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Civil and Criminal codes of practice of Kentucky online

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on petition for new trial 344 283

trial of attachments, when 264 223

248 issue in equity may be required by court 552 399



I7I\
172/



to prove exhibits even in equity $52 399

Forms relating to 721-723

5. General Rules—

affirmative of issue to be supported by evidence 525 385

burden of proof in whole action 526 38$

385 J (I) generally.

392 (2) in actions for malicious prosecutions.

393 (3) will-cases.

evidence not to be stated in pleading 1 19 165

order of producing evidence before jury 317, 525 592 < ??*

see Witnesses.
EXAMINATION-^-

of defendant or claimant concerning property attached 220 212

concerning specific property ordered to be attached. . .257 222



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INDEX TO CIVIL CODE. 807



ace. EXAMINATION— Continued. «c. faob.

of defendant in action for personal property 193 197

garnishee, concerning property attached 226 214

plaintiff, as to claim against absent defendant 412 306

witnesses, court must control, generally 592, 593 412

direct and cross, definition of 594 412

must be completed before cross begins 594 412

giving deposition controlled by officer 579 407

oral, defined 546 397

party having burthen must begin 317 251

leading questions to 595 412

re-examination of witness not allowed without leave unless in re-
buttal 553, 600 400, 415

separation of witnesses during 601 415

EXAMINERS—

appointment and oath of . . 559 401

office of, where to be kept 560 401

powers of, concerning administering oaths 561 401

concerning taking affidavits '. . . 549 398

depositions 562 401

EXCEPTIONS—

1. Exceptions to Judicial Decisions—

how taken, generally 15, 333 7, 264

to decisions entered on record 336 268

must relate to substantial right 338 270

objecting before excepting, when necessary 333 264

.-65 necessity of, generally.

on trial of law and facts by court.

when to be taken 334 266

bill of exceptions, when necessary.

affidavits concerning 337 269

certifying of by bystanders 337 269

judge 339 270

\ filing of, time and place for. (Notes 2, 3.)

mode of preparing 337 268

time for may be allowed 334 266

-6& statement of evidence in 335 267

-70 instructions in 337 269

2. Exceptions to Depositions : see Evidence, 3.
EXCHANGE, BILL OF: see Bill of Exchange.
EX CONTRACTU— right to try actions as to some defendants and

continue as to others ^ 363 286

EX DELICTO — trial of action as to part of defendants secured by dis-
missing as to others, &c 363 286

EXECUTIONS—

against body of defendant 168 191

bond of indemnity before levy of or sale under 641, 642 429

claimants, &c, to look to 643 430

to obtain suspension of sale under 645 431

appraisement before taking. 646 432

objection to. .649 433

to what court returnable. 647, 65 1 432, 433



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8o8



INDEX TO CIVIL CODE.



page. EXECUTIONS— Continued. sac

bond to obtain suspension of sale under motion on against obligors. .648

of obligor to dis-
charge, &c . . . .650
defendant not having property subject to, liable to general attachment. 194
proceedings against on return of nulla bona, generally. . . .439

from inferior

courts 723

discharge of levy of by injunction-bond 278

bond to suspend sale and motion to release

levy 645, 650

from justices' courts, &c, land can not be sold under 722

proceedings on after return of nulla bona .723

issuing of before collection is barred by limitation allowed 401

after death of a plaintiff 402, 403, 404, 406

against surviving defendant ;. . .405

levy of on interest in joint property 660

motion to release levy of 650

proceedings after death of defendant 407

replevy of, when not allowed 232, 697

sales under, when to be for cash subs. 3, 697

surplus proceeds of property to be returned to court, when 644

trial by jury of right of property taken under abolished 659

Forms of

EXECUTORS : see Representatives.

EXEMPTION of property from attachment 200

EXHIBITS—

constituting foundation of action must be filed or accounted for. . . .120

evidence may be filed 128

genuineness of, when to be taken as admitted 527

of like character, statement of in bill of exceptions subs. 3, 335

transcripts subs. 8, 737

-72 } P roy i n g of 55 2

' EXISTING ACTIONS, provisions of Code which apply to 837

EXONERATIONS : see Arrest and Bail.

EXPENSES : see Costs.

EXPRESS ADMISSION not necessary in plea of avoidance or estop.

pel subs. 6, 113

FACT—

issue of arises, how 310

how to be tried 312, 313

pleadings necessary to for allowed 89

FACTS—

conclusions of, when to be stated by judge 332

149 evidence not to be pleaded 119

express admission of unnecessary in plea of avoidance 1 13

151 judicially noticed not to be pleaded 119

147 legal conclusions not to be pleaded.

occurring after pleading supplementary pleadings allowed 13$

161-62 presumptively within defendant's knowledge.

proved, conforming pleading or proceeding to 129, 130, 134 <

146 to be stated positively.



FACT.

43*

433
199


453
236

43 *. 433
453
453
301

30l» 3<*
302
435
433
302

217. 44*
448

43'

435

716-718

204

165

171

.393

267

479
399
497



160

245

246

58

264
165
160
165

183

172, 174
175



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!}



INDEX TO CIVIL CODE. 809

SBC. PAGE.

FAILURE OF PROOF, variance which is to be deemed 131 174

FALSE REPRESENTATIONS—
as to character, &c, action for.

Form of petition . , 573

h&i land.

1 personal property, action for.

Forms of petitions 571-573

FATHER, action of for injury to child.
FEES—

for issuing of subpoenas and summoning witnesses, &c 584 40&

of attorney for absent defendant subs. 6, 59 46

in Court of Appeals subs. 3, 736 477

commissioners to divide land, &c subs. 15, 499 367

examining officer, prepayment of 583 408

guardian ad litem subs. 4, 38 36

person appointed by court to serve process 668 438

FEMALE, interrogatories to, in ordinary action subs. 2, 143 186

FEMES COVERT: see Married Women.
FEMININE GENDER—

includes, and is included by, masculine subs. 3, 732 462

FIDUCIARIES—

actions, by and against, for settlement of estates. 428, 438 316, 321

generally 21 14

settlement of accounts of in county court 471, 472 349

venue of action by and against 66, 67 49b

FINAL ORDERS—

judgments are 368 28S

mode of appealing from, to the Court of Appeals 734 465

orders concerning receivers are, for the purpose of appeal 298 241b

attachments, which are 266, 267 224

mandamus and prohibition 47$ 353

when motion shall be made to correct before appealing from 763 494

FINE — affidavit to obtain order of delivery must state that property

was not taken for subs. 5, 181 194

venue of action for recovery of subs. 1, 63 49

"ORCE, «* prevented by," not sufficient return of process 677 440

FORECLOSURE of mortgage forbidden 375 291

'ORCIBLE ENTRY AND DETAINER, defined 452 339

for and against whom forcible detainer lies 452, 453 340, 342



y



\ entry lies.

'writ of, form of 454 342

limitation of 469 348

notice of 455 343

trial of 454, 456 342, 344

coercing attendance of witnesses 458 344

inquest upon 454, 459 342, 345

judgment upon , 460 345

warrant of restitution or execution for costs 461 345

no bar to action for trespass, &c 468 348

papers, &c, to be preserved 462 346



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8lO INDEX TO CIVIL CODE.



face. FORCIBLE ENTRY AND DETAINER— Continued. «c. f**

traverse in and bond required 463 346

liability on 464 347

trial of 465 347

judgment and execution on . . 465, 466 347, 348

restraint of waste pending .467 34S

FOREIGN CORPORATIONS, de6ned subs. 21, 732 463

actions against: see Defendants Constructively Summoned.

attachment against property of 194 198

FORFEITURE—

holding office after act of is usurpation 486 356

venue of action for recovery of subs. 1, 63 49

FORM, of actions 4 2

errors as to, not cause for dismissal 8 . 4

correction of. 9, 10 4

waiver of 1$ 7

exceptions, provisions concerning subs. 1, 335 267

pleadings 88 58

130 FORMER JUDGMENT, plea of: see Pleas of Avoidance.

157 FORMING AN ISSUE 112 160

FORMS : see Index to Forms.
FORTHCOMING BONDS—

by party seeking to enjoin execution 278, 279 236, 237

joint owner of property levied on subs. 4, 660 435

for attached property 214, 258 209, 222

provision as to defence to 216 210

sureties not released from by bankruptcy of

principal 693 444

FOUNDATION OF CAUSE OF ACTION—

writing constituting to be filed or accounted for in pleading 120 165

331 FRANCHISE, injunction to protect.

usurpation of: see Repealing or Vacating Charters •, &c.
FRAUD, action for selling personal property to plaintiff.

Forms of petitions, p. 571 ; reply and rejoinder, 669
real property to plaintiff.

Form of petition 505

attachment allowed in action to vacate purchase obtained by 250 220

. other cases of # 194 '9*

670 1 pleadings alleging.

597 FRAUDULENT CONVEYANCE, actions to subject property.
FREEHOLD—

when owner of may have reversion or remainder sold 491, 492 359, 361

FRIEND : see Next Friend.
FUND IN COURT—

attachment of 207 »6

deposit of, generally 307 *44

loan of 308 245

GARNISHEES—

action and attachment against 194, 227 198, 215

against, when to be dismissed 228 *'$

appearance by 224 2'4

bond of for money, &c, attached 225 214



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INDEX TO CIVIL CODE. 8l I

a. GARNISHEES— Continued. «c pagb.

bond of for money, &c, attached, enforcement of 225 214

costs of proceedings against 223 213

disclosure by or proof against 224-226 214

duty of to furnish statement, &c, to officer * 205 206

execution of attachment on 203 205

liability of for money, &c 225 214

notice to in action to enforce satisfaction of judgment after return

of nulla bona 442 324

Form of notice to 701

payment of money by 223 213

punishment of for failure to give information, &c ; .205 206

GENDER, each includes every subs. 3, 732 462

GENERAL ATTACHMENTS: ste Attachments.
GENERAL DEMURRERS: set Demurrers.

GENERAL INTEREST, action involving may be brought or defend-
ed by or against one or more for all 25 20

GENERAL ISSUES abolished.
GENERAL RULES OF PLEADING—

certainty in pleading 115, 134 i6.*, 175

duplicity in pleading,

correspondence between allegations and proof: see Variance.

facts must be stated positively.

not evidence, must be stated 119 165

legal conclusions, to be stated.

of which judicial notice is taken 119 165

forming an issue 112 160

giving color unnecessary 1 13 160

inconsistent pleadings 113 160

legal fictions.

presumptions of law must be rebutted.

not be stated 1 19 165

redundancy .... 121 166

repugnancy.

rules of construction of pleadings,
statement of prima facie cause of action, &c.
GENERAL STATUTES—

provisions of, adopted concerning attachments for rent 195 201

civil proceedings in behalf of

Commonwealth 450 330

probate of wills 470 349

property conveyed in trust, &c. . .438 321
settlements of accounts fidu-
ciaries 471, 472 349

decedents' estates 437 319

as to exemptions from execution, applied to attach-
ments 200 204

ENERAL VERDICT: ste/ury.
rENXJINENESS of writing filed with pleading admitted, unless denied

before trial begun, &c .' 527 393

IVING COLOR unnecessary 1 13 160



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8 12 INDEX TO CIVIL CODE.



pack. GOVERNOR OF KENTUCKY— *«c. mm.

evidence of must be taken by deposition 554 400

unless, &c • -555. 556 400

GUARDIAN—

actions against by ward 35 33

Form of petition 606

523-24 j venue of 67 49b

by, generally 21, 35 14, ^

for division of land 499 366

sale of real property 489-498 358-365

Form of petition 613

arbitration may be agreed to by 451 333

defence of actions by 36 34

traverse unnecessary 126 169

depositions may be taken on interrogatories by consent of 572 40$

liability of for costs 37, 619 35, 423

notice to 627, 632 425

pleadings need not be verified by 116 162

settlement of accounts in county court 472 349

GUARDIANS AD LITEM—

appointment of in circuit court 38 35

duties, powers, and compensation of 36, 38 34, 35

notice to 627, 632 425

pleadings may not be verified by 116 162

prepayment of fees for taking depositions not required of. 583 408

HEIRS—



20



5 9 i actions against, generally 26, 27

J to settle decedents* estate subs. 2, 428 316

by, to settle decedents' estate subs. 1, 428 316

are real representatives subs. 18, 732 461

revivor of actions against 5°5-5°7 37^

must be within twelve months, &c 508 377

in the name of 509-511 377-78

judgments by and against 401-407 301-302

HOLIDAY—

bond given on, in action, valid 664 437

issue and service of process on 664, 665 437

HOUSE, breaking of by officer, when authorized 675, 676 44°

-7Q I H0USE * KEE]PER WITH A FAMILY, meaning of.

HUSBAND, action by for divorce : see Alimony or Divorce.
29,961 actions by for injury to wife or against, when wife may bring or

561 / defend 34 28

how made party in action against wife begun before marriage. subs. 5, 34 **

may consent that depositions may be taken upon interrogatories. . . .572 405

service of notice on sufficient in action by or against husband and

wife 629 4*5

testimony of subs, I, 606 4*7

see Married Women.
j 4 6 HYPOTHETICAL PLEADINGS insufficient.

IDIOTS are embraced in term "persons of unsound mind", .subs. 40, 732 4^4

see Persons of Unsound Mind.
ILLEGALITY OF CONSIDERATION. Form of plea of. 639



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INDEX TO CIVIL CODE. 813

SB. SBC. FAGS.

IMMEDIATE DELIVERY of personal property : see Claim and Delivery.
IMPEACHMENT OF WITNESS: see Witnesses.
IMPLIED CONTRACTS—
what constitutes,
averment of promise to pay. Note V.

request by defendant. Note IV.
consideration of, generally. Note 3.

in actions against assignors of notes, &c. Note 2.
on bills of exchange. Note II, I.
IMPRISONMENT—

in penitentiary is disability subs. 31, 73a 463

how evidence of persons in jail, &c, may be taken 540, 541 396

I INCLOSURE, breaking of by officer, when authorized 675, 676 440

[INCONSISTENCY IN PLEADING 113 160

'INCUMBRANCES: see Lien.
INDEFINITE ALLEGATIONS, how objected to.
INDEMNITY—

actions for by sureties and co-obligors before debt matures 237 218

judgment, &c, in 242-248 219, 220

provisional remedies in . .237-241 218, 219
see Arrest and Bail, 2 ; Attachments, I 2, III.

bond of, to defendant in action on lost writing 7 2

owner of interest in joint property attached 208 207

officer before levying attachment 211 208

distress- warrant. 652 433

execution 641, 442 429

claimant, &c, must look to 643 430

upon taking property under order of delivery. . . . 191 197

motion for, sureties, &c: see Summary Proceedings.

Forms of bonds 72I

NDEX—

of books of proceedings of justices' courts 715 452

judgments in judgment-book a . . .392 298

transcripts A subs. 12, 737 479

tfDORSEMENT: set Assignment.
tf FANTS: (see Guardians).

actions against and by for division of land 499 366

for sale of land 489-498 357-365

- of against guardian 35 33

venue of. 67 49b

allegations against, proof of, though not traversed 1 26 169

certiorari, granting of to 743 482

defences of actions against, generally 36 34

upon constructive service 59 45

{116, 126 162, 169
391, 574 297, 406
743. 745 482, 483

j udgment against, copy of not to be served on 415 307

showing cause against when of age .. , 391 297

vacating, for errors not shown by proceedings. . .518 380



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8 14 INDEX TO CIVIL CODE.



page. INFANTS— Continued. sac. tax*.

judgment against, rendering before defence or report is misprision. .$i? 379
married women who are : see Married Women.

next friend, who may act as, and affidavit of subs. 1, 37 35

liability of for costs subs. 2, 37, 619 35, 423

notice to, how served 627, 632 425

142 replies to pleas of.

summons of, how served 48, 52 40, 41

actual, not allowed out of this State 56 43

testimony of, when not admissible 605 416

party against subs. 2 and 6, 606 417, 418

traverse by not necessary 126 169

Forms of pleadings relating to < frro-M

INFERIOR COURTS: see Courts.
IN FORMA PAUPERIS—

guardian, &c, may be allowed to sue in forma pauperis 37 35

prepayment for depositions not required of persons suing in forma

pauperis 583 40&

INFORMATION—

denial of, &c., when sufficient traverse subs. 7, 1 13 160

of injunction, binding 283 237

requirement of, by jury as to law, &c, after case submitted 321 255

as to situation of property ordered to be delivered. . 193 197

concerning attached property, &c 220 212

from garnishees 205, 226 206, 214

INJUNCTION defined 271 227

1. TO PREVENT ACTIONS AGAINST DECEDENTS' ESTATES AND TRUST-

ESTATES 436, 438 319, 321

2. DAMAGE PENDING MOTION FOR MANDAMUS, &C 476 353

3. PROCEEDINGS UPON JUDGMENTS, GENERALLY . 1 7, 523, 524 8, 384

execution improperly revived 406 30a

in action, judgment in which could be set off

against judgment for defendant 378 293

for less than $25 forbidden 284 237

granted only by court rendering judgment. . . .285 238

affidavit for 285 238

assessment of damages on dissolution of 295 24a

bondfor 278 236

617)

6l8 V 4. TO PREVENT WRONGS, GENERALLY 272 227

j such as —

229 (1) illegal taxes.

229 (2) trespasses on land.
23° (3) waste.

230 (4) nuisances.

231 (5) interference with easements.

231 (6) interference with franchises.

232 (7) to quiet title.

232 (8) to protect mortgagees.

232 (9) in church-controversies.

233 (10) against infringing trade-marks.

233 (II) against wrongful acts of municipal corporations.



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INDEX TO CIVIL CODE. 815



agi. INJUNCTION — To prevent wrongs, generally— Continued — sec. pagb.
34 (12) discriminations by common carriers, &c.
34 (*3) fraudulent resale of land by vendor.
j4 (14) selling liquor contrary to contract.

affidavit for 273 234

reading of, &c 277, 287 236, 238

binds party from time he is informed thereof 283 237

bonds for 276, 278 23$, 236

sureties in to be accepted by clerk 280 237

motion for additional 288 238

continuance in force when made by court or circuit judge 276 235

clerk, &c 276 235

disobedience of, punishment for 286 238

dissolution or modification of by appellate judge 296, 297 2410,241b

granting of, by whom made 273 234

before petition filed forbidden 273 234

mandatory or preventive order allowed 276 235

not granted by clerk, county judge, or justices 276 235

motion for, after restraining order 276 235

notice of application for 276 235

motion to dissolve or modify, if granted by justices, &c 290 239

on whole case 291, 293 239, 240

postponement of. 292 240

only one allowed 294 240

order of, requisites, issuing of, &c 279, 281 237

service of 281 237

notice of application dispenses with 282 237

provisional, control of court over 274 235

reinstatement of by appellate judge 296, 297 241a, 241b

supersedeas of judgment concerning 747 484

Forms of petitions 614-618

Other Forms relating to 704-05

INJURIES, actions for—

1. to person.

Forms of petitions, p. 560-62 ; of answers, p. 656-58; of replies. 680

2. to property.

Forms of petitions, p. 556-60; of answers, p. 660-61 ; of replies. 68 1 -8 1

3. to reputation.

statement of extrinsic facts in action for unnecessary. 123 166

Forms of petitions, p. 563-66; of answers, p. 655, 656; of replies. 679

joinder of causes of action for subs. 5 and 6, 83 55

venue of actions for 74, 78 51, 52

[NNKEEPERS, who are, &c.
[NQUESTS: see Forcible Entry and Detainer.
NSANE PERSONS: see Persons of Unsound Mind.
jVSOLVENCY, oath of may be taken by arrested debtor, and effect

of. 158, 168 189, 191

INSTRUCTIONS 317 . 251

general rules concerning.

may be asked for by jury 321 255

statement of in bill of exceptions 337 268

52



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8l6 INDEX TO CIVIL CODE.



face. INSTRUMENTS— «c mql

of like character, how copied in bill of exceptions sobs. 3, 33$ 267

64 } transcript subs. 8, 737 479

5 1 * [INSURANCE, against fire.

518 for life.

INSURANCE COMPANIES, venue of actions against 71 51

INTEREST—

abatement of in judgment before debt is due subs. 3, 247 220

«? 1 pl ea< *ings concerning.
161 statement of in separate paragraphs.

INTERPLEADING authorized 30, 31 25, 26

affidavit of party asking for 30 25

INTERROGATORIES TO PARTIES—
I. In Circuit Courts generally —

1 . In equitable actions —

may be annexed to any pleading 140 185

answers to may be read by either party 140 185

not confined to response 141 185

shall be filed, when 142 185

to entitle to trial 365 287

party interrogating may testify in writing as to new matter in. . . .608 420

2. In ordinary actions —

may be annexed to pleadings against certain persons 143 186

answers to, when to be filed 144 186

failure to file, effect of as to postponement 145 186

not confined to response 146 186

party interrogating may testify orally as to new matter in 609 420

3. In appeals from inferior courts 716, 717, 718 45*

II. In Circuit Courts in continuous session —

time of answering Appendix. 731

III. In Inferior Courts—

may be filed against certain persons 716 452

answers to, when to be filed, &c .716, 717 452

two last sections apply to appeals .718 452

IV. General provisions concerning —

answers must distinguish between knowledge and belief, &c. . . . . 147 186

may be compelled by process for contempt, &c 151 187

verification of 148 186

subject of, to be taken as true on failure to answer if, &c 150 186

INTERROGATORIES TO WITNESSES: see Evidence, 3.

INTERVENTION by claimant of property in litigation 29 23

IRRELEVANT MATTER to be stricken from pleading with cost 121 166

IRREPARABLE INJURY may be enjoined 272 227

ISSUES, what are 309 245

of fact, arise how 310 245

3~5 \ affirmative or negative of depends on the substance of plea,

not on affirmative or negative language.
667 formed by plaintiff's averment and defendant's denial, or

conversely, see bracketed note.
121 ^
, V general abolished.

how to be tried 312, 313 246



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INDEX TO CIVIL CODE. SlJ



fag*. ISSUES— Continued. s«c. pace.

of law, how to be tried 312 246

material, must be formed 114 162

pleadings necessary to form allowed 89 58

transfer of to proper docket, &c: see Transfer.
JAILER—

definition of word, as used in Code subs. 16, 732 46 i

arrested debtor must be kept by, unless, &c 158 189

give bond for release before jailer if in prison . 163 190

entitled to notice of motion on bail-bond taken by him 165 190

exonerated, if motion is not made or does not prevail 166 191

judgment that bail is insufficient does not release the bail 167 191

order of arrest, copy of, when to be delivered to jailer, and receipt

given 173 192

liability of, as bail, and discharge of i?4 193

how fixed 175 193

to, of bail adjudged insufficient 176 193

process to be directed to, when 667 438

as to duties, &c, of jailer concerning: see Sheriff.
JOINDER—

of causes of action 83-86, 113 55-57,160

grounds of defence 1 13 160

parties-plaintiffs, generally 22, 24 15, 20

for sale of real property of infants, &c 498 365

defendants 23, 24, 26, 27 19, 20

JOINT DEBTORS, who are subs. 30, 732 463 •

actions against 27 20

of, against co-obligors after debt matures 661, 662 436

before debt matures : see Indemnity.
200 property of one can not be attached on grounds existing against

another 194 198

may be sold under attachment against one, when 209 207

JOINT OWNERS, when interest of in real property may be sold with-

out consent 490, 496 358, 364

JOINT PROPERTY defined subs. 29, 732 463

attachment of interest in — provisions concerning 208, 209 207

levy of execution on personal property held jointly 660 435

sale of, in action by joint owner 490, 496 358, 364

JOINT TENANTS defined subs. 28, 732 463

See Joint Property.
258 JOINT TRESPASSERS, verdicts against.
JUDGES—

1. Generally — defined subs. 12, 732 462

may be called as witnesses in actions before them 603 415

certify affidavits 549 398

take depositions 562 401

2. Of Court of Appeals— ^

may allow petitions for rehearing during vacation and suspend

mandate 760 492

reinstate attachments 270 226



Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 113 of 142)