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Civil and Criminal codes of practice of Kentucky online

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MISTAKES IN PLEADINGS AND AMENDMENTS. 183

resumption of law. The presumption of law is, that it was paid, and
Endorser, if any had ever existed, was extinguished. Long «Sr» Robertson
na, I Lift.,, 290; Bube v. Rial Estate Bank, 4 Ark., 546 ; Bank v. Harnett,
here Is nothing inconsistent with this conclusion in Woolfolk v. Bank of
504; Young v. Harris, 14 B, M., 536; or Rogers v. Poston, 1 Met,, 643,
ases it distinctly appeared that the paper was indorsed for the accommo-
m by whom it was delivered to the holder. That fact being established,
Lst as to the liability of those who had endorsed the paper and delivered
tended to be accommodated, to be used by him to raise money or to take
; obligation-. But the fact that it was indorsed for accommodation must
iate allegation, and without such allegation no cause of action can be
feet will not be cured by verdict."

, I suggest that neither of the cases cited by the court supports its con-
Robertson v. Bank of Cynthiana, is authority for holding that the petition
it Callahan would have been bad on demurrer ; not, however, because
1 note by the payee to the payor raised a " legal presumption" of pay-
such delivery was an " extinguishment " of the obligation. As between
yee of a note, the payor's possession of it unquestionably furnishes a
>n " that it has been paid ; but, if it be negotiable, such presumption
st against a bona fide assignee before maturity ( Woolfolk v. Bank of
504) ; and this seems to be conceded in Callahan's case. The difficulty
; opinion of the court) was the plaintiff's failure to allege that Callahan
Uion-endorser — the court ignoring the fact that Callahan denied that he
and the consequent right of the plaintiff, notwithstanding its defective
ve indorsement, for accommodation, before maturity.

]. Supplemental pleadings. — A party may be allowed, on
a supplemental pleading, alleging material facts occurring
of the former pleading; but if a plaintiff, having a lien
1 and a debt not due upon property which he seeks to
>oth claims in his petition, he may, upon a suggestion of
t of them has become due, pendente lite, have judgment
ie property therefor.

. mortgagee for the possession of mortgaged property, having been filed
may be supplemented by an amended petition, alleging the forfeiture,
vkhover v. Hurst, I Mel., 665.

flf 111 an action for slander can not, by an amended petition, complain of
Untc lite ; but such words may be proved to show malice in uttering the
of in the original petition. Taylor v. Moran, 4 Met., 127.

. Continuance on amendment. — If a party amend a plead-
ing, and the court shall be satisfied, by affidavit or other-
adverse party can not be ready for trial in consequence
inuance may be granted to some day in the same term or
n of the court.

|. Verification of petition before trial. — A petition filed
ation shall not be dismissed for that reason, if the verifi-
t on or before the calling of the action for trial.



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1 84 PLEADINGS. [TITLE Vll.

§ 138 [165]. Verification unnecessary after trial begins. — No objection
shall be taken, after the commencement of the trial, to any pleading
for the want of, or a defect in, the verification.

1. Objection to a pleading, for want of verification, should be made by motion. 15
B. A/.. 628; 3 Bush, 225.

2. The plaintiff having moved, after the jury was sworn, to strike from the record the
defendant's amended answer, because it had not been verified ; it was held that the defend-
ant should have been allowed to verify it. 3 Bush, 225.

3. In Butler \ <5rV., v. Church of the Immaculate Conception \ 14 Bush, 540, the defendant,
having been permitted to withdraw its answer, moved that the plaintiff be required to
verify his petition, "and his failure to do so was punished ly a dismissal of his suit;"
and the Court of Appeals said : " This ruling of the court was erroneous. This court has
decided substantially that, after answer filed by the defendant, it is too late to insist that
the plaintiff shall swear to his pleading, because, by the failure to make the question till

after answer, the defendant has waived his right to make it The plea, thai

the plaintiff has not sworn to his petition, is in the nature of the plea in abatement, which,
at the common law, could never be insisted on unless aptly relied on before an answer wai
put into the merits of the controversy."

I have not been able to find any previous decision to that effect under the presen
Code ; and the common law rule, forbidding a plea in abatement after a plea to the merits
has no bearing on the question. Section 165 of the Code of 1854 declared that "N<
objection shall be taken, after judgment, to any pleading, for the want of, or defect in
the verification ; " and it was held that defendant's motion, after a trial and verdict fo
the plaintiff, that he be required to verify his petition, came too late ; not because th<
defendant had answered the petition, but because his conduct " has been such as to induci
his adversary to believe, and to act on the belief, that the objection had been abandoned.'
Afeador v. Turpin, 4 Met., 93. In conformity to the decision in that case, \ 138 of th
present Code declares that "no objection shall be taken, after the commencement o
the trial, to any pleading for the want of, or a defect in, the verification" [of pleading]
As "a trial is a judicial examination of the issues of law or fact in an action or pre
ceeding" {Code, §311) ; and as a demurrer or answer is necessary to form an issue of lai
or fact, it seems clear that the legislature did not intend that the filing of such pleadin
should be a waiver of the defendant's right to require a verification of the petition, b
motion made at any time before commencement of the trial.

§ 139 [166]. Amending without verification. — Courts may, in thei
discretion, permit the amendments authorized by this chapter to b
made without being verified, unless a new and distinct cause of actio;
or defence be thereby introduced.



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INTERROGATORIES. 1 85

CHAPTER IX.

INTERROGATORIES.

tories in equitable actions.

party answering not confined to mere response.

when to be answered.

in ordinary actions.

when to be answered.

when trial not postponed for failure to answer.

section 141 applies to answers to.
lust distinguish between knowledge and information,
verification of.

rty may be compelled to testify in court.
,im sustained for failure to answer interrogatories.
y compel answer.

Interrogatories in equitable actions. — In equitable actions,
lex to his pleading written interrogatories to the adverse
ng any material allegation thereof (a) ; and answers
i, may be read by either party, as a deposition between
ogating and the party answering (b).

nt is not bound to answer interrogatories "contained in the body of the
' Miller v. Garnett <5r» Thompson, 18 B. M., 68) ; nor to make a statement
t him to a criminal or penal prosecution. Cole v. Wilson, 18 Id., 216.
#7; $Bush, 617.

Party not confined to mere response. — The party answer-
\ confined to responding merely to the interrogatories,
any facts concerning the cause of action to which the
refer, and they may likewise be read as a deposition.

)de of 1854, a party could not testify for himself except concerning new

le party interrogated. Mustek v. Ray, 3 Met. y 431.

xle of 1854, a party could not compel the adverse party to give a depo-

ntifT voluntarily gave his deposition at the request of the defendant,

t this did not give the defendant the right to testify even as to new

. Ray, 3 Met., 427.

hts and duties of parties with reference to testifying, under this Code,

When interrogatories to be answered. — Interrogatories
etition shall be answered when the party is required to
tition ; if annexed to any other pleading, they shall be
enty days after notice of the filing thereof shall be given
\ party or his attorney ; but if answered twenty days
1 at which the action stands regularly for trial, the action
»tponed on account of their not being sooner answered.



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\6 PLEADINGS. [TITLE Vtt

§ 143 [170]. Interrogatories in ordinary actions. — In ordinary actions,
party may annex to his pleading written interrogatories to an adverse
irty concerning any material allegation —

1. If the party interrogated do not reside within twenty miles from
e place where the action may be pending.

2. If the party interrogated be unable to attend court on account
' infirmity, or imprisonment, or be a female.

§ 144 [171]. When to be answered. — In ordinary actions, interroga
ries annexed to the petition shall be answered when the petition u
quired to be answered ; if annexed to any other pleading, they shal
1 answered at or before the calling of the cause for trial, if the party
terrogated had reasonable notice of their being filed.

§ *45 [*7 2 ]- When trial not postponed for failure to answer. — Th<
ial of an ordinary action shall not be postponed on account of th<
ilure to answer the interrogatories, if the party interrogated be presen

court at the trial, so that he may be orally examined ; nor, in case oi
s absence, without an affidavit showing the facts which the part]
Sieves will be proved by the answers thereto, and that the party ha
)t filed the interrogatories, nor omitted to file them, for the purpose
'delay; nor, if the party will consent that the facts stated in the affi
ivit shall be considered as admitted by him.

^ 146 [173]. Party not confined to mere response. — The provisions o
141 shall apply to the answers to interrogatories in ordinary actions

§ 147 [174]. Answers must distinguish between knowledge and in/01
ation. — A party, in answering such interrogatories, shall distinguisl
early between what is stated from his personal knowledge and what i
ated from information or belief merely. An unqualified statement c
fact shall be considered as made from his personal knowledge.

§ 148 [175]. Verification of answers. — Answers to such interrogatorie
tail be verified by the affidavit of the party answering, to the effec
at the statements in them made of his personal knowledge are true
id those made from the information of others he believes to be true.

Answers of a party to interrogatories can not be read as a deposition in his beha
less "authenticated in the manner required by the Code." 1 Met., 585.

§ 149 [176]. IV/ien party may be compelled to testify in court. — If
irty reside within twenty miles from the place in which the action ma
; pending, he may be summoned by the adverse party, and be con
*lled to testify on the trial of an ordinary action as any other witness

See (i 606) Act February 23, 1898, subsec. 8.

§ 1 50 [177]. When claim sustained for failure to answer interrogatories
a party, filing interrogatories, file an affidavit that he verily believe



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OVISIONAL REMEDIES — ARREST

of the interrogatories is in the
f % and that his answers thereto,
claim or defence, or any part t
after reasonable time, to ansv
art thereof mentioned in such a

Court may compel answers. — '
rogatories by process of contt
rty to answer them, after reasc
e out the pleading of a party a



TITLE VIII.

PROVISIONAL REMEDIES

\ I. Arrest and bail.

2. Claim and delivery of perse

3. Attachment.

4. Injunction.

5. Receivers.

6. Deposit in court.

CHAPTER I.

ARREST AND BAIL.

1. When and Jww an order of

2. Proceedings upon an order c

3. Liability and discharge of I

4. Motion to vacate an order

ARTICLE I.

AND HOW AN ORDER OF ARREST MA\

may be held to bail.

rrest, manner and grounds of obtaining

not to issue until bond is given.

form and requisites of.

when returnable.

Defendant may be held to bail.-
ested and held to bail only up
rribed in this chapter.



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188 PROVISIONAL REMEDIES — ARREST AND BAIL. [TITLE V

See §§ 237 to 248, as to arresting debtors in actions brought before maturity of
debt.

§ 153 [180]. Manner and grounds of obtaining order of arrest. — i
order for the arrest of the defendant shall be made by the clerk of t
court in which the action is brought or pending, at its commencemei
or any time before judgment, if an affidavit (a) of the plaintiff be fil
in his office showing —

1. The nature of the plaintiff's claim.

2. That it is just.

3. The sum or value, which the affiant believes the plaintiff ought
recover.

4. That the affiant believes, either that the defendant is about
-depart from this Sate (b), and, with intent to defraud his creditors, 1
concealed, or moved from this State, his property, or so much there
that the process of the court after judgment can not be executed ;
that the defendant has money, or securities for money or evidences
debt, in the possession of himself, or of others for his use, and is abc
to depart from this State without leaving property therein sufficient
satisfy the plaintiff's claim (c).

(a) An order of court, sustaining an order of arrest made by the clerk before the fil
of the requisite affidavit, Is a judicial error, and not a clerical misprision. 6 Busk, 514

(b) The intention of a resident of this State to leave it, temporarily, on business, with
intention to return, does not subject him to arrest. 2 Bush, 130.

(c) The defendant was arrested upon an affidavit that he was " about to depart fi
this State, without leaving property therein sufficient to satisfy the plaintiff's claim " — v
$500. It was proved that the defendant, though about to leave the State, had on depc
in a Kentucky bank, good cash notes amounting to at least $20,000, and stock, of the vt
of $1,300, in a turnpike company. The court said : «* Whether the evidences of d
deposited in the bank should be regarded as property within the meaning of the C
[or not], we are satisfied that the turnpike road stock should be." 5 Bush, 455.

§154 [181]. Order not to issue until bond is given. — The order
arrest shall not be issued by the clerk until a bond is executed in \
office with good sureties, to the effect that the plaintiff shall pay
the defendant all damages which he may sustain by reason of the aire
if the order be wrongfully obtained, not exceeding double the amount
the plaintiff's claim stated in the affidavit.

§ 155 [182]. Form and requisites of order. — The order of arrest s\
be addressed and delivered, with a copy thereof, to the sheriff. It s\
state the names of the parties to the action, the court in which 1
action is brought or pending, and the amount of the plaintiff's cla
specified in the affidavit ; and shall require the sheriff to arrest 1
defendant, and hold him to bail in the sum of the plaintiff's claim, w
the probable costs of the action, not exceeding twenty-five dollars, a



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>CEEDINGS UPON



>f the order on a
be taken.
Vhen order returtu
t the commencenr
mons; if issued
n of the plaintiff.

ARTI

PROCEEDINGS UPON

executed.

> be committed unless
lay deposit money in
e paid by sheriff into
rt to make orders for i
ial liability of sheriff
r of giving,
rations of.
ff 's objections to.
ition of officer, for ta
eased, because adjudg
debtor from executic

How order execu
arresting the def

Ronald, 6r»r., 3 Bush,
■est during the night.

defendant to be com
ill be committed h
tx of arrest being
:pt in custody in
int taken in exc
arged in the mod<

', cA. 38, art, 3, and a

deposit of money i%
iving bail, depos
money mentions
•ged, or his bail,
deposit to be paid I
t the money recc
ay of the next tei
"> the court imme<



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I9O PROVISIONAL REMEDIES ARREST AND BAIL. [TITLE VII



§ 161 [188]. Court to make orders for keeping of — The court shall mak
proper orders for the safe-keeping of money deposited in lieu of bat
It may direct the sheriff to keep the money, and, after judgment in th
action, shall order it to be paid to the party entitled thereto, accordin
to the result.

§ 162 [189]. Liability of sheriff for deposits. — Money deposited i
the hands of the sheriff, in lieu of bail, or directed by the court to h
kept by him, shall be held upon his official responsibility ; and he an
his sureties shall be liable, and may be proceeded against, for any defau
in relation thereto, as in other cases of delinquency.

Liability of sheriff's sureties, for money deposited in lieu of bail, is, I, that the sheriff sha
account for the money to the court ; 2, that he shall keep it, if directed to do so by tt
court. They are not responsible for his conduct under an order of court directing him I
lend the money. Sanders v. Parrott, 1 Duv., 292.

§ 163 [190]. Bail-bond. — Bail may be given by the defendant on hi
arrest, or at any time afterward before judgment, upon giving bond wit
good surety to the plaintiff, in the presence of the sheriff, or of th
jailer if the defendant have been committed to jail, to the effect thai
if judgment shall be rendered in the action against the defendant, h
will render himself amenable to the process of the court thereupon (a
The bond, when accepted, shall be returned to the clerk's office (b), an
the defendant shall be discharged (c).

(a) A bond, that the defendant "will render himself amenable to the court thereupon,
omitting the words "process of," Is valid (3 Met., 339); but a bond, that the defendai
" will perform the judgment in the action," was held to be void (I Met., 384) ; and so w
a bond, that defendant will "render himself amenable to the process of the court," an
also, that he will "perform the judgment of the court:" "the additional covena
required by the officer can not be regarded as mere surplusage." 13 Busk, 195.

{6) Sheriff's failure to return bond to clerk's office does not affect the rights of tl
obligee. 2 Met., 490.

(e) As to some requisite allegations, in an action on a bail-bond, see Jones v. Bun
2 Met., 490.

§ 164 [191]. Qualifications of bail. — The bail must be a resident c
this State, and be worth double the sum specified in the order of arres
beyond the amount of his debts, and have property in this State, sul
ject to execution, at least equal in value to that sum. If two or moi
become bail, they must, in the aggregate, possess those qualification
The bail, if so required by the sheriff, shall make affidavit of the
qualification before him.

§ *65 [192]. Objections to bail. — Objection to bail, for insufficiene
may be made in court, during the term at which the bail-bond is returne<
and not afterward, unless the bond be returned within the last three da]
of the term ; in which case, the motion may be made on the first d*



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CHAP. I.] LIABILITY AND DISCHARGE OF BAIL, AND OF OFFICER, I9I



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.

§ 166 [193]. Exoneration of officer. — If the motion be not made, or
the bail be not thereupon adjudged insufficient, the officer shall be ex-
onerated from liability by reason of the. insufficiency of the bail.

§ 167 [194]. Bail not released because adjudged insufficient. — Judg-
ment that bail is insufficient shall not release them, but an order shall
forthwith be made to re-arrest the defendant ; and, thereupon, the same
proceedings may be had, and with the like effect, as are directed upon
an order of arrest.

§ 168 [19S]. Discliarge of debtor from execution. — 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 pro-
ceedings 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 exe-
cutions may be issued against the body of the defendant (a) ; 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 surrendered,
although said schedule may not have been delivered ten days before the
taking of such oath. This exception shall also apply to § 158 of this
Code.

{a) See General Statutes, chapter 58.

ARTICLE III.

LIABILITY AND DISCHARGE OF BAIL, AND OP OFFICER.

{ 169. Bail, surrender of defendant by.

} 170. arrest of defendant by.

\ 171. liability of, how fixed.

{ 172. action against.

1 173. exoneration of.

1 174. liability of officer as, for escape, &c.
{ 175- bow fixed.

3 176. liability of, to officer.

§ 169 [196]. Surrender of defendant by bail. — A surrender of the
defendant to the sheriff of the county in which he was arrested, with 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



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g2 PROVISIONAL REMEDIES ARREST AND BAIL. [TITLE VIC

he bail a written acknowledgment of the surrender, and commit th
lefendant to the jail of his county, with his order indorsed upon th
opy of the bail-bond delivered to the jailer

§ 170 [197]. Arrest of defendant by bail. — For the purpose of sui
endering the defendant, the bail may, at any time or place, arrest him
>r authorize, in writing, indorsed upon a copy of the order of arres
tnd bail-bond, the sheriff or any. constable to do so.

§ 171 [198] Fixing liability of bail, — A return of "not found " upo
in execution against the body of the defendant, placed in the hands
he sheriff of the county in which he was arrested, within twenty day
liler it might have issued upon the judgment, shall be necessary to fi
he liability of the bail, which shall be, to pay the amount of the jud{
nent and costs.

To fix the liability of bail, the Code requires that an execution against the body of ll
lefendant shall be placed in the hands of the sheriff within twenty days after such ex
ution may be issued ; but does not require a return of the execution within twenty da
iter the judgment, nor within twenty days after the execution is issued. Allcorn v. Tu
fU, 3 Met., 537.

Nor does a return of " not found," made before the return-day of the execution, relea
he bail. Jones v. Bunn, 2 Met., 490.

An execution commanding the sheriff to take the body of the defendant, to satisfy ai
>ay the Commonwealth of Kentucky the sum of $125, adjudged, not in favor of the Comma
vealth, but IN FAVOR OF A; and a return of "not found" upon the execution, did n
ix the liability of bail. Abbott v. Daniel, 3 Met., 339.

The liability of bail, when fixed in the mode prescribed by the Code, is for the jud
nent and costs, without regard to the solvency or insolvency of the principal. Abbott
Daniel, 3 Met., 342.

§ 172 [199]. Action against bail. — The bail can be proceeded again
in a separate action only.

§ 173 [200]. Exoneration of bail. — He will be exonerated by tr
death of the defendant, or his removal from this State under process <
[aw as a fugitive, before the return-day of the summons served upc
the bail in the action to enforce his liability ; or by the imprisonment <
the defendant in the penitentiary ; or his legal discharge from the ob
gfations to render himself amenable to the process of the court ; or \
his surrender to the sheriff of the county in which he was arrested
execution thereof, on or before the return-day of the summons in tl
action against the bail, or within such further time as the court, in whi<
the action is pending, may allow. If the defendant be confined in ai
jail of this State, the bail will be exonerated by delivering to the jail
thereof, at any time before the return-day of the summons in the acti<
against the bail, a certified copy of the order of arrest and of the ba
bond, with a written order thereupon to detain the defendant in custod
until discharged by law from the action in which the bond was give



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[OTION TO VACATE AN ORDER OF ARREST. I93



give a written acknowledgment of the receipt of the
til be filed with the original bond.

Officer's liability for escape. — If, after being arrested,
without fault on the part of the sheriff, be rescued, or
>e not taken or be adjudged insufficient, or a deposit be
lieriff shall be liable as bail, unless he shall have com-



Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 30 of 142)