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operty not embraced by the lien may be subjected ; though, having rendered such judg-
ing he may and should refuse purely equitable relief, as, by ordering a sale of the prop-
ty, until the legal remedy has been exhausted or waived: consequently, I submit that
e forms on this subject in Bullitt's Codes, p. 204, and in the Code of 1854, p. 380, are
•oneous; the former in not providing against contemporaneous enforcements of both the
dgment in personam and the judgment in rem; and the latter in declaring that "exe-
tion may be issued for any part of the debt and costs adjudged to the plaintiff that may
nain unpaid by the sale of the mortgaged property ; or execution may be issued by the
lintiff's order for the whole of the debt and costs before any sale, in which case no sale
ill be made of the mortgaged property until the return of the execution : " for reasons
lilar to those upon which it was settled that the time allowed by a decree nisi for pay-
I money must expire during a term of court (see 2d paragraph of note (a), ante, p. 713),
I in view of decisions in 4 Litt., 192-93, and several similar cases, I submit that the
incellor, and not the plaintiff nor the clerk of the court, must determine whether or not
s plaintiff has exhausted or waived his legal remedy ; and that the chancellor should re-
ire information as to those facts so that he may determine how the order of sale should
made ; or, if made, how, if at all, it should be amended before being acted on.

Judgment for the conveyance and possession of land.
(Caption of action.)
This cause having been heard [<5rV., see Form a, ante, p. 712], it is adjudged by the

irt that, on or before the .... day of the defendant, ,

vey to the plaintiff, , the land described in the plaintiff's petition (a),

h general warranty of title thereto (6), and surrender to him possession thereof, and pay
rim his costs herein expended.

(a) This Form is substantially the same as one in the Code of 1854 (p. 381), except that
latter contains, after the word "petition," the words "lying in Franklin county, on

ison creek;" which, as they did not identify the land, were immaterial. tyBush, 474.

The court may require a commissioner to convey the land g 394) ; but whether he or
defendant be so required, it does not seem necessary, as it is in an order of sale (see

e (£), ante, p. 297), that the judgment should describe the land ; because a deed which

5 properly to describe it should be adjudged insufficient, if made by the defendant ; and,

lade by a commissioner, the court should refuse to approve it. J 398.

(o) See note(</), ante, p. 577.

[As an apology for not furnishing additional forms of judgments in equity, suggestions
o a number of which may be found in preceding forms of Petitions in Equity and notes
eto, I quote the following statement of the Commissioners of the Code of 1854 (p. 381).
'•The judgments in equitable actions are varied so much by the circumstances of each
: that it is considered useless to prepare forms, especially as those judgments are usually



* But it seems probable that a plaintiff suing in equity must conform to the rules of equity, in order to
in a personal judgment ; that, for instance, in an action for the purchase-money of land sold by exe-
ry contract, and to enforce a lien therefor, the plaintiff must aver his ability and willingness to convey
and according to the contract, in order to entitle himself either to a judgment in personam or in rem,
gh such averment would not be necessary in an action at law for the purchase-money. See note at
of page X13, ante.



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y\6 FORMS.

written out by the judge. Consequently we have only prepared two- forms of judgments
in equitable actions, and the commencement of a judgment where an answer has, bean filed.
It will be seen that even in a case of a judgment on the foreclosure of a mortgage* con-
siderable variations as to the time and place of sale, and manner and time of advertisement,
might be proper."]

164. Executions.^

I. Executions from circuit courts on judgments at law.

a. Writ df Fieri Farias.

[See Form "prescribed in G. S. t ch. 38, art. 1, } 2, and Act of 1893, & A. t IO °4-
Such Forms should conclude with —

Witness, , clerk of the circuit court, this . v . . . day of

1 Clerk,

by ,D.C]

b. Writ of Venditioni Exponas.

[See Form prescribed in G. S. f ch. 38, art. 5, and Act of 1893, & A * IO °9> **** C9Bm
elude with —

Witness, (&c. t as in last foregoing Form.)]

c Writs of Capias ad Satisfaciendum.

{See Form prescribed in G. S. t ch. 38, art. 3, and Act of 1893, £ A., 1008, which au-
thorize the writ upon "judgments for a trespass vietarmis, for seduction, or for slander,
written or verbal, or for malicious prosecution ; " and the defendant can not be discharged
as an insolvent debtor until ten days after he has given notice of his application, and fur-
nished to the plaintiff or his agent or attorney a copy of the schedule of the property he
intends to surrender. G. S., ch. 58, art. 1, { 1 ; Act of 1892, £ A. t 87.

But } 168 of the Code authorizes such writ, and adopts said form, " upon judgments in
actions in which the defendant has been arrested and held to bail ; " with a provision that
the defendant may be discharged as an insolvent debtor after reasonable notice of his appli-
cation, &c. Conclude with —

Witness, (&c. f as in Form a, supra.)]

d. Writ of Habere Facias Possessionum, with Fieri Facias for Damages, &*c.

A B., Plaintiff, "| Circuit Court.

against V Execution.

CD., Defendant. J

The Commonwealth of Kentucky to the sheriff of county :

We command you forthwith to take and deliver to A. B., the plaintiff in the above

styled action, a tract of land situate in county and bounded as follows : [describing it

so as to identify it], the right to which was adjudged to him in said action ; and that, of the

estate of C. D., the defendant in said action, you cause to be made dollars, being

the damages adjudged to said A. B. in said action, with interest thereon at the rate of six

per centum per annum from [the date of the judgment], and also dollars which were

adjudged to said A. B. for his costs in said action; whereof* the said C. D. is convicted,
as appears to us of record ; and that you have said sums of money before our said court on

the .... day of , to render to the said A. B. ; and that you have then there

this writ.

Witness, [<5rV., as in Form a, supra.]

f Circuit, quarterly, and justices' courts are required to appoint monthly rule-days for the returaof
•executions, " not under thirty nor over seventy days from the test." G. S^ ch. 38, art. x, \\ 9 and 5, aid
Art. x8, g 1 ; Act of 1893, & A., 1005, 1006.



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FORMS GENERALLY IN CIVIL CASES. JlJ

e. Executions on judgments in actions for specific personal property*

(I) Execution for the plaintiff under G. S., eh. 38, art. 6, and Act of 1893, & A '> IOIO «

(Caption of action and direction to sheriff as in the last foregoing Form.)

We command you forthwith to take and deliver to A. B., the plaintiff in the above
styled action, the property in his petition mentioned, to-wit : [describe the property], the
right to which was adjudged to him in said action ; and that, of the estate of C. D., the

defendant in said action, you cause to be made dollars, being the damages adjudged

to said A. B. in said action, with interest thereon from [the date of the judgment], and also

dollars adjudged to said A. B. for his costs in said action; whereof [&*c, as in the

last foregoing Form after the asterisk].

Witness, [SrV., as in Form a, p. 716.]
[Or— We command you that, of the estate of C. D., the defendant in the above styled
action, you cause to be made dollars, being the assessed value of the property ad-
judged to A. B., the plaintiff in said action, and dollars, being the damages ad-
judged to him in said action, with interest on said sums at the rate of six per centum per

annum from {the date of the judgment), and also dollars which were adjudged to said

A. B. for his costs in said action ; whereof (firV ., as in the last foregoing Form after the asterisk).

Witness, (SrV., as in Form a, p. 716.)]

(2) Execution for the defendant under G. S., ch. 38, art. 6, and Act ^1893, S. A., 1 010 (a).

(Caption of action and direction to sheriff as in Form d, p. 716.)

We command you forthwith to take and deliver to C. D., the defendant and counter-
:laimant in the above styled action [&*c, as in the first paragraph of the last foregoing Form,
naking proper transposition of names, 6rV.]
Or — We command you that, of the estate of A. B., the plaintiff in the above styled action,

r ou cause to be made. dollars, being the assessed value of the property adjudged to

I. D., the defendant and counter-claimant in said action (<5rV., as in the second paragraph
fthe last foregoing Form, making proper transposition of names, &*c.)

Witness, (&c, as in Form a, p. 716.)]

(a) These statutes only authorize an execution in behalf of a "plaintiff" who has re-
overed a judgment for a specific thing ; but for several centuries defendants in replevin,
'ho claimed a return of the property, have been spoken of and treated as plaintiffs. See
orm b, ante, p. 653, and notes thereto.

J) Execution fat the plaintiff or the defendant on a judgment rendered pursuant to \ 388 *f the
Code (see Formd, ante, p. 710.)

(Caption of action and direction to sheriff as in Form d, p. 716.)

We command you forthwith to take and deliver to A. B., the plaintiff in the above

yled action, the property in his petition mentioned, to-wit: [describe the property], the right

which was adjudged to him in said action,* if said property can be had ; and, if not,

at you cause to be made of the estate of C. D., the defendant in said action, dol-

rs, being the assessed value of said property,

)r, where there are several articles, insert after the asterisk — or so much thereof as can be
id, and, if part thereof can not be had, that you cause to be made of the estate of C.
., the defendant in said action, the value of such part, the value of said property having

«n separately assessed as follows, namely, the said at dollars, &c,

rting the value of each article,]

th interest thereon at the rate of six per centum per annum from [stating the date of the

dgment] ; and that you cause to be made of the estate of said CD dollars, being

e damages adjudged to said A. B. in said action, with interest thereon at the rate of six

r centum per annum from [staling the date of the judgment] ; and also dollars which

re adjudged to said A. B. for his costs in said action ;



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718 FORMS.

[Or, upon a judgment for the return of property taken by the plaintiff pursuant to Title 8, ch. 2,
of the Code—

We command you forthwith to take and deliver to C. D., the defendant and counter-
claimant in the above styled action, the property mentioned in his answer and counter-
claim, to-wit: (&V., as in the first paragraph, with proper transpositions of A. B. and C. D.)\\
Whereof the said C. D. [or — A. B.] is convicted, as appears to us of record ; and that yon

have the said sums of money before our said court on the .... day of , to

render to the said A. B. [or — C. D.] ; and that you have then there this writ.
Witness, [&V., as in Forma., p 716.)] •

II. Executions from quarterly courts and justices' courts.

[Such executions should be the same as those from circuit courts with these exceptions :
x. They should bear test in the name of the officers issuing them (G. S. t ch. 38, art. 18,

J I ; Act of 1893, S. A., 1006) ; or, if from the quarterly court, in the name of its clerk, if

there be one. Code, §703; Act of 1893, S. A., 1050.

2. A writ of fieri facias should command that the money be made of the "personal
estate" of the defendant. Code, §722.

3. As to the officers, &c, to whom they should be directed, see note {a) to Form c, ant/,
p. 693, as to quarterly courts; and note (a) to Form d, ante, p. 694, as to justices' courts]

III. Executions on bonds having the effect of judgments (G. S., ch. 38, art. 11;

Act of 1893, S. A. t 1015.)!

(Style of the court and action.)
The Commonwealth of Kentucky to the sheriff of county [or to (a)].

On the motion of A. B., the obligee in [or — of A. B., administrator of C. D., who was
the obligee in] [or — of A. B., the obligee in, for the benefit of C. D., the assignee of (b))
the bond hereinafter mentioned, you are commanded to make of the estates of [naming the

obligors'] dollars, with interest thereon at the rate of six per centum per annum from

[the date of the bond], which they undertook to pay to the said A. B. by a sale-bond [or—
a replevin-bond] [or — being the value of the following property (describing it) which, as
is shown by the sheriff's return on an execution in the above styled action (c) was not
delivered as, in favor of said A. B. (d), they undertook should be done by a forthcoming
bond] executed by them in the above-named action and bearing date the .... day

of , . . ., as appears of record in said court ; [and, also, {if the execution be on a

forthcoming bond) dollars costs which have accrued on said bond (e) as appears of

record in said court ;] and that you have said money before our said court on the .... day
of , to render to the said A. B. ; and that you have then there this writ.

Witness, [&c, as in Form I a. Form I c, or Form I d to Form 154, pp. 692, 693, 694)].

(a) As to executions from quarterly courts and justices' courts, see last foregoing Form.

(b) Bonds placed by statute on the footing of judgments are not legally assignable, and
executions thereon must issue in the names of the obligees. 5 Lift., 289; 5 J. J. M., 75.

(c) G. S., ch. 38, art. 9, §2; Act of 1893, S. A., 1013.

(d) I have used the words "in favor of," because the form prescribed in the statute
does not require the obligee to be named in the bond, and perhaps he may frequently not
be named. But, if named, use "to " instead of " in favor of."

(e) As to the liability for interest and costs on a forthcoming bond, see G. S., ch. 38,
art. 9, ?2; Act of 1893, S. A., 1013.

IV. Executions on judgments in chancery.

[See note {e), ante, p. 715, as to executions on such judgments.]



fThe bond should be indorsed—" No surety of any kind is to be taken.'



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FORMS GENERALLY IN CIVIL CASES. Jig

165. Distress for Rent (G. S. t ch. 66, art. 2 ; Act of 1893, 5. A. 9
458.)

a. Affidavit for Distress-warrant K a).

A. B. says [or — E. F. says that he is the agent of A. B. and] that C. D. owes him, for

the rent of land in county, and payable in money, dollars, [in installments

of dollars each], which became due on the day [or — days] of

[naming a day or days within six months before making of the affidavit.}

A. B. [or— E. F.]

(Verification as in Form I.)

(a) Under the G. S. a verbal oath sufficed (13 Bush, 418), but the Act of 1893 requires
an affidavit.

b. Distress-warrant.

A. B., Plaintiff, )

against > Dist ress-warran t.

CD., Defendant, j

The Commonwealth of Kentucky to the sheriff [or — to , a constable] of

county (a).
It appearing from the affidavit of the above named A. B. [or — from the affidavit of

, the agent of the above named A. B.], that the above named C. D. owes

him, for the rent of land in county, payable in money, dollars [in installments

of dollars each,] which became due on the .... day [or — days] of ;

you are commanded to distrain the personal property in your county, not exempt from dis-
tress for rent of the said C. D. [and of , the assignee (or — under-tenant of

said C. D.) found on the leased premises], or so much thereof as will satisfy the said debt,
with interest at the rate of six per centum per annum thereon [or — on said installments]
from the day [or — the days] aforesaid, and the costs of this proceeding (b).

Witness, , Judge of the Quarterly Court [or — Justice of the Peace

for county], this .... day of

,J Q. c.

W ,J.P C]

(a) See G. 5., ch. 66, art. 2, $4; Act of 1893, § II, S. A. t 458.

(b) The common law allowed landlords to distrain property for rent without warrants,
or to issue their own warrants to agents appointed by themselves. They could not, how-
ever, sell the property, but were required to place it in a lawful pound, where it remained,
at the tenant's risk (he being required to feed distrained cattle), until the rent was paid.
Our statutes, whilst forbidding such distress except under warrants issued by judicial offi-
cers, to be directed to constables or sheriffs, and whilst authorizing a sale of the distrained
property on credit, or replevying of the debt, do not seem ever to have provided for a re-
turn of the warrant except in cases of sale or replevin. An act of 181 1 (Af. <5r» B. % 1358)
required an officer who took a replevin-bond to return it, " together with the warrant of
distress," " to the clerk's office of the circuit court of the county in which the distress
was made."

The Revised Statutes (ch. 56, art. 2, J? 27, 28) required sale-bonds and replevin-bonds
to be returned, with the distress- warrants, to the clerk's office of the circuit court, without
saying whether it should be the court of the county in which the warrant was issued or in
which the distress was made. The G. S. (ch. 66, art. 2, §§ 23, 24) and the Act of 1893
\#\ 19, 20, S. A., 460) declare that an officer selling distrained property shall take bonds
from the purchasers, " which he shall return with the warrant, and upon which, at ma-
turity, if the same be not satisfied, the officer before whom it is returned, or clerk of the
circuit court, shall issue execution ; " and that those provisions shall apply to replevin-
bonds.

A bond under §653 of the Code, to discharge a distress-warrant, shall be returned with
the warrant, "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
he county."

46



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7 20 FORMS.

It seems to me that officers issuing distress-warrants have no more authority to com-
mand what shall be done with sale-bonds or replevin-bonds than clerks have in writs of
fieri facias ; and that, unless there is other statutory provision than those above met-
tioned, as to returning such warrants, such officers have no authority to make any con-
mand on the subject.

1 66. Bonds relating to Executions and Distress-warrants*

a. Replevin-bond before delivery of execution to officer.

[See Form prescribed in G. S. t ch. 38, art. 8, \ I ; and in Act of 1893, £ ^-» W"-]*

b. Replevin-bond after delivery of execution to officers.

[See form prescribed in G. S., ch. 38, art. 8, \ 2 ; and in Act of 1893, £ "*•• I0ia.]t

c. Replevin-bond of tenant to discharge distress-warrant (G. S. t ch. 66, art. 2, J 24; and Act

of 1893, £ A. t 460.)

We, A. B., principal, and C. D., his surety, bind ourselves to pay to E. F., three

months after the date hereof, dollars, with interest from this date, being the

amount of the debt, interest, and costs (a) upon a distress-warrant which, on the .... (by

of » w as issued by , the judge of the quarterly court

{or— a justice of the peace for county] in favor of said E. F. against said A. B. ; tnd

we having hereby replevied the same.

Witness our hands this day of (Signatures of obligors.)

Attest : Sheriff [or— constable] of county.

y (Signature of officer, with official initials.)

{a) See the last foot-note on this page.

d. Bond of a tenant or his assignee or under-tenant ', under {653 of the Code, to obtain disdwgt

of a distress-warrant (a).

A distress-warrant for one hundred dollars rent having been issued by

in favor of A. B.; we, L. M., principal, and N. O., his surety, bind ourselves to pay to said
A. B. said rent and ten per cent, thereon [or — to pay to said A. B., with ten per cent, thereon,
fifty dollars, that being the appraised value of the property levied on {or— which was
about to be levied on) under said warrant, as is shown by appraisement annexed hereto.]

Witness our hands this .... day of

(Signatures and attestation as in last foregoing Form.)

(a) Such a bond, though not naming the principal obligor as being a tenant or his as*
signee or under-tenant, estops the obligors from averring that he is not one or the other,
as no one else has a right to give such a bond; and, in action or motion on it, the only
allowable defences are those permitted by §654 (Pegard v. Kellar, 4 Met., 260), which do
not embrace a contest as to the value of the property, to avoid which an appraisement is
required, unless the obligors waive any question as to such value by giving bond for the
rent specified in the warrant.

«. Bond of a tenant or his assignee or under-tenant to obtain partial suspension of a distress.
(Code, §658.)

A distress- warrant for dollars rent having been issued by in fav< r

of A. B.; we, L. M., principal, and N. O., his surety, contending that the sum of

* As to bonds, in injunction-cases, to obtain the discharge of an execution-levy, or to retain possess*
of property levied on, see Forms c and d, ant*, p. 704.

t Those Forms, which the statute prescribes as being sufficient "in substance," state the item* cow-
posing the aggregate sums for which the bonds are to be given ; said items in the last named Form beiftfc
1, the debt ; a, the interest thereon; 3, the costs of said suit ; and, 4, the sheriff's (or constable's) half coo-
mission. But it seems clear that a bond, as in Form c, supra, for a certain sum, as being the amount doc
the obligee for his debt, interest, and costs, would estop the obligors from disputing its correctness except
by a plea of fraud or mistake (see notes 5 and 6, ante, p. 627) ; and that such a plea would be as available
against a bond which states, as against one which does not state, the items.



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FORMS GENERALLY IN CIVIL CASES. J21

dollars, part thereof, is not due, bind ourselves to pay said sum to said A. B., with inter-
est thereon from [stating the day when, according to the warrant, it became due], if it be ad-
judged that the same is due.

Witness our hands this .... day of ,

I Signatures and attestation as in Form c, supra.)

f. Indemnifying bond to procure levy of, or sale under, an execution or distress-warrant. (Code,
8641, 651, 652)

An execution [or— distress- warrant] in favor of A. B. against C. D. having been issued

on the .... day of from the court [or — by , the judge

of the quarterly court {or — a justice of the peace) for county] ; and .......

, the sheriff [or — a constable] of county, having required an indemnifying

bond before levying said execution [or — distress- war rant] on [or — before selling under a
levy of said execution (or — distress-warrant) on] the following named property (describing
it) : we undertake to indemnify th©ssaid sheriff [or — constable] against the damage he may
sustain in consequence of the seizure or sale of said property ; and to pay to any claimant
thereof the damages he may sustain in consequence of the seizure or sale ; and to warrant
to any purchaser of the property such estate or interest therein as is sold.

Witness our hands this .... day of *

(Signatures and attestations as in Form c, supra.)

g. Claimants bond to suspend sale under an execution or distress-warrant.* (Code, §#645,
646, 650, 651, 652.)

An execution [or — distress- warrant] in favor of A. B. against C. D., issued on the

day of , from the court [or — by , the judge of the

quarterly court (or — a justice of the peace) of county, having been levied on a

piano appraised at dollars [or, if there be several articles, say — on the following

named property, appraised at — stating the appraised value of each article]', we, L. M., the
claimant of said property, and N. O., his surety, agree that, if said property [or — if any
part of said property] shall be adjudged to be subject to said execution [or — distress-
warrant], we will pay to said A. B. the value of the property so subject and ten per cent.
thereon, not exceeding the amount due on said execution [or — distress-warrant] and ten per

cent, thereon. Witness our hands this day of

(Signatures and attestation as in Form c, supra.)

h. Appraisement of property before taking bond., ($046, 653) (a).
[See Form c, ante, p. 697.]

(a) As has been suggested (note (a) to Form d, p. 720), the obligors can make no con-



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