued.
Court may apply in discharge of
fine 92
may discharge forfeiture .... 96
Defendant may deposit amount and
be discharged 89
deposit by, after bail discharges
bail 90
Deposit, entry of to be made on
minutes of examining court . 66
to be returned if defendant ap-
pear , 56
magistrate must fix amount of • . 56
with peace officer pending ad-
journment of examining court, 56
how forfeited 98
peace officer responsible for ... 57
how amount determined • . . . . 60
held subject to order of court . . 91
returned on surrender of defend-
ant 89
paid to trustee of jury fund if
defendant does not appear . . 56
returned on final dismissal by
grand jury 116
Disposition of after forfeiture ... 97
Entry of, on minutes of examining
court 56
form of entry, page 658.
Form of entry of forfeiture, page 658.
of entry of deposit on minutes of
examining court, page 668.
of notice to attorney for Com-
monwealth of surrender,
page 659.
of certificate of trustee of Jury
fund of amount deposited,
page 659.
Magistrate must fix amount of . . 65
May be made with peace officer pend-
ing adjournment of examin-
ing court 65
Money deposited returned on sur-
render of defendant 89
deposited and forfeited to be cred-
ited to Jury fund 97
Peace officer responsible for ... . 57
Return of upon surrender of defend-
ant 88
Trustee of Jury fund to give certifi-
cate of amount of 89
form of certificate, page 659.
deposit paid to, on forfeiture . . 66
held by,subject to order of court . 91
Depositions —
Defendant may take 168
Mode of taking them . 168
Dismissal-
Of indictment does not bar further
prosecution 248
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INDEX TO CRIHINAI. CODE.
767
8SOTIOK.
Dismissal — CkmHnned,
Offenses misjoined dismissal as to
one 168
When dismissal will not bar further
prosecution 178
Disorderly person-
How to be dealt with 896, 898
Peaceofflcers to arrest 896
Docket—
Oase to stand for trial on day it is
docketed 187
How to be made out 186
Docnments—
See Written Instruments.
Door-
Breaking to make arrest 40
288
289
898
894
Doubt— reasoaable—
Entitles defendant to acquittal . .
to conviction for lowest degree .
Dmnken person —
How to be dealt with 896,
To be arrested by peace oiflcers . .
Bfflbezzlemeat—
Joinder with larceny in indictment, 127
What sufficient charge of 135
Evidence-
Accomplice, testimony of must be
corroborated .... . . 241
corroboration wanting, court to
instruct jury to acquit . . • 242
CJourt of Appeals to coerce produc-
tion of, on trial of clerk . . . 445
clerk of to issue process for pro-
duction of, on trial of clerk . 445
Commonwealth, evidence for, when
to be offered 221
Confession out of court must be cor-
roborated 240
Court may compel production of
documents and other things
to be used as 152
Defendant may testify in his own
behalf 228
when evidence for to be offered . 228
Depositions for defendant 158
Grand jury, what evidence they
shall receive . 107
Handwriting, evidence of disputed.
See sec. 604, Civil Code.
Jury may hear evidence after re-
tiring 249
BxmoN.
Evidence— Coniintied,
Jury may have view of place . . . 286
to be accompanied by accused and
judge 286
may hear evidence after retiring . 249
Minutes of examining court, not
evidence 64
Non-resident witness for Common-
wealth 151
Papers in evidence to be taken by
jury 248
Rebutting evidence 224
Senate to coerce production of, on
impeachment 486
clerk of, to issue process for, on
impeachment 485
Subpoena duces tecum 152
Testimony of accomplice must be
corroborated 241
if corroboration wanting, jury to
be instructed to acquit . . . 242
of defendant in his own behalf . . 228
as to disputed handwriting, see
sec. 604, Civil Code.
Witnesses, how attendance of se-
cured 151
non-resident, how Commonwealth
may secure 151
subpoena for witnesses 151
What evidence grand jury shall re-
ceive 107
When Commonwealth to offer . . . 221
defendant to offer 228
Examining court-
Adjournment not exceeding two
days 54
defendant may be bailed during . 55
Amendment to ... 71
Bail during adjournment 55
money deposited in lieu of . • • . 55
if sufficient, court must take it • 67
Commitment, order of 76
Consists of one magistrate . . .49, 71
Court must issue subpoena for wit-
nesses 61
may adjourn for two days .... 54
defendant may object to ... . 52
proceedings when objection made, 68
to consist of county judge in
homicide 71
County attorney to be notified ... 51
County judge to hold in homicide . 71
Defendant to have opportunity to
procure counsel 61
may object to magistrate presid-
ing 62
to be committed or give bail dur-
ing ad joumment 56
falling to appear, bond to be for-
feited 58
discharged if offense not proven . 66
if offense proven, to be held ... 66
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768
INDEX TO CRIMINAL CODB.
8KCT10N.
Ezaoiinias court — CkmUnued,
Defendant if other than that
charged proven to be held . . 66
time for appearance may be ex-
tended 69
Deposit in lieu of bail 55
entry of to be made on minutes • 56
form of entry of, page 658.
if defendant appear, to be re-
turned 66
if he do not appear, to be paid to
trustee of jury fund .... 66
Entry of deposit in lieu of bail to
be m^de on minutes .... 66
form of, page 668.
form of entry of forfeiture,
page 658.
Fees of magistrate 71
Felony case 71
bail allowed during trial .... 66
Form of entry, of deposit, page 668.
of entry of forfeiture, page 668.
of minutes of examining court,
page 660.
of order of commitment,page 661.
Homicide, county judge to preside, 71
Magistrate, may be objected to • . 62
proceeding when objection made, 68
in such case magistrate to retire . 52
to deliver minutes to clerk of
court 70
to take ball 67
how to proceed In felony .... 71
May adjourn two days 64
Minutes of 64
to be delivered to clerk of court . 70
Offense not proven, defendant dis-
charged 66
proven to be held 66
other than that charged proven,
to be held 66
Order of commitment 67
Proceedings if defendant charged
with felony 71
Spectators may be excluded .... 68
Testimony, substance of to be stated
in minutes 64
Trustee of jury fund, money de-
posited and forfeited paid to, 56
Witness to be recognized 69
may be separated 62
subpoenas for, to be issued .... 61
defendant may testify in person . 228
continuance because of absent . 189
Writ of haJbeaa corpus^ if bail re-
fused 426
Exception—
See Bill op ExcBPnoNfl.
Must be noted of record 882
What decisions are subject to ex-
ception 880
What are not 881
^ aacmov.
Execatioa—
Appeal to circuit court, how sus-
pended on 864, 865
Bail, execution on judgment against, 802
Copy of judgment authorizes exe-
cution of 293
Death warrant when issued by gov-
ernor 846
Execution, how suspended on ap-
peal in misdemeanor .... 849
on judgment for fine 801
on Judgment against bail .... 802
on judgment for abatement of
nuisance 808
sheriff to make written return on, 800
form of, for fine, page 677.
Fine, execution on judgment for . 801
period of confinement for ... . 801
Form of execution for fine, page 677.
Gk>vernor to issue death warrant on
affirmance 846
to fix day for executing death
sentence when 297
How Judgment of death to be exe-
cuted 294
suspended on account of insanity
or pregnancy 296
Imprisonment, how Judgment of
executed 298
Judgment of death, must fix day of
execution 290
copy of authorizes execution . . 298
how and when, to be executed . . 294
suspended on account of in-
sanity or pregnancy 296
what oflicers may suspend execu-
tion of 294
Nuisance, execution of judgment
for abatement of 808
Period of confinement for fine ... 804
Replevin of 805
Sheriff to make written return of . 800
what oflBcers may suspend execu-
tion of death sentence .... 296
Supersedeas bond necessary to sus-
pend execution on appeal in
misdemeanor 849
Exemptloa—
From service as juror not a ground
of challenge 211
Fact—
Judicially noticed need not be al-
leged 180
Non-resident witness 161
Of examining court 71
witnesses in impeachment case . 487
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INDEX TO CRIMINAL CODE.
769
8BCTI0K.
Pec — Continued.
Taxed for attorney Jf Common-
wealth succeeds on appeal . . 854
taxed for, in circuit court, if
Commonwealth succeeds . . 867
Fclooy—
See Appeals to Coubt op Ap-
peals.
Appeal may be taken from judg-
ment in 884
County judge to hold examining
trial for, when 71
Defendant may remain on bail dur-
ing examining trial for,
amendment to 55
must be present during trial for, 183
may remain on bail until case
submitted 188
to remain in custody during trial
for 229
must be present when judgment
rendered 285
Definition of felonies 6
Examining trial for 71
Joint defendants in, entitled to sep-
arate trials 287
Judgment in, at what time to be
rendered 288
defendant to be present 285
Warrant not to issue for, without
affidavit 31
Separate trial of joint defendants . 287
Fine-
Confinement for, to be one day for
each $2 804
Form of judgment for, page 678.
Judgment may direct imprisonment
for 289
May be recovered by penal action . 11
Replevy of judgment for 805
Poremaa —
Of grand jury may administer oath
to witnesses 106
to sign indorsement on indict-
ment . 119
Forfeiture—
Bail-bond given during examina-
tion 58
or money, deposited in lieu of
bail 98
Court may remit before judgment . 97
may discharge, if defendant ap-
pear 96
Form of summons on, page 662.
Proceedings upon 94
Poffery—
Sufficiency of indictment for ... 183
(49)
SBOTXOir.
Former acquittal or coovlctioo —
Bars prosecution for same offense,
176, 177
Form of plea of 164
May be pleaded with, or without,
plea of not guilty 172
Plea of, deemed controverted with-
out reply 179
Forms—
Appeah — ^^®*'
Forms in, to Court of Appeals, 674, 675
in to circuit court 676
AUcuAmeni —
For witness 655
Bail—
Bail bonds 650, 657
Deposit in lieu of 658
Examination of on oath 658
Indorsement on warrant as to, 658, 654
Recognizance of 658
Summons on forfeited bail-bond . . 652
Bench warrard —
Form of 654
Indorsement on, as to ball 654
Order of 671
Bill of exeeptione —
Form of and rules for preparing,
645,646
Bonds —
Appeal bond, to circuit court . . . 676
Bail-bonds 656, 657
Bond on application for writ of
habeas corpus 678
Supersedeas bond, on appeal to
Court of Appeals 675
on appeal to circuit court .... 676
To keep the peace, or for good be-
havior 661, 662
Capias pro fine —
Form of 677
CertifixxUe —
Of deposit given by trustee of jury
fund 659
appeal in felony 674
appeal to circuit court 677
Deposit in lieu of bail —
Forms concerning 658
Demurrer —
Entry of, on record 671
Examining cmirt^
Forms of proceedings in 660
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77©
OTBEX TO CRIMINAL CODE.
PAGB.
Forms — Continued.
Execviion —
For fine 677
Foffeiiure —
Entry in minutes of examining
court of forfeiture of deposit, 658
Habeas corpus —
Forms under writ of 678
Indictment —
Forms of 668, 670
Indorsement —
By bail to secure arrest of de-
fendant 669
Changing time for return to writ of
habeaa corpus ..••••.• 678
On warrant, as to bail 654
Judgment —
Forms of judgment on conviction, 678
Minvies of examining court —
Form of . 660
Notice —
Of change of time for return to
writ of habeas corpus .... 678
To attorney of motion for return of
deposit in lieu of bail .... 659
Orders of court —
For bench warrant 671
summons on indictment 671
If offense committed out of Jurisdic-
tion of court 672
committed out of State 673
Judgments on conviction 678
On ascertaining defendant's true
name 672
Order noting prayer for appeal . . 674
Setting aside indictment and resub-
mitting case 672
Pleadings of defendant —
Forms for entry of, on record . . . 671
Recognizance —
Of bail 658
witnesses in examining court • • 656
Security to keep the peace or for
good behavior —
Forms for 661, 662
Subpcena —
Forms of 654, 655
Summons —
Forms of 662
PAGB.
Forms — Continued,
Supersedeas —
Bond on appeal to Court of Appeals, 675
to circuit court 676
Surrender of defendant —
Acknowledgment of, given by
jailer . 659
Indorsement by bail to secure arrest
of defendant 659
Warrant of arrest —
Forms of 653
Indorsement on, as to baU 653
Good behavior—
8BCTIOS.
See Secubitt to Kebp the
Peace 882
Qovemor—
May suspend execution of judgment
of death 295
Must issue death warrant upon
affirmance 846
if sentence not executed on day
fixed 297
Shall send military aid, when ... 374
Qraod loror—
Concurrence of nine necessary ... 119
Duty to disclose offenses known .104
Must keep secret proceedings . . 112
Not responsible for acts or votes, ex-
cept perjury 114
When may be required to disclose
testimony 113
Qraod lory —
Attorney for Commonwealth may
examine witnesses before . . 109
to advise, when requested .... 109
Clerk to issue subpOBuas for ... . 105
Concurrence of nine jurors neces-
sary 119
Court to advise 109
Defendant discharged unless next
grand jury indict 160
to be discharged at second term . 117
Demurrer sustained, case resubmit-
ted 170
Duty of 102
grand juror to disclose all offenses
known to him 104
Entitled to free access to all prisons
and records 103
Error in formation of, ground for
setting aside indictment ... 158
Evidence they shall receive .... 107
Foreman may administer oath to
witness 106
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INDBX TO CRIMINAL OODB.
771
sicTioy.
Qnuid \wf — Continued,
Form of order setting aside in-
dictment, and resubmitting,
page 672.
Formation of 101
How witnesses compelled to testify
before 108
Indictment, error in 'formation of
jury for setting aside .... 158
presence of unauthorized person
with grand jury ground for
setting aside 168
not found at second term, defend-
ant discharged 117
concurrence of nine jurors neces-
sary 119
manner of presenting to court . . 121
In what cases they should indict . Ill
J uror not responsible except perjury, 114
may be compelled to disclose
testimony 118
Manner of presenting indictment in
court 121
^lay be required to give locality of
offense, when 16
have advice of court and Com- •
monwealth's attorney .... 109
Nine jurors may find 119
Oath to witnesses 106
Papers returned by magistrate to
be laid before 116
Police or city court may impanel . 807
Proceedings must be kept secret . . 112
Resubmission of case to . . . .116, 116
Selection of 101
Summoned and impaneled as pre-
scribed in Ky. Stat 101
What evidence they shall receive . 107
Who may be present with 110
When court may order case submit-
ted to another grand jury . . 116
if indictment set aside case to be
resubmitted 159
defendant to be discharged ... 160
Witness compelled to testify before, 108
OoiKy—
Plea of, may be withdrawn . • . • 174
can only be entered in person . . 173
Habeas corpoi —
Aifidavits may be read as evidence, 418
Bail, before whom to be tried if ex-
amining court refuse .... 426
Before whom writ returnable . . . 409
whom writ to be tried if examin-
ing court refuse bail .... 426
Body of person detained to be pro-
duced except 411
when need not be produced . . . 412
Bond may be required before Issu-
ing writ 404
Form of, page 678.
SKCTIOy.
Habeas corpui — QmUnued,
By whom, and for What causes, is-
sued 899
by whom and how served .... 406
Contente of writ 402
to whom directed 402
Defendant to be notified to what
officer returned 417
Enforcing judgment 414
Form of writ, page 678.
of bond that may be required be-
fore issual, page 678.
Form of indorsement, page 678.
of notice if time for return
changed, page 678.
How issue formed 419
objection made to officer presid-
ing 418
writ served if defendant conceal
himself 407
Judgment, how enforced . . . . 414
not to prevent issuing of another
writ 429
Notice to be given if time for re-
turn changed 408
form of notice, page 678.
Officer related or interested not to
preside 416
Papers to be returned to proper
court 421
Penalty for refusing to issue . . . 401
for refusing obedience to .... 409
Person released under not to be im-
prisoned except 422
Proceedings if person in custody ap-
pear to be guilty of public
offense 423
under writ not to affect civil suit, 428
upon refusal to obey writ .... 409
Powers of prWate person executing, 427
Prisoner, in what cases may be re-
moved from jail or custody . 425
Process for securing attendance of
witnesses ... 414
Return, when and how time for may
be changed 408
form of indorsement, changing
time of, page 678.
to what officer to be returned . . 416
of by person serving it 408
before whom to be made re-
turnable 409
Service of, by whom and how made, 406
how served if defendant conceal
himself 407
Trial and judgment under writ . . 420
before whom tried if examining
court refuse bail 426
Writ may be issued on any day . . 427
may issue against religious or
* other association 424
powers of private person execut-
ing 427
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772
INDEX TO CRIMINAL CODE.
SBCTION.
Habeas corpns — Continued.
Writ, proceedings under not to
affect civil suit 429
person released under, not to be
imprisoned except 422
by whom and for what causes is-
sued 899
penalty for refusing to Issue ... 401
contents of 402
bond may be required before Is-
sual 404
to what ofBoer it shall be re-
turned 416
trial and judgment under .... 420
When and where to be made re-
turnable 402
officer granting may order body of
person detained to be taken . 405
Haodwritiis—
Comparison of disputed, see act — ,
sec. 606, Civil Code.
Havius coMterfelt money In posies-
sion—
And passing money may be joined
in indictment 127
Importinf property—
Prosecuted in any county into
which imported 22
Trial where defendant first ar-
rested or indicted 24
Impeachment —
Articles of 481
' what must state 482
Committee to prosecute 438
Costs if there be no prosecutor . . 441
to go against unsuccessful party . 440
Defined 480
How production of evidence coerced, 436
Oath to be taken by senators . . . 438
Process of production of testimony, 485
Privileges and pay of witnesses . . 437
Senate has jurisdiction of 13
Summons on, how issued and served, 484
What absence prevents senator
from voting 489
Imprisonment —
For fine to be one day for each $2 , 804
Form of judgment for, page 678.
Judgment of, how executed . . . . 298
may direct imprisonment for fine, 284
of imprisonment how to be exe-
cuted 298
Unlawful may be prosecuted where
it is begun or continued ... 23
to be tried where defendant first
indicted or arrested 24
Incladed offenses-
Conviction may be of any offense
included 262
Indictment gives circuit court juris-
diction of 14
Offenses included in one charge . . 264
Indictment-
Allegations as to time 129
as to person injured or owner of
property 128
Attorney for Commonwealth may
dismiss 243
Bench warrant upon 188
Bank notes, for larceny of, what
sufficient description .... 185
Certainty in 124
Cierk to file 121
Concurrence of nine grand jurors
necessary 119
Construction of words in 187
Court to order process on ..... 141
Defendant may move to set aside . 157
must plead if motion overruled . 161
to Jbe discharged unless next grand
jury indict 160
error in name corrected 125
indicted for offense not bailable
to be arrested 145
Definition of 118
Demurrer, when judgment on final, 169
grounds of, to indictment .... 165
Directness in 124
Dismissal of, when not bar .... 178
of one offense, if misjoinder . . . 168
Embezzlement, allegations charging, 186
Error in name of defendant cor-
rected 125
Facts judicially noticed not to be
stated 180
Form of 128
of summons on 146
of order setting aside and resub-
mitting, page 672.
Forms of^ page 663.
Found in one county, when jurisdic-
tion of other counties ex-
cluded 24
Gives circuit court jurisdiction of
all degrees 14
Grand jury, when should find . . . Ill
Grounds on which set aside .... 158
of demurrer to 165
How presented 121
In what cases grand jury should
find Ill
Joinder of offenses in 127
Judgment, how pleaded in .... 181
Jurisdictional facts to be stated . . 181
Larceny for, allegations of ... . 185
Libel, what sufficient indictment
for 182
Misjoinder dismissal as to one . . 168
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INDEX TO CRIMINAL CODE.
773
8I0TI0M.
Imlictneot — Continued,
MoDcy, what sufficient description
of 186
Must charge but one offense, except
as provided in sec. 127 . . . 126
Name of defendant may be cor-
rected 126
Names of witnesses to be written on, 120
Need not pursue words of statute . 186
Nine jurors may find 119
Offenses which may be joined in . 127
more than one may be dismissed
as to one 168
what are indictable and what are
not t 9
not bailable, defendant to be
arrested 146
Perjury or subornation of, what
sufficient for 184
Pleading of defendant to 161
Police courts in 806
Presenting to court 121
Process upon 188, 189
Proceedings when set aside ... 169
upon quashal of 288
Presumptions of law and fact not to
be stated 180
Reading of to Jury 219
Resubmission to jury 238
Statement as to person injured . . 128
as to owner of property 128
Statute, words of, need not be pur-
sued in 186
Time, allegation as to generally im-
material 129
Summons on, form of 146
To be read to jury 219
What necessary in pleading judg-
ment 181
offenses are indictable, and what
are not 9
When not necessary in police or
city court 806
court should quash 288
judgment on demurrer final . . . 169
Witnesses* names to be placed on . 120
Words, construction of 187
Written instrument, description of, 181
lodoreement—
Bail by to procure arrest of defend-
ant 87
form of indorsement by, page 669.
Changing time for return to writ
of habeas corptia 408
form of such indorsement, page 678.
Warrant on fixing amount of bail . 28
bench warrant as to bail .... 148
form of, on warrant as to bail,
page 664.
Iniane person—
How to be dealt with 896, 897
To be arrested by peace officer, 12, 894
sxoTioir.
luaoity—
See Sanity.
Arrest of insane person . . . .12, 894
proceedings upon 896, 897
Postponement of proceedings to try
question of 166
Reason why judgment shoiild not
be pronounced 287
Suspends execution of judgment
of death ... 296
Verdict and proceedings on plea of, 268
Instmctioos—
Argument concerning 226
jury to withdraw during .... 226
Bill of exceptions must show all . . 841
Corroboration not sufficient, defend-
ant acquitted 242
Court shall give 226
shall instruct jury to acquit, if
corroboration required not
produced 242
Instructions given after jury retire, 249
Jury to withdraw during argument
on 226
Reasonable doubt as to 238
Written to be 226
Issues —
By whom issues of law and fact
tried 180
City or police courts, trial in . . . 819
Fact of, when arises 182
Formed, on trial under writ of
habeas corpus 419
Justices* court^by whom tried in . 881
Law of, when arises 181
Oathof jury totry 217
Jailer—
Commitment to of person arrested . 67
May execute warrant of arrest . . 26
Must detain defendant surrendered,
as on commitment 86
give acknowledgment of sur-
render 86
Joinder —
In demurrer not necessary . . . • • 179
Offenses that may be Jpined in in-
dictment 127
Joint defendants—
Testimony of 284
Jttdfe—
See County Judge.
City or police court of, may fix
terms 808
may issue warrant of arrest ... 812
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774
INDEX TO CRIMINAL CODE.
ssonoN.
Jadf e— Continued.
County judge, jurisdiction of . . . 13
iu misdemeanors, page 899.
Habeas corpus^ judges who may issue
writ 899
writ to be returnable before judge
of one of these courts .... 400
May call out military to suppress
riot 379
Provisions as to clerk apply to
judge acting as 820
Trial court, of not to be taken as
bail 80
Jadfineit—
See Arrest of Judgment.
Acquittal of, in misdemeanor when
not reversed 852
in felony not to be reversed . . . 839
Arrest of 275, 277
motion for 275
proceedings upon 278, 279
At what time to be rendered . . . 288
Conviction of, in felony reversed for
error 840
in misdemeanor reversed for error, 853
Copy of, authorizes execution . . . 293
Death of, to fix day of execution . 290
how and when judgment exe-
cuted 294
Defendant must be present when
pronounced in felony .... 286
causes may show against .... 287
refusing to plead, final judgment
to be entered . . ^ 171
credit for former confinement
upon conviction after reversal, 346
Demurrer, in what cases judgment
on final 169
Duty of court, before rendering . . 286
Felony, defendant to be present
when pronounced in .... 286
when may be rendered 283
Final to be entered if defendant re-
fuse to plead 171
Fine, may direct imprisonment for, 289
Form of judgment of death,
page 678.
of judgment of imprisonment,
page 673.
of judgment for fine and imprison-
ment, page 673.
of judgment of removal from
office, page 674.
Habeas corpus, on trial of 420
not to atfect civil action for same
cause 428
not to prevent issuing another writ
for same cause 429
How rendered on two or more con-
victions 288
6SCTIOir.
Jadfa^nt— Continued,
In what cases judgment on demur-
rer final 169
misdemeanors, shall include coBts, 291
Insanity, cause against ...... 287
Malfeasance in office, nature of
judgment for 292
Misdemeanor in, shall include coats, 291
of acquittal in, not to be reversed
when 862
of conviction in, to be reversed for
error 353
judgment, when may be ren-
dered 283
Misfeasance in 292
Nature of, for malfeasance in office, 292
Of acquittal in misdemeanor when
not to be reversed 862
conviction in misdemeanor to be
reversed for substantial error, 853
acquittal, in felony not to be re-
versed 839
On trial under writ of habeas corpus, 420
how such judgment enforced . . 414
not to affect civil action for same
cause 428
not to prevent issuing of another
writ for same cause 429
Penalty to be fixed by ,284
Suspended by appeal 886
Time to be rendered 283
Two or more convictions 288
What necessary in pleading .... 181
Jurisdiction—
Appellate, of circuit court . . 862, 863
of circuit court from county
judge, page 899.
of Court of Appeals in felonies . 334
of Court of Appeals in misde-
meanors 847
Breach of the peace, of justices'
courts in 13
Circuit court, local of 18
of offense committed on river . . 20
of offense of importing property, 22
of offense committed in part in
several counties 21
City and police courts, local of . . 19
See Jurisdiction, page 651.
County judge, page 899.
Court of Appeals extends over whole
State 17
Courts generally 13
Demurrer to 166
Importing property 22
Indictment gives, of all degrees of
offense 14
Judge of county court 18
in misdemeanors, page 899.
Justices' courts, local of . ... 18
see jurisdiction, page 550.
Libel, amendment to %
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INDEX TO ORIMIKAL CODE.
775
8BCTT0N.
Joiifldlctioii — ConHmied,
Local, of circuit and justices' courts, 18
of city and police courts .... 19
Offense of importing property ... 22
committed in part in several
counties • 21
to be tried where defendant
first indicted or arrested . . 24
Over river bounding two counties, 20
Police courts* iurisdiction, page 561.
Proceedings if demurrer sustained
lor want of 166
if want of appear on trial .... 167
if want of appear on trial . . 280, 281
form of orders in such cases,
page 672.
Riots and routs, of justices' courts
in 13
Senate of Kentucky 18, 17
State, proceedings when offense
committed out of 281
Trial, proceedings when want of,
appears on 167
Juror —
Ck)urt may excuse sick juror . . . 260
Juror may be examined to show
verdict was by lot 272
May be examined on challenge . . 218
Proceeding if juror taken sick . . . 261
Jury—
See Trial and Verdict.
Actual bias defined 209
Admonition by court to 246
Adjoining county from 194
Adjournment final, discharges . . . 254
After completion of, court may per-
mit sick juror to separate
from others 251
Attorney for Commonwealth to
state case to 220
Bias, actual, defined 209
implied, defined 210
Board for 247
Challenge may be to panel or in-
dividual juror 197
of one defendant is challenge of
all 198
grounds of, to panel 199
proceedings when sustained to
panel 200
of juror is peremptory or for^
cause 201
must be before juror sworn, un-
less by leave 202
number of peremptory by defend-
ant 208
number of peremptory by Com-
monwealth 204
for cause may be by either party, 205
may be general or particular . . 206
grounds of general ....... 207
8XOTION.
Jiry — Continued.
Challenge, particular, may be for
actual or implied bias .... 208
exemption from service not
ground of 211
court to try 212
juror may be examined on ... . 218
other witnesses may be examined
on 214
Commonwealth to challenge first, 215
order in which must be made . . 216
clerk to draw jury of twelve . . . 191
Court may appoint person other
than sheriff to summons . . 198
to try challenge 212
may excuse sick juror 250
always open while jury deliberat-
ing .^ 258
Defendant, jury impaneled to fix
punishment if he refuse to
plead 171
may demand jury in police, when, 819
may demand jury in justices*
court, when 881
challenge of one is challenge of all, 198
number of peremptory challenges
allowed to 203
statement of defense to jury by . 2'J2
Disagreement cause for discharge . 252
Discharge of, allowed if juror take
sick 251
without verdict, cause to be again
tried 252
for what causes allowed generally, 251
final adjournment discharges . . 264
Duty and oath of officer in charge
of 246
Exemption from service not ground
of challenge 211
Final adjournment discharges jury, 254
Grounds of challenge to panel . . . 199
of general challenge 207
How jurors selected and summoned, 190
panel to be filled 192
How to be provided for 247
informed as to law or evidence
after retiring . 249
Implied bias defined 210
Indictment to be read to . . . . 219
In what cases to be kept together . 244
justices' court, how summoned . 882
Issues of fact to be tried by . . . . 180
Juror may be examined on chal-
lenge 213
Justices' court, how summoned in . 882
when may be demanded in . . . 831
Kept together, when 244
Lodging for . 247
May be impaneled to fix punishment, 171
return verdict as to all or any of
several defendants 266
Mileage of 196
Oath of, to try issue 217
if there be no issue 218
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776
INDEX TO CRIMINAL CODE.
8B0T10N.
Jary— Continued.
Panel, challenge to 197
Papers, eto., pat in evidence to be
taken by 248
Pay and mileage of jurors .... 196
Penalty to be fixed by, unless fixed
bylaw 268
Place, view of where material fact
occurred 236
how view conducted 286
Polling the jury 267
Proceedings when challenge to panel
sustained 200
Selecting of 190, 191
Sick juror may be excused .... 260
may be permitted to separate
from 251
Special bailiff to summons 198
Summoning of 190
special bailiff to summons ... 198
adjoining county from 194
To withdraw during argument on
instructions 226
take papers put in evidence . . . 248
Verdict as to any or all of several
defendants 266
View of place where material fact
occurred by 286
how conducted 286
When defendant may demand in
police courts 819
defendant may demand injustices*
court .... 881
SXOTtOV.
Jiisticei* courts—
Bail for good behavior in . . . 825
Change of venue in, page 574.
Defendant may be tried at once by,
or case continued 828
may be committed by» or dis-
charged on bail 824
Jurisdiction of 18, 18
see further, page 560.
Jury in, how summoned 882
when may be demanded ..... 881
Limitation of power to issue war-
rant 827
May try defendant at once or con-
tinue 328
May commit defendant or discharge
him 824
Nature and form of .summons and
warrant 828
Pleadings may be oral in 880
Provisionsof Title VI. apply to . . 888
Removal of prosecution to from cir-
cuit court 16
Summons and warrant, nature and
form of 328
to issue on knowledge or informa-
tion of public offense .... 826
Warrant and summons, nature and
form of 328
to issue on knowledge or informa-
tion of public offense .... 826
When they shall require bail or bond
for good behavior 826
Justices of the peace—
See JusTicBs* Courts.
Breach of the peace, trial of by . . 18
Change of venue from, page 6t4.
Duty of, to suppress riot 876
Examining court by, see amend-
ment to 71
Habeas corpus, writ of, when may
be issued by 899
How single justice to proceed in
felony 71
Is a magistrate and may issue war-
rants of arrest 26
Jurisdiction of 13
extends over the county 18
see further as to jurisdiction,
page 650.
May call out military to suppress
riot 879
Military may be called out by, to
suppress riot 879
Offenses exclusively within their
jurisdiction not indictable . 9
such offenses to be prosecuted by
summons or warrant .... 10
Warrant of arrest, when to be is-
sued by 81
When they may issue writ of habeas
corpus 899
Kidupins—
County to be prosecuted in ... . 23
Tried where defendant first indicted
or arrested 24
Larceny—
Of money, what sufficient descrip-
tion of 185
Offenses that may be Joined with
in indictment 127 .
Uw-
All questions of, to be decided by
the court 286
Court to instruct Jury as to law of
the case 226
How issue of arises 181
jury informed as to, after they re-
tire 249
Issues of, to be tried by court ... 180
Jury, how informed as to after re-
tirement 249
Libel-
Jurisdiction of, amendment to . . 21
What sufficient charge of, in indict-
ment 182
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INDEX TO CBIMINAL CODS.
777
Louisville City CMTt—
Law8 relating to, not changed by
Code
822
Magistrate-
Arrest, when he shall issue war-
rant of 81
warrant of, may be issaed by . . 26
may order orally, if oflfense com-
mitted in his presence ... 88
Bail, if offense committed in an-
other county 46
bond in such case to be trans-
mitted by mail 47
on'examination of charge to com-
mit defendant or hold him to, 49
to fix amount to be deposited in
lieu of 66
if offense proven defendant to be
committed or admitted to . . 66
amount of, fixed in order of com-
mitment 67
must take, if sufficient be offered, 67
committing, may take bail after
commitment 68
Bond to keep the peace or for good
behavior taken by 884
to be returned to clerk of circuit
court 886
Change of venue from, page 674.
County attorney to be notified in
felonies 61
Committing, may take bail after
commitment 68
Defendant, if offense committed in
another county to be sent
there 46
if offense committed in county to
be tried at once 48
on examination of charge, to be
committed or held to bail . . 49
may object to magistrate presid-
ing 62
time for appearance of, may be
extended 69
spectators may be excluded ... 68
to be discharged if offense not
proven 66
to be held to bail or committed if
charge proven 66
to be held and tried if a different
offense proven 66
Deposit, to fix amount to be de-
posited in lieu of bail .... 66
to make entry of 66
how amount to be deposited de-
termined 60
Drunken and disorderly persons,
how disposed of 898
Entry of deposit in lieu of bail to
be made by 66
•Bonov.
Maglftimte— Cbnfmu^
Examining court, may be held by • 71
to retire from on affidavit of de-
fendant 62
may be adjourned not exceeding
two days 54
See ExAHiKiNo Court.
Examination of witnesses to ascer-
tain offender 82
of witnesses to ascertain if offense
committed 82
Felony in to notify county attorney, 61
see amendment to 71
penalty for issuing warrant with-
out affidavit 81
How to proceed when insane person
brought before them .... 897
to dispose of drunken or disorderly
persons 898
amount to be deposited in lieu of
bail determined 60
May issue warrants of arrest ... 26
summon and examine witnesses
to ascertain if offense com-
mitted 82
order arrest orally if offense com-
mitted in his presence ... 88
adjourn examination not exceed-
ing two days 64
extend time for defendant's ap-
pearance 69
exclude spectators on request
of defendant 68
Minutes of examining trial to be de-
livered to clerk ....... 70
substance of testimony and names
of witnesses to be entered on, 64
Offense not proven, defendant to be
discharged 66
charged proven to hold defendant
for trial 66
if different offense proven, to hold
and try him for it 66
Oral order to arrest • 88
Penalty for issuing warrant in felony
without affidavit amendment
to 81
Riots and unlawful assemblies to
be suppressed by 875
punishment for failing to sup-
press 878
Shall suppress riots and unlawTul
assemblies 876
recognize witnesses on holding de-
fendant to answer 69
Subpoenas for witnesses to be issued
by 61
Warrant of arrest may be issued by, 26
when to be issued by 26
not to issue for felony until affida-
vit filed 81
When he shall issue peace warrant, 888
may require security to keep the
peace 884
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778
INDEX TO OBUflNAL CODE.
Magistrate— Continued,
When he shall issue warrant (^
arrest 81
Who are magistrates 26
Witnesses may be ezamiiied by, lo
ascertain person guilty <» of-
fense 82
subpoenas to be issued for ... . %\
to be separated in examining
court • 62
names and residences of U> be en*
tered on minutes 64
to be recognized 69
Mafistrates' OHiitt—
Removal of prosecutions lo • • • • 16
See Justices' Coubts*
Mail^
Bond for appearance in another
county sent by 47
Warrant or bail-bond by, to another
county 84
Malfeasance is •ffflce—
Form of judgment in, page 674.
Nature of Judgment on conviction
of 292
Mareiial—
Peace officer may execute ¥raiTants, 26
Master cemmissioaer^
Not to be taken as bail 80
Materiality—
See Allegation.
Of allegation in indictment .... 127
Mayor —
Duty of, to suppress riots and un-
lawful assemblies 875
Magistrate, and may issue warrants, 26
Military, may call out to suppress
riots and unlawful assemblies, 879
Mayors* courts-
Are police courts • • • 821
Milease--
Allowed to Jurors from adjoining
county 195
to non-resident witness, see act • 151
Military-
Must obey civil officers 880
Officer may call out when 871
Military— Ccmixnued,
Under what circomstanoes may fire
on rioters 881
When governor shall send from one
county to another 874
and by whom may be called out
to suppress riot 879
Military co«ris—
Offenses In, not prosecuted loff in-
dictment 9
MInstes of examlslog cosrt—
Statements in, not competent evi-
dence 64
To contain entry of deposit in lien
of bail 66
testimony and names and residence
of witnesses 64
be delivered to cleric of court . . 70
Mlsdeaeasor—
Amount of bail to be indorsed on
warrant for 28
Appeal by defendant 847
time of appealing 848
bond to suspend judgment ... 849
appeal by Com nK>n wealth .... 860
summons not necessary 851
judgment of acquittal when not
reversed 862
attorney fee, taxed on affirmance, 854
damages on affirmance 85&
Bail during trial for 184
Commonwealth may appeal .... 350
County judge may try, page 898.
appeal from judgment, page 898.
Court of Appeals has appellate juris-
diction of 347
Damages on affirmance 356
Defendant arrested for may give
bail 364
charged with may give bail dur-
ing adjournment 55
need not be present during trial
for 184
may remain on bail during trial
for 184
Definition of 7
Failure to assist officer when re-
quired is 373
to assist peace officer when sum-
moned Is 41
How appeal to be taken in . . 848, 864
Judgment to include costs 291
When to be rendered 283
Jury permitted to separate daring
trial 244
Trial by countv Judge, page 898.
in absence of accused 184
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INDSX TO QfLmiSAL OODfi.
77»
Misioiiider—
Of offenses faow corrected 168
Moaey—
See Deposit in Lieu of Bail.
Description in indictment for lar-
ceny or embezzlement of . . 186
Name —
Error in indictment as to name of
defendant may be corrected . 125
Form of order for correction of,
page 672.
Newtrkl—
Arrest of Judgment . . • . 275 to 280
Defined 269
Effect of granting 270
Grounds for 271
must be in writing and filed witli
motion 274
juror may be examined to show
verdict was by lot 272
Motion for, when must be made . . 278
Not fuilty—
Effect of plea of 175
Pleaded with or without plea of
former conviction or acquit-
tal 172
Notice—
Ck>unty attorney to, of examining
trial 61
Given Commonwealth's attorney of
application for return of de-
posit . 88
Form of notice to (Commonwealth's
attorney, page 659.
Nnisaoce—
Execution on judgment for abate-
ment 808
Oath-
Foreman of grand jury may admin-
ister 106
Jury to try issue 217
Jury, if there be no issue 218
Ofl8cer in charge of jury 245
Officer taking bail-bond may admin-
ister to bail 77
Person conducting jury to view
place 286
Taken by senators, on trial of im-
peachment 488
Obiection—
To magistrate, presiding as exam-
ining court, how made . . 52. 58
officer presiding at trial of writ
of habeas corpus 418
•BOTIOH.
OMaiaiag BMaey ky false pnteaie—
May be joined with larceny In in-
dictment 127
Offease—
See Public Offense.
Officer-
See Peace Ofpicbb.
Aid to assist in arresting 41
penalty for refusing 41
Execution ol death warrant, who
may suspend 295
Governor may render aid 874
How objection made to, presiding
&tiT\eAot habciiscorptis . .' . 418
Interested or related to parties, not
to preside at trial of habeas
corpus 415
Penalty on officer refusing to issue
writ of habeas corpus .... 401
Punishment of, for neglecting to
suppress riot 878
Resistance to, how overcome ... 871
To what officer writ of habeas corpus
shall be returned 416
What officers may suspend execu-
tion of death sentence . . . 295
Order-
Commitment of, requisites of
form of, page 661.
how executed
67
67
Owner—
When allegation as to owner of
property stolen not material . 128
Panel-
Grounds of challenge to 199
How filled 192
Proceedings if challenge to sus-
tained 200
Papers-
Court may compel production of in
evidence 152
of Appeals may compel produc-
tion of on trial of clerk . . . 445
clerk of, to issue process for pro-
duction of on such trial ... 445
Examining trial in, to be delivered
to clerk of court 70
Habeas corpus case in, to be returned
to clerk 421
Senate may coerce production of in
impeachment case 486
clerk of, to issue process for pro-
duction of in such case .... 485
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780
INDBX TO CRIMINAL CODE.
Pauiag conoterfeit money—
And having it in possession may be
joined in indictment .... 127
Peace—
See Security to Kbep the
Peace.
Jurisdiction of Justices in breach
of 18
Peace officers-
Arrest und^r warrant, how to pro-
ceed on 45
without warrant, how to proceed, 46
may t>reak doors to make .... 40
may summons assistance to make, 41
not to use unnecessary force in
making . 43
Assistance summoned by, to arrest . 41
Bail, what peace officers may take . 84
to receive deposit in lieu of . . . 55
to return deposit to defendant if
he appear 56
responsible on his bond for money
deposited 57
Bench warrant, other than sheriff
executing, how to proceed . . 144
Deposit in lieu of bail to be received
by 56
to be returned to defendant if he
appear 56
to be paid to trustee of jury fund
when 56
responsible on his bond for ... 57
Disorderly person arrested by . . . 395
Doors may be broken to arrest ... 40
Duty and oath of officer in charge
of jury 245
and oath of officer conducting
jury to view place 286
to suppress riots and unlawful
assemblies 875
to arrest insane, drunken or disor-
derly persons 894, 895
Drunken and disorderly persons,
duty of to arrest .... 894, 895
How to proceed on arrest under
warrant 45
to proceed on arrest without war-
rant 46
he may suppress resistance to the
execution of process .... 871
to proceed on arresting drunken,
insane or disorderly person . 896
Insane person may be arrested by . 894
Jury, duty and oath of, when con-
ducting to view place .... 286
duty and oath of officer in charge
of 245
Making arrest must notify person of
his intention and offense
charged 89
SBOnOK
Peace otHcen^ContimucL
May break doors to make arrest . . 40
summons assistance 41
pursue prisoner who escapes any-
where in the State 44
eTiecuie writ o( habeas corjma , . • 406
execute warrant of arrest .... 26
Must show warrant of arrest, if re-
quired 89
Notice to county attorney in exam-
ination for felony to be served
by 51
Prisoner who escapes ma}' be pur-
sued by, anywhere in State . 44
Punishment of for failure to sup-
press riot or unlawful assem-
blies 875
Responsible on his bond for money
deposited in lieu of bail ... 67
Shall return money deposited, if de-
fendant appear 56
Unlawful assemblies and riots, duty
of to suppress 875
Warrant of arrest may be executed
by 26
must be shown if required ... 89
return to be made on, by ... . 88
how to proceed on arrest under . 45
how to proceed on arrest without, 46
What peace officers may take bail . 84
When they may make an arrest . . 86
Who are 26
Writ of habeas corpus may be exe-
cuted by 406
to make return of service on . 408
Peace warraat —
See Security to Keep the
Peace ob for Good Be-
havior.
Penal actios—
Appeals in, regulated by Civil Code, 855
Offenses punishable by fine prose-
cuted by 11
Proceedings regulated by Civil
Code 11
Penalty—
Exf^cution to issue on 801
bail against 802
For refusing obedience to writ of
habeas corpus 409
refusal of officer to issue writ of
habeas corpus 401
issuing warrant for arrest in felony
without affidavit 81
Imprisonment, execution of judg-
ment 298
Judgment must fix ....••. . 284
Jury to fix, when • • 258
Must be affixed in judgment . . . 284
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INDEX TO CBUIINAL CODE.
781
SBOTIOV.
PeiiteBtUiry—
Defendant, if in penitentiary, shall
remain pending appeal . . . 843
but shall be removed upon re-
versal 844
if again convicted, shall have
credit for former confine-
ment 846
Offenses punishable by imprison-
ment in are felonies 6
Perjnry—
Grand juror responsible for ... . 114
Sufficient, indictment for 184
Persoo—
See Privatk Person.
Allegation as to person injured is
not material, when 128
Released under habeas corpus^ not to
be imprisoned for same cause,
except 422
Petit Jnry—
Issues of fact tried by 180
Justices* court in . 881, 882
Police court in . . '. 819
Selecting 190, 191, 192
Summoning by sheriff 192
person appointed 198
from adjoining county . . . 194, 196
Pleas-
See Pleading.
Allowed 172
Form of entrv of pleas on record,
page 671, and 164
Guilty, must be by defendant in
person 178
may be withdrawn before judg-
ment 174
Of not guilty, effect of 176
insanity, verdict and proceedings
on 268
former acquittal or conviction
deemed controverted without
reply 179
To indictment are guilty, not guilty
and former conviction or ac-
quittal 172
Pleading—
See Pleas.
Acquittal, when bar 176
plea of former 164, 172
Allowed 162
Conviction, plea of former . . 164, 172
SECTION.
VkBdXmt^Coniintud,
Defendant, put on trial, must move
to set aside indictment or
plead 167
pleadings on behalf of allowed . . 162
entered on the record, and may be
oral 168
Demurrer, form of 164
want of jurisdiction 166
when proper plea 166
proceedings if sustained .... 166
overruled may plead 171
Form of entry on record 164
Former acquittal or conviction bar, 179
Judgment, how pleaded 181
May be oral in police or justices'
courts 318, 880
None required of Commonwealth on
summons on forfeited bail . . 94
What necessary in pleading judg-
ment or other proceeding . . 181
pleadings on behalf of defendant
allowed ,..•.. 162
When former acquittal or convic-
tion bar 176
Poike and city coarts—
Cases may be transferred to by cir-
cuit court 16
Change of venue in, page 674.
Clerk to issue summons upon infor-
mation 810
to issue subpcenas 816
provisions as to, apply to judge
acting as clerk 820
Continuance may be granted by . . 816
Court may grant continuances . . . 816
Defendant to be tried or held to
bail 809
Indictment not necessary in, when, 806
Issues of law and fact, how tried . 819
Insane, drunken or disorderly per-
sons arrested to be taken be-
fore 896
Judge of is a magistrate 26
may fix terms of court . - . . 808
may issue warrant of arrest . . . 812
may issue writ of habeas corpus . 899
may require security to keep the
peace or for good behavior . . 886
provisions as to clerk apply to,
when acting as clerk .... 820
Jurisdiction of, offenses 9
offenses may be prosecuted by
summons or warrant .... 10
of generally 18
of local 19
Laws as to Louisville City Court not
changed by Code 822
Local jurisdiction of 19
Louisville City Court 822
Digitized by VjOOQiC
782
INDEX TO CRnnNAL CODE.
•Bonov.
Poike and cltjr ctmrtM ^Continued.
Mhy impanel grand jury 807
try defendant at once or hold to
bail . . . 809
requii^ security to keep the peace
or for good behavior .... 885
Offenses exclusively within their
jurisdiction not indictable . 9
Pleadings may be oral unless indict-
ment necessary 818
Prosecutions in, when stand for
trial 818
Provisions of Title VI. so far appli-
cable apply to 817
as to clerk apply to judge acting
as clerk 820
Security to keep the peace or for
good behavior required by . . 885
Subpoenas to be issued by clerk of . 816
Summons, offenses not indictable
prosecuted by warrant ... 10
clerk to issue upon information
on oath 810
Summons'in, how executed .... 814
nature of 811
Time prosecutions stand for trial . 818
Transfer of cases from circuit court
to 15
Warrant, offenses not indictable may
be prosecuted by 10
judge may issue 812
What courts are police courts ... 821
Witnesses* attendance, how secured, 815
PoliceoMa—
Not to receive deposit in lieu of bail, 55
Peace officer, and may execute war-
rants 26
Polliog the Jury—
Either partv mav have jury polled, 267
What it coiisists'of 267
PostpooeoMiit of trial —
Causes for 188, 189
Preffiaiicy —
Cause for suspending execution of
judgment of death ..... 296
Pre|adicial errors —
Substantial are 840
Presomptiofls —
Of law and fact judicially noticed,
need not be alleged 130
Preventlofl of poblk ofTense —
See Security to Keep the Peace.
Nature of proceedings to prevent
commission of offenses ... 12
•■cnov.
Preveatioa of pnUlc otitnu— Continued.
Suppression oi rioU and remManee
to (nufunify —
Duty of officers in cases of riots and
unlawful assemblies 875
Governor may send military aid . . 874
How officer may suppress resist-
ance to execution of process, 871
Military must obey civil officers . . 880
when and by whom they may be
ordered out 879
under what circumstances they
may fire on mob 881
Officer may arrest resisters and their
aiders and abettors 871
must also report them to court ■ 872
penalty for refusing to assist
officer 878
duty of officer in case of riots and
unlawful assemblies 876
rioters not dispersing to be ar-
rested 376
Punishment of persons failing to aid
officer 377
of officer neglecting to suppress
riot 878
Riots, duty of officer to sup-
press 875. 878
Rioters not dispersing on command
to be arrested 376
Under what circumstances military
may fire on mob 881
When and by whom military may
be ordered out 879
Arred ofinsane^ drunken or dia-
orderly persons —
Magistrate to dispose of insane per-
son brought before him . . . 897
to dispose of drunken or disorder-
ly person 898
Peace officer to arrest insane or
drunken persons 894
also disorderly persons 895
duty of, upon making such arrest, 896
PHaofler—
Escaping may be pursued and re-
captured 44
Removal from jail or custody of
public officer 426
Prisoos—
Grand jury to inquire into condi-
tion and management of . . . 102
Private persoa —
Arrest by 86, 87
Has same powers as sheriff in exe-
cuting writ of habeas corpus . 427
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INDBX TO CRIMINAL CODE.
788
8«CT10X.
Friyate ptnon—Coniinued,
May be appointed to summon Jurors, 198
be appointed to serve writ of
haheas corpus 406
Must make return of service . . . . 408
Process—
Bench warrant, form of 142
indorsement to be made on as to
bail 148
how officer other than sheriff exe-
cuting shall proceed .... 144
court may order in any case . . . 149
if offense not bailable may issue, 145
process of arrest is 139
Court to order on finding indict-
ment 141
muy order a bench warrant in any
case 149
Indorsement on bench warrant as to
bail 148
Of arrest, is a bench warrant ... 189
On indictment, of what it consists . 188
Summons on indictment, form of . 146
how issued and served 147
only to issue in misdemeanors • . 148
PfoMbitiofi-^
Circuit court may restrain inferior
courts by writ of 24
Prosecotioo—
Barred by former acquittal or con-
viction 176
by i>enal action 11
How to be docketed 186
Prosecutions by summons or war-
rant in inferior courts ... 10
When they stand for trial 187
dismissal of indictment not bar . 178
Prosecntor—
Failing to appear in peace warrant
defendant to be discharged . 889
Impeachment liable for costs if de-
fendant acquitted 441
Information against clerk, liable for
costs 448
Necessary upon information against
a clerk 448
not necessary when 449
Required to secure costs 447
Pnblic offense-
See Prevention of Public Of-
fense.
Acquittal or conviction bars further
prosecution 177
But one to be charg^ in indict-
ment except 126
ssonov.
Poblic offeise— Cbn^tntied
Committed in part in different ooan-
ties may be prosecuted in
either 21
Conviction may be of offense
charged, although higher de-
gree proven 266
Degrees of the same offense, what
are 268
what offenses are included in one
charge 264
Definition of 4
Dismissal of indictment will not
bar 178
Divided into felonies and misde-
meanors 5
Duty of grand juror to disclose of-
fenses 104
Felonies and misdemeanors .... 5
Grand jury to inquire into and in-
dict J02
Indictable offenses 9
Indictment gives jurisdiction to cir-
cuit court 14
Penal action may be prosecuted by, 11
Person charged with may be im-
mediately arrested 8
Prevention of 12
Proceedings for prevention of . . . 12
if offense appear to have been
committed out of jurisdiction
of court 280
if person in whose behalf writ of
habeas corpus is issued, guilty
of .428
Prosecution by penal action • . • . 11
summons or warrant 10
What offenses may be prosecuted
by summons or warrant ... 10
maybe prosecuted by penal ac-
tion 11
are degrees of the same offense . 268
offenses are included in one
charged 264
may be joined In an indictment . 127
Quashing indictment —
Proceedings upon quashing .... 288
When courts should quash .... 283
Reasonable doabt—
As to grade offense, conviction
should be of lower grade . . 239
Of guilt, entitles defendant to ac-
quittal 238
Receiviiis stolen property-
May be joined with larceny in in-
dictment 127
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784
INDEX TO CRIMINAL CODE.
Bxonov.
Recosaiiaace—
Bail, form of, recognizance of,
page 658.
Of witnesses by examining court on
holding defendant for trial . 69
Security to keep tlie peace may be
by 898
Witnesses, form of recognizance of,
page 656.
Records-
Form of entry of pleadings on . . 164
Of county, subject to in8{)ection of
grand Jury 108
Pleadings must be entered of record, 168
Religioas assocUtioa —
Writ of habetis corpus may be issued
against • 424
Removal of clerks from office-
Causes of removal 442
Continuances 446
Costs against unsuccessful party . 448
security for 447
Court of Appeals has jurisdiction
of 18
may remove upon information . 442
what the information must state, 448
may appoint a clerk pending trial
to act in trial 450
Evidence, production of, how co-
erced 445
Information by attorney-general . 448
what information must state . . 448
Prosecutor, in what cases necessary, 448
in what cases not necessary . . . 449
Summons, how issued and served . 444
Trial, time of 444
Repeal-
Code repeals all laws within its pur*
view 8
Rieplevy—
Fii^e may be replevied 805
Reply-
No reply necessary 179
Resistance to execution of process —
How punished 871, 872
Return—
Habeas corpus^ of writ of 408
what defendant must state in his
return 410
to what officer writ of shall be re-
turned 416
sscnov.
Retnm — Coniimied,
Habeas carpus, return of papers used
on trial of 421
when time for return of, nuiy be
changed 408
Warrant of arrest, made by officer
executing it ...... . 88
return to a different county by
mail 84
RMs aad nolawfnl assenibilefl—
Duty of certain officers to suppress, 875
Justice of the peace, jurisdiction of
in 18
Military, when may be called out to
suppress 879
must ot>ey civil officers 880
may fire on rioters, when .... 881
Officers punishable for neglecting to
suppress 878
duty of, to suppress 875
persons failing to aid, to be pun-
ished 877
Persons failing to aid officer to be
punished 877
Rioters not dispersing shall be ar-
rested 876
when military may fire on ... . 881
when and by whom military may
t>e called out • 879
River-
Bounding two counties, jurisdiction
over 20
Robbery-
Offenses that may be joined with in
indictment 127
R^ots—
Jurisdiction of justices' courts in . . 18
Sanity-
Trial of sanity of defendant .... 156
Verdict and proceedings on plea of
insanity 268
Security to keep tlie peace or for sood
behavior—
Bond of defendant, what are
breaches of 891
proceedings upon breach of . . . 892
Form of, pages 661, 662.
may be by recognizance 898
breaches of, what are 891
proceedings when broken .... 892
return of to circuit court .... 886
grounds for requiring 882
Causes for which security may be
required 882
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IH0BX TO CRUmrAI. CODE.
785
8X0TIOV.
Secflrity to keep the peace or for good
Commitment for failure to give,
884, 887
who may take security after . . 888
form of order of, page 662.
Defendant discharged if prosecutor
fail to appear 889
discharged if no grounds for ap-
prehension appear 890
Form of bonds to keep the peace,
pages 661, 662.
of order of commitment, upon
failure to give, page 662.
Justices' court may require security
pending adjournment .... 825
Magistrate may require security of
disorderly persons 898
Peace warrant, how arrest may be
ordered on 888
Proceedings upon breach of bond . 892
Security may be by recognizance . 892
• for what causes may be required, 882
justices' court may require pend-
ing adjournment 826
commitment for failure to give,
884, 887
who may take aftei[ commitment, 888
magistrate may require of dis-
orderly prson 898
time for which may be required . 886
Time for which security may be re-
quired 885
Trial before magistrate when he
should require bond .... 884
and requiring bond in circuit
court 887
Senate of Keotocky—
Has jurisdiction of impeachments, 18
Jurisdiction of extends throughout
Stote 17
Shall appoint a day for hearing im-
peachment 484
compel obedience to process for
evidence 485, 486
determine what absence prevents
senator from voting 489
Seaator—
Oath on trial of impeachment . . . 488
What absence will prevent, from
voting on impeachment . . . 489
Settiag aside tadictmeat—
Form of order setting aside, and
resubmitting to jury, page 672.
Grounds on which it may be done . 158
Motion to set aside overruled, de-
fendant must plead 161
(60)
Settiag aside iadictawat—am^intced
Proceedings on setting aside .... 159
defendant discharged unless next
grand jury indict 160
Slieriff—
See Peace Offices.
Bail of person arrested may be
taken by 28, 88
taking bail shall fix time for de-
fendant's appearance .... 29
bond shall be delivered by to
proper officer 82
may administer oath to bail ... 77
sheriff or deputy not to be taken
as 80
in what cases sheriff or his deputy
may take 88
defendant arrested on bench war-
rant shall be taken before, to
give 144
Court may appoint person to sum-
mon jurors 198
Defendant, sheriff taking bail of,
shall fix time of appearance
of 29
arrested on bench warrant shall
be taken before sheriff to
give 144
Judgment, to make written return
of execution of 800
of imprisonment, how to execute . 298
of death, how and when to exe-
cute 294
in what cases he may suspend
execution of 296
Jurors, shall summon to fill panel . 192
court may appoint another per-
son to summon 198
may be summoned from adjoin^
ing county 196
Jury, to make provisions for while
kept together 247
May take bail of person arrested . . 28
summon jurors from adjoining
county 196
Military, may be called out by,
when 871, 879
Peace officer, and may execute war-
rant 26
Powers of while conveying prisoner
to penitentiary 298
Sheriff or deputy not to be taken as
bail 80
In what cases he or deputy may
take bail 28, 88
defendant arrested on bench war-
rant taken before to give
bail 144
may administer oath to bail ... 77
taking bail, to fix time for de-
fendant's appearance .... 29
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786
HTDBX TO CBnmiAL OODB.
Sberiff^CbM^tfitMrf.
Sheriff may take bail of person
arrested for misdemeanor . . 28
shall deliver bond to proper offi-
cer 82
Warrant may be executed by . . . 20
Sickflcsf^
Sffeot of sickness of Juior . .260, 261
Social verdict-
Defined 259, 260
General or special •••••••.. 266
SKctator—
May be excluded from examining
court 68
Stetoaentof case —
Commonwealth for 220
Defendant for 222
Slatatory offenses—
Indictment need not pursue words
of statute 186
Snbofiuitiofl of perfnry—
What sufficient in indictment for . 184
SnbfMHia-r-
Olerk of trial court to issue on re-
quest of either party .... 150
to issue for witnesses before
grand jury 105
of city or police court to issue. . 816
of Senate shall issue upon trial of
impeachment 485
of Court of Appeals shall issue
upon information against
clerks 446
Duces tecum may be issued 162
Forma of, pages 664, 665.
Justice to issue in his court .... 829
Magistrate may issue for examining
court 61
Officer granting or trying writ of
haheas corpus may issue . . . 414
SabpcDiia dnces tecon—
May be issued 162
Saamofls—
Bail-bond* to be issued on forfeiture
8SCT10V.
Saasofls — CbiUmuseL
Clerk police court to issue upon in-
formation on oath 810
nature and form of such sum-
mons 811
upon information against, how is-
sued and served 444
jFbrm of, page 662.
of on indictment 146
of on forfeiture of bail-bond ... 94
How to be executed 814
Impeachment on, how issued and
served 484
Indictment, form of summons on . 146
summons on 188
Issual and service of ....... 147
Justices* courts from 826
Misdemeanor cases in 148
Not necessary on appeal to Court of
Appeals 888, 861
Offenses that may be prosecuted by, 10
Only to be issued in misdemeanors, 148
Police courts from 810, 811
how executed . « 814
What offenses may be prosecuted
by 10
When justice shall issue 826
Ssmlsy—
Writ of habeas corpus may be issued
on 427
of
form of, on forfeiture, page 662.
94
Form* of, pages 675, 676.
Forms of, pages 675, 676.
On appeal in misdemeanors to sus-
pend execution 849
Required to suspend execution on
appeal to circuit court . . . 864
Snppressiofl of riots-
Provisions as to 875 to 880
Sarresder of dtfoidirt—
Bail may arrest defendant or have
him arrested 87
indorsement by bail on bond to se-
cure arrest, page 669.
may surrender defendant and dis-
charge bond 86
Jailer must give written acknowl-
edgment of surrender .... 86
form of acknowledgment, p. 669.
May be made by himself or bail,
and discharges bond .... 86
Money deposited to be returned
upon 88
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INDEX 10 CBIMINAL CODB.
m
TestiBOfly—
See EviDBjrcai— W1TNB88.
Defendant may testify, see act . .
Of accomplice not to convict un-
less corroborated
non-resident witness for Common-
wealth, how procured, see
act
Process for production of, in im-
peachment cases . • . . 286,
8XCnOK.
228
241
161
286
Tliiifr—
Allegations as to, in indictment . . 129
Appeals in Ctourt of Appeals, of
trial 85«, 86»
to circuit court, for taking ... 869
Clerks, of trial of, on information
against 444
Code, when took effect 1
Defendant's appearance, fixed by
sheriff taking bail-bond . . 29
appearance in examining court . 69
effect of defect in bail-bond as to
time for appearance .... 86
Habeas corpus, for return may be
changed 408
Indictment, when trial at term when
found • • 18^
Judgment, when should be ren-
dered .■ . . . 288
Security to keep the peace, time for
which may be required . . . 886
Trial, when prosecutions stand for, 187
when may be at same term as in-
dictment 186
in city or police courts 818
of appeals in Court of Appeals,
868, 869
of information, against clerk * . . 444
Trial-
See Trial by Jury.
Arraignment. See Arraignment.
Bail, before whom to be had if ex-
amining court refuse .... 426
City or police courts, time of, in . . 818
Clerks, time of trial of information
against 444
Continuance of regulated 189
Defendant, of sanity of 166
must be present during trial for
felony 188
may remain on bail until case sub-
mitted 188
need not be present during trial
for misdemeanor 184
on bail during trial for misde-
meanor 184
joint, in felony case entitled to
separate trials 287
BXOTXOlf.
TtitH^ChnUnuecL
Felony, defendant must be present
during trial for 188
defendant may remain on bail
until case submitted .... 188
Form of order for removal of de-
fendant to another county,
page 672.
of order if offense committed oat
of this State 281
Habeas corpus, under writ of ... . 420
Indictment,^when may be at same
term as found 186
Issues of law and fact, by whom
tried • - 180
Joint defendants in felony, separate
trials 287
Misdemeanor, defendant need not
be present during trial . . . 184
on bail during trial for 184
Offenses within jurisdiction of mag-
istrate, trial of 48
Postponement regulated 189
Proceedings if offense committed
out of jurisdiction of court . 280
form of order in such case,
page 672.
if offense committed out of State, 281
form of order in such case,
page 672.
i f h i gher degree of offense proven, 282
Prosecutions, when stand for trial, 187
may be postponed for cause ... 188
postponement regulated 189
Quarterly court, trial of misde-
meanors in, see act 26
Sanity, trial of 166
Time of, in city or police courts . . 818
of trial of information against
clerk 444
When trial may be at same term as
indictment 186
prosecutions stand for 187
See Arraignment,
Defertdant,
Evidence,
Jury,
Pleadings,
PMic Offefim.
Time.
VerdieL
View,
Trial by |«ry—
Adjournment of court during . . . 26ff
final discharges jury 264
Admonition to jury at adjourpment, 246
Argument, order of 227, 228
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788
INDEX TO OBIMINAL CODE.
ssonov.
Trial by lary-^OorUinuetL
Challenge to panel 197
Individual juror to 197
grounds of to panel 199
proceedings if sustained .... 200
peremptory 201
causes for 201, 207, 206
when to be made 202
number allowed defendant . . . 202
Commonwealth ....,.•. 204
general causes for 207
actual bias 209
implied bias 210
examination of jurors upon . 218, 214
exemption from service not
ground for 211
order in which to be made . 216, 216
court to hear and decide .... 212
Continuance of 189
Court open while jury deliberating, 268
Disagreement of jury proceedings . 261
Discharge of jury, causes for . . . «i61
Docketing cases for trial 186
Evidence, introduction of . . . 221, 228
rebutting 224
jury informed as to after retiring, 249
Indictment to be read 219
Instructions 226
jury to withdraw during agree-
ment on 226
Joint defendants, to have separate
trials 287
testimony of 284
Jury to be kept together 244
lodging and board for 247
oath of officer in charge of . . . 246
Misdemeanors of, page 898.
appeal in cases, page 898.
New trial defined 269
effect of 270
grounds for 271
Oath to jury 217, 218
Papers and things as evidence de-
livered to 248
Pay of jurors from adjoining county, 196
Plea to be stated 219
Reading of indictment to Jury . . . 219
Reasonable doubt, acquittal .... 288
as to degree, conviction of lower . 289
Retrial of case 262
Sickness of juror, jury dis-
charged 260, 261
Statement of case to 220, 222
Verdict, general or special . . .266, 268
special requisites of . . . 269 to 261
' by lot forbidden . 271
insanity, proceedings 268
polling jury 267
rendition of 266
ssonour.
Tmtee of Jary hu4^
After forfeiture, shall enter money
deposited to credit of jury
fund 97
Money may be deposited with him
in lieu of bail 89
shall give a certificate of deposit, 89
Money, form of certificate of de-
posit of, page 669.
liable for money deposited with
him 91
Shall give a certificate of deposit . . 89
form of certificate, page 669.
hold deposit subject to order of
court 91
To pay expenses of jury while kept
together, and deduct from
tbeir pay 247
Ufllawfal asseabUes—
Provision as to 876 to 880
Is cause of challenge to juror ... 207
May be shown by defendant, as
cause why judgment should
not be rendered 287
See Insanity,
Insane person.
Sanity.
VeoHe—
See Change of Ybkub.
Change of, see page 576.
Libel for 21
Prosecutions for 21
View-
How view conducted 286
Jury may have view of place at
which a material fact oc-
curred 286
Verdict-
Conviction may be of degree,
offense 262
Court always open to receive . . . 268
may discharge jury without,
when 261
General, defined 267
How rendered 266
Insanity, verdict and proceedings on, 268
Juror examined to show it was by
lot 272
Jury to fix penalty in, unless fixed
by law 268
may return verdict as to all or
any of several defendants . . 266
May be general or special 266
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INDKX TO OBmiNAL OODB.
789
sxonoH.
\et4M^0(mtinued, -
Polling Jury 267
Rendition of 266
Special defined 269
requisites of 260
not to be received unless sufficient
according to sec. 260 ... . 261
That verdict was by lot may be
shown by juror 272
Verdict may be general or special, 266
and proceedings on plea of in-
sanity 268
When court may discharge jury
without 261
Wamut of arrest—
See Bench Wabbaut — Pbaob
Wabbant.
Execution of 26
Farm of, pages 668, 664.
How officer arresting under shall
proceed 45
If to a different county, return of
may be by mail 84
Issualof 26
Judge of city or police court may
issue 812
Justices of the peace, when shall
issue 826, 827
Magistrate, when shall issue ... 81
penalty for issuing in felony with-
out affidavit 81
Misdemeanor for, to have amount
of bail indorsed on 28
Nature and form of warrant ... 26
Police courts from 812
Return to be made by officer exe-
cuting 88
what to state 88
Warrant must be shown to person
arrested if he require it . . . 89
What offenses may be prosecuted by, 10 '
Who may issue and execute ... 26
When justice of the peace shall
issue 826, 827
Wttoess—
Attendance of coerced according
to Civil Code 161
coerced by magistrate In examin-
ing trial 61
before grand jury .106
Attorney for Commonwealth may
examine before grand jury . 109
Clerk of Senate to issue process for
in impeachment cases .... 486
of Court of Appeals may issue
process for on trial of clerk . 446
Compensation need not be tendered
to 161
Court of Appeals may coerce at-
tendance of, on trial of clerk, 446
BxonoH.
Defendant may testify in his own
behalf 228
Depositions in what cases may be
taken . 168
Pees of, need not be tendered to . . 161
of non-resident witness summoned
by Commonwealth, see act . 161
Foreman of grand jury may admin-
ister oath to 106, 108
Grand juror may be compelled to
disclose testimony 118
Grand jury, names of examined be-
fore to be written on Indict-
ment 120
• attorney for Commonwealth may
examine 109
attendance before may be coerced, 106
foreman of may administer oath
to 106, 108
Habeas eorpits, officer trying may
coerce attendance 414
If two be required and not pro-
duced, court should instruct
to acquit 242
Joint defendants competent witness, 284
Juror may be examined on chal-
lenge of 214
Justices* courts In 829
Magistrate may summon to ascer-
tain person guilty of public
offense 82
may coerce attendance of in ex-
amining court 61
May be examined on challenge of
juror 214
May be summoned from any part of
State 161
Names and residence of, in examin-
ing court to be stated in the
minutes 64
No compensation need be tendered
to 161
Non-resident, fees to be paid to by
Commonwealth 161
Officer trying writ of habeas corpus
may compel attendance . • . 414
Police courts, from 816
Privileges and pay of, in impeach-
ment cases 487
Recognizance of, by examining
court 69
Senate may coerce attendance of . 426
clerk of, to issue process for In
impeachment case 486
Separation of on examining trial • • 62
Subpoena duces tecum for 162
Witnesses may be summoned from
any part of State 161
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T
790 JUDEX TO OBIMIHAL OODB.
sionov. BmanoM,
Words— Written lostmeits—
Construction of, used in indict- gee Eyii>bncb.
TT j.™^°V*' ' '^* '*l'#*ii' 'J ^^^ Clerk of Senate to issue process for
Used in statute need not be foUowed production of in impeacb-
in indictment 186 ^g^^. *^i ^ 435
w .. % Comparison of, see act Civil Code,
^"*— sec. 604.
See Habeas Cobpub. Court may compel the produotion
Of prohibition from circuit to in- of in evidence 162
ferior courts 25 Jury to take, when put in evidence, 248
What writ to issue upon indict- When misdescription of will not
ment 188 vitiate indictment 18ft
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