[SEC. 2. Relates to bonds for costs, and requires that they shall be executed by persons who become non-residents after they have instituted suits. See it, title Bonds for Costs, page 263, ante.] [SEC. 3. Relates to process in chancery, sued out in term time, re-enacted in 1810. See it, title Chancery, page 297, ante.] SEC. 4. Gives remedy by motion against attorney who has collected and failed to pay over money. See it, title Attorneys at Law, page 173, ante.] [SEC. 5. Relates to abatement and revivor of suits at law. Sce it, title Abatement and Revivor, page 86, ante.] SEC. 6. And be it further enacted, That whensoever any suit is depending in any of the courts of this commonwealth, founded on any writing, under the seal of the person to be charged therewith, it shall and may be lawful for the defendant or defendants therein, by a special plea, to impeach or go into the consideration of such bond, in the same manner as if the said writing had not been sealed; any law to the contrary notwithstanding, (d) [SEC. 7. Regulates scire facias to renew judgment against the defendant or against the bail. See it, title Scire Facias, post.] red before suit does not require an affidavit, for it is not in abatement but bar, and is no non est factum.-Suttles, &c, v. Whitlock, 4 Mon. 453. 10. If a debtor of a bank, on a note payable to an accommodation endorser, had deposited a blank for a renewal and it might fairly have been inferred to have been his understanding, that the blank paper to which his name was subscribed and left with the bank, was to be filled up in the endorsed form, and not in the form of a joint and several obligation payable directly to the bank, still if it were filled up in such form, as his liability, was the same, it was within the substance and meaning of the authority given the bank to fill up the blank, and he was liable. The plea of non est factum will not avail.Bank of Limestone v. Penick. 5 Mon. 25. Whether such a note or any other note without seal be deemed a deed or not, a material alteration without the consent of the payor or pay ors, as by adding another payor, will render it void.-Ibid. 11. In an action of debt, the defendant plead that "the supposed writing obligatory in the declaration mentioned and recited is not his deed." The declaration stated the date of the note and the day on which it was payable to be certain days the note produced bore the date that the declaration did, but the day on which it was Consideration of sealed instruments may be impeached and how. payable was different, the variance was fatal.— Rudd v. Thoms, 1 J. J. Mar. 300. 12. On a plea of non est factum the party may have oyer of the note or he may plead without. Although the declaration present an apparent inconsistency on its face, there is no more reason to suppose there was a mistake in it, than in the date of the note or obligation.-I. 13. When under the plea of non est factum, it appears in proof, that the apparent obligor in the instrument of writing did not deliver it as his deed, but believed that he was binding another, for whom he acted as agent, the writing is not in law the deed of such apparent obligor.Owings v. Grubbs' Adm3r, 6 J. J. Mar. 33. See Tribble v. Oldham, 5 J. J. Mar. 142. 14. Plea of non est factum to an injunction bond attested by the clerk, casts the onus probandi on the plaintiff, as in other cases, for if the attestation were an official act, and the evidence of the signing, it would not identify the individual sued, as the one who signed.-Robards v. Wolfe, 1 Dana, 155. 15. For a full discussion of the effect of absolute or conditional delivery as applicable to sealed and unsealed instruments. See the case of Taylor v. Craig, 2 J. J. Mar. 457. 16. See the act of 1812, post. (d) For judicial decisions on this act, See notes to the amendatory act of 1815, post. 1802. IN FORCE FROM ITS PASSAGE. AN ACT amending certain penal laws, and making further provisions for the regulation of the Penitentiary: Approved December 22, 1802.—3 Litt. 74. [SEC. 5.] "During the period of the confinement of any convict Convict may be sued during in the penitentiary, he shall be liable to be sued as if he never had his confinement been convicted, by a copy of the writ, warrant, or subpœna in chanin penitentiary, and how. cery, with a copy of the bill, being delivered to the keeper of the penitentiary, whose duty it shall be immediately to deliver the same to the prisoner; the suit shall be commenced in the county where he claimed his residence before he was tried for the offence; and a copy of the writ, warrant, or subpœna, shall also be left with his wife, or at his place of residence, if any he has; and in all other respects the same proceedings shall be had against his estate as against that of other persons." Where suit must be insti tuted, and proceedings there on. 1808. Where a river, IN FORCE FROM ITS PASSAGE. AN ACT giving concurrent jurisdiction to the County and Circuit Courts in certain cases: Approved January 27, 1808.-3 Litt. 439. Be it enacted by the General Assembly, That in all cases where water course, any part of a river, water, water course, highway, road or street, road, highway, shall be the boundary line between two counties, the circuit and or street, is the ties, the courts, thereof. boundary be- county courts, judges, justices, and all circuit and county officers, tween 2 coun- shall have concurrent jurisdiction in all cases over the whole extent judges &c. to of such parts of said river, water, water course, highway, road or have a concur- street, which shall be the boundary of such circuit or county, to all rent jurisdiction intents and purposes, as if such parts of said river, water course, highway, road or street, was within the body of such circuit or county: Provided, however, That no person or persons shall be twice punished for the same offence committed on any such parts of a river, water, water course, highway, road or street as aforesaid. (e) So much of any act or acts as comes within the purview of this act, shall be, and the same is hereby repealed. But persons not to be twice punished for the same offence. (e) For the act in relation to the boundary and jurisdiction of the counties on the Ohio river, See title BOUNDARY, page 286, ante. 1810. IN FORCE FROM FIRST OF JUNE. AN ACT to regulate proceedings in Suits at Law and in Chancery: Approved SEC. 1. Be it enacted by the General Assembly, That all laws authorizing or requiring a rule docket to be kept in the clerks' offices of the courts of this Commonwealth, or which requires the taking of rules, or steps in causes in clerks' offices on the rule days, or on the rule docket preparatory to the trial thereof, shall be and are hereby repealed. SEC. 2. It shall be the duty of the plaintiff or plaintiffs in all actions at common law, to file his, her or their declaration before the issuing of the original writ; but nevertheless, original writs and mesne process, may be sued out previous to filing the declaration, subject to the regulations hereinafter mentioned. All laws re quiring a rule docket repealed Declaration to be filed before issuing the writ. Proviso. Process re turnable to first SEC. 3. Original and mesne process against a defendant or defendants, in actions at common law, shall be returnable to the first day of term. day of the term next after they issue. [SEC. 4. Relates to the return of original and mesne process in chancery. See it, title Chancery, page 297, ante.] SEC. 5. If in any suit at common law, or in chancery, the process shall not be returned executed on the return day, the clerk may issue an alias plurics, or other process, without an order of the court therefor. Alias or plurics may issue without order of court. Time of ser serted in officer's return. If he fail to do so, return SEC. 6. It shall be the duty of every sheriff, or other officer, who executes original or mesne process on a defendant, to insert in vice to be inhis return the time of executing such process; but should he fail to return the time of executing such writ, it shall not impair the return of executed: but such sheriff or other officer shall be fined by the court to whom such process may be returnable, for such failure, a sum not exeeding ten dollars, on the motion of any person who may be party to the suit, such officer having had ten days notice of the time of making such motion; and such sheriff, or other officer, shall also be liable to the action of any person aggrieved by such failure. [SEC. 7. 9, 10, 11, Relate to Bail. See them, title Bail, page 193, ante.] SEC. 12. It shall be the duty of every clerk, within three weeks after the adjournment of his court, at each term, to make out his docket for the succeeding term, and therein docket all suits brought, which have not before been docketed: after which he shall, on issuing every original writ returnable to the succeeding term, enter the suit on the docket for that term. In making out his docket he not to be vitia ted, but officer liable to fine & action. When clerk to make out his docket,and how set suits for trial Summons to shall set as many suits for each day as in his opinion will best suit the business of the court. SEC. 13. He shall, on the application of either party, issue subissue for wit- pœnas for witnesses as soon as the cause is docketed, except in those nesses, & when cases in which no declaration is filed, or in which the writ hath not been issued ten days at least previous to the return day thereof. Actions at common law, when to stand for trial. ous to declara SEC. 14. All actions at common law shall stand for trial at the term to which the process is returned executed: (ƒ) Provided however, if it shall not appear by the return of the officer, that the process was executed ten days before the return day, the cause shall be continued until the next term, unless both parties consent to a trial. When suit, SEC. 15. If the suit be brought previous to the filing of the debrought previ- claration, the plaintiff or plaintiffs shall not have a right to demand tion, to be tried, a trial until the term succeeding the one in which the declaration &c. and when may be filed, * [and shall moreover pay all costs previous to the filing it.] In suits thus brought, the plaintiff or plaintiffs shall file a declaration on the calling of the cause; or, on failure the suit may for that cause be dismissed. declaration to be filed. Pleas, when to be filed. SEC. 16. The defendant or defendants shall file his, her or their plea or pleas, on or before the day to which the cause is docketed at the first term at which the cause stands for trial; (g) and on fail (f) The return of the sheriff to a writ, is that which authorizes the plaintiff to proceed to judgment against the defendant. Collateral or presumptive evidence of the execution of the writ will not be heard.—Trigg v. Shields, Har. 169. 2. Loss of the process, and sheriff's return may be supplied by oral proof made before the circuit court at a subsequent term, and there recorded, and thus a judgment upheld.-Gentry, &c. v. Hutchcraft, 7 Mon. 244. See Littell & Lane v. Cassaday, Har. 227; Lyle v. Bradford, 7 Mon. 113. 3. If in a joint action of trespass the suit be dismissed as to some of the defendants without process being executed on them or a return of no inhabitant, the plaintiff cannot proceed to trial against the other defendants without their consent, at the first term.—Prince v. Flynn, 2 Litt. 241. When no declaration is filed before the writ issues, it cannot be filed except in court, and no trial can be had regularly until the term after it has been filed. If the defendant appear and make no objection to the trial at the first term, it will be presumed that he waived the objection that he might have urged.-Johnson v. F. & M. Bank, 3 Mar. 404.. (g) When the defendant files a demurrer to the declaration and at the same time a plea, which is demurred to, the court should first decide on the demurrer to the declaration.Muldrow v. McClelland, 1 Litt. 4. 2. Where pleas are not good, it is more regular to file a demurrer to them and let them be adjudged bad on the demurrer, but if they are rejected on the application of the plaintiff, the court will not reverse the cause that a demurrer may be filed to bad pleas.—Depew, &c. v. Bank of Limestone, J. J. Mar. 380. 3. The matters of defence should be pleaded at once. As a matter of right the party cannot follow each decision of the court upon the insufficency of one plea, by the offer of another.— Having filed his defence, whether of one or more matters, every after plea, when offered is in the discretion of the court to receive or reject.Where another plea is presented it must be produced that the court may see it. The court may, when an ill plea is presented, refuse to permit it to be filed, or may compel the party to withdraw a demurrer which has been overruled, before he shall plead anew.-Walton v. Kindred's Adm'rs. 5 Mon. 392; 2 J. J. Mar. 267. ure, shall not thereafter be permitted to file any plea to the jurisdiction (h) of the court, nor in abatement, nor to file a special demurrer to the declaration. (i) SEC. 17. On the calling of a common law suit, if a plea or pleas have not been filed, the defendant or defendants shall plead, and the plaintiff or plaintiff's reply, and the defendant or defendants rejoin, and so on, until the issue or issues of law or fact be made up, and a trial shall thereupon be had, (j) and if either party fail thus to complete the issue or issues, the court may enter judgment (h) A plea to the jurisdiction offered after the day to which the cause is set for trial should not be received.-Todd v. Neaff, 4 Bibb, 191. 2. The statute of Anne required all dilatory pleas to be sworn to; hence pleas to the jurisdiction were included. This statute was never in force or re-enacted in Kentucky. The statute of this state requires all pleas "in abatement" to be supported by affidavit-Ingraham v. Arnold, 1 J. J. Mar. 407. (i) A demurrer in abatement for a variance between the writ and declaration, is within the spirit of the act limiting the time of filing dilatory pleas to the first day appointed for the trial of the cause, and therefore cannot aftewards be received to abate the writ.-Pendleton, &c. v. Bank of Kentucky, 1 Mon. 171. 2. An omission of the word "company," in the corporate name of the Bank of Kentucky, might, if taken in proper time, by plea, abate the writ; but after a declaration in the full name, the action cannot be abated by a general demurrer.-Ibid. 3. A plea which commences in bar, but contains matter in abatement, and concludes in abatement, is deemed a plea in bar, and final judgment will be rendered upon a demurrer to such plea. So where the plea commences in abatement, and contains matter only in abatement, but concludes in bar.-Boswells v. Blue, Litt. Sel. Cas. 270; Leathers' Repr's. v. McGlasson, 3 Mon. 223. 4. If defendant plead an ill plea in abatement, and plaintiff demur in bar, and the court give judgment in bar, the judgment will be reversed, and judgment in chief directed for plaintiff, and not for a discontinuance, unless the defendant on the return of the cause, ask leave to amend.Clark's Adm'r. v. Chiles, 4 Mar. 391. 5. The omission to state the individual names of a firm in a declaration, is at most only cause of special demurrer, or a matter to be pleaded in abatement.-Dorsey v. Lawrence, & Co. Har. 509. On failure, plea in abatement, &c. not to be allowed. Issues, when and how to be made up. 6. If issue be joined on a plea in abatement, and it be found against the defendant, judgment in chief is given for the plaintiff. But if the plaintiff demur to a plea in abatement, and the law be for him, the judgment is quod respondeat ouster.-Moore v. Morton, 1 Bibb, 234. 7. That the writ is directed to the coroner, and omits the value of the thing detained in detinue, are matters in abatement, but not in bar.— Daniel v. Prather & Sublet, 1 Bibb, 484. 8. That the declaration is against one not named in the alias, and on whom process is not served, is but matter of abatement.-Morgan's Ex'x. v. Morgan, 2 Bibb, 389. 9. After a plea to the merits, no motion to dismiss the suit, which has the effect of abatement, should be heard.-Wärd v. Trimble, 3 Mar. 311. 10. Where the defendant pleads matter in abatement, which from its nature is not the subvaried from the original, which is ground for ject of such a plea, as that the copy of a petition quashing the process, the plaintiff is not bound: to demur, but may treat it as a nullity.-Stapp and Massie v. Thomasson, 2 Litt. 214. 11. For judicial decisions on pleas in abatement for failure by non-residents to give security for costs, see title Bonds for Costs, page 262 ante. For the necessity and form of affidavit to such pleas, see notes to page 324 ante. (j) The plaintiff cannot demur and reply to a plea at the same time. A replication is a virtual withdrawal of a demurrer.-Patrick v. Conrad, &c. Litt. Sel. Cas. 509. 2. Either in law or equity, if a matter which shows that the plaintiff has no right to recover be pleaded by one of several defendants, it will equally avail the others, and the plaintiff cannot recover against them.-Hinton v. Fox, 3 Litt. 385. 3. The irregular practice of filing one demurrer to several pleas or replications, can only operate to the prejudice of the demurrant; for if one of the pleas is good, the demurrer should be overruled.-Cox, &c. v. Cooke, 1 J. J. Mar. 361. |