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of another warrant pending for the same cause of action, the prosecutor may be req
to elect between them. 1 Dana, 227.

5. A writ is not barred by a judgment dismissing a defective writ, /fame/ v. Law
I Mar., 330.

§ 458 [506]. Coercing witnesses to attend, &c. — The judge or
justice of the peace may issue subpoenas for witnesses at the req
of either party, and their attendance and testifying may be coerce*
the justice or judge who presides at the inquest.



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FORCIBLE ENTRY AND DETAINER. 345

|. Inquest and judgment. — The jurors, after hearing the
, by their inquest, say whether the defendants, or either
uilty or not guilty of the forcible entry or detainer com-
d shall return their inquest, signed by one of their body,
:>f the peace or judge who presides. If the jury do not
^e discharged and another be ordered to be summoned
\x immediately, or at some future day to be then and
d indorsed on the warrant ; and this proceeding shall be
I a jury agree.

. Upon the return of the inquest, the judge or justice
judgment according to the inquisition, either for the
stance, that he have restitution of the premises aforesaid,
the defendants his costs in this behalf expended ; or for
>, in substance, that they recover of the plaintiff their
;half expended ; or for the plaintiff against some of the
i for the other defendants against the plaintiff, if some be
id others not guilty.

>on a writ of forcible entry relates, not to the title, but to the possession,
, whether legal or equitable, is generally inadmissible (Mansfield v.
2; Smith, &*e., v. Dedman, 4 Id., 192) ; though it is admissible for the
ig the existence or extent of a party's possession (Beauchamp v. Morris,
v. Chiles, 2 Dana, 29; Baird v. Bell, I Duv,, 384), which may be done,
1 was in possession at the time of the party's entry, as well by proving
deed which did not, as by proving his entry under a deed which did,
nas v. Harrow, 4 Bibb, 563 ; Young v. Withers, 8 Dana, 165 ; Beeler v.
; McLawrin v. Salmons, II Id., 96) ; or for the purpose of showing that "
ion of the land in controversy, though uninclosed, by reason of his having
al possession of land adjoining it. Grughler v. Wheeler, 12 B. M., 183 ;
4 Bibb, 257; Braxdale v. Speed, I Mar., "105 ; Jones v. McCawle^s heirs,

rt of equity interfere in behalf of a legal owner who has obtained pos-

jful entry. Hamilton v. Hendrix % s heirs, I Bibb, 76.

gainst whom the prosecutor is not entitled to recover, is joined in the

for non-suit. Alexander v. Reed & Myers, 3 Mon., 246.
fie jury, " the defendants not guilty," is sufficiently explicit. Belcher v.
►7.

?454-

|. Restitution or execution for costs. — If the party against
uisition is found fail to file a traverse of the inquisition
or justice who presided, on or before the third day after
the inquest, the judge or justice shall, on request, issue
for the costs ; and, if the inquisition be in favor of the
all also issue his warrant of restitution in substance as

County. To the Sheriff [or any Constable'] of

;as, C D and E F have, by an inquisition taken before



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46 PROCEEDINGS IN CERTAIN ACTIONS. |

ie, J P, a justice of the peace for said county, been found guil
>rcible entry in [or detainer of] one house and field, lying

raters of , in the county aforesaid [or other general des<

f the possessions], to the injury of A B: You are, therefore,
ame of the Commonwealth of Kentucky, commanded that, w
ower of the county if necessary, you put the said A B in t

*ssion of said premises ; and make return within days

ow you have executed this warrant. Given under my hand th
ay , ,J. P."

Judgment upon the inquisition must be enforced unless a traverse be filed wit
ays after the finding, although a traverse-bond may have been executed within 1
Bush, 553-54-

§ 462 [510]. Preservation, &c. t of papers. — The judge or jus
ie peace shall carefully preserve all papers, records, and procc
slating to the cause, unless he transmit them to the clerk as her
irected; and shall deliver to any person requiring it a tn
tiereof, such person paying him therefor two cents for every
rords in such transcript.

§ 463 [5 1 1]. Traverse and bond. — If either party conceive
^grieved by the finding of the jury (a), he may file a traverse (b)
ith the judge or justice, within three days next after the findini
ud, in substance as follows: " A B against C A on a writ of
rtry [or detainer]. The plaintiff [or the defendant] says that
uisition returned in this cause is not true; wherefore, he pra
roceedings thereon maybe stayed until the same can be tried ac
) law. AB;" and shall also, within the same time, before saic
r justice, give bond with sufficient surety (c) $ to be approved
udge or justice, to his adversary, in substance as follows: "
r D, on a writ of forcible entry [or detainer]. Whereas, upon a
>rcible entry [or detainer] in favor of A B against C D, tried

, a justice of the peace of county, a verdict was rend<

ie said A B, on the day of , which the said C

-aversed (d) ; the said C D and E F, his surety, covenant to
ie said A B the costs of said proceeding and all damages (e)
} him by said traverse, if not prosecuted with effect: " whereup
udge or justice shall stay all further proceedings. on the inq\
nd return the whole of the papers and proceedings, or a fair tr;
hereof (/), to the office of the circuit court for said county, wil
ays thereafter (g).

{a) The want of a judgment on the verdict is not ground for dismissing a trs
fet. y 308.

{b) He need not sign the traverse. I Mar., 54.



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FORCIBLE ENTRY AND DETAINER. . 347

tecuted by the surety, .though not by the traverser, is sufficient. 3 Bibb % 188.
ition in the circuit court of a new bond, with other surety, the traversee
t release the surety in the first bond. 2 Mar,, 518; I IMt., 156.
raverse, the justice stay proceedings, and return a bond, it must be pre-
>ond was executed before and approved by him, though he omit so to
75; I Mar., 342.

se-bond be defective, the circuit court may allow a new and sufficient
[, as is authorized by § 682 of the Code. 79 Ay., 259-60.
* v. Taylor, 1 Dana, 527, it was held that this recital in a bond estopped
Lenying that he had traversed the rinding ; and that, the bond having
1 and returned to the circuit court, that court, " in the absence of proof
. . should have presumed that all things were rightly acted, that a
filed with the justice, although not returned, and should have suffered
plied by filing another nunc pro tunc;" but, if it be proved that no
within three days after the finding of the jury, the circuit court must
, although a traverse-bond may have been executed within the proper

ond is insufficient ; but under \ 682 of the Code, a new bond may be

cuit court. 79 Ky., 260.

jinal writ be returned to the circuit court and lost, the justice may

rn or certified copy. 2 Mar,, 53.

ion as to returning the papers, &c, within ten days, is merely directory

his failure to comply should not prejudice the parties. I Dana, 527-28.

]. Liability on traversed-bond. — Upon this bond, if the
) prosecute his traverse with effect, he and his surety shall
the damages for withholding the possession which the
be entitled to recover against the traverser, during the
le traverse, either in the circuit court or Court of Ap-
is the reasonable expenses of the traversee in defending

. Tried of traverse, — The clerk shall docket the traverse
s ; it shall stand for trial as docketed (a) ; the traversee
on the traverse (b) ; and it shall be tried by a jury, and
n on the verdict (^r), as in other cases: Provided, however,
erein contained shall be construed to prevent the court
Igment against either party for default, nor from deciding
f law as in other cases (d),

)peal from a justice of the peace, the same action may be tried anew,
can be tried. 3 Met., 79. The same rule applies to a traverse. The
>t be amended by introducing new plaintiffs. 1 Duv., 151.
:akes issue on the truth of the inquest, and is a virtual waiver of objec-
> informalities of the judgment of the justice, and irregularities in the
\ him, not affecting the merits of the case. 2 Bibb, 431-32; 1 Mar.,
; I Dana, 227, 468.

rerse, proof that the warrant was obtained without authority from the
nissible. 5 Dana, 382.

erse, though by the defendant, the burthen of proof is on the prosecutor
*ris, 4 Bibb, 312) ; and he shall have restitution according to the proof,



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348 PROCEEDINGS IN CERTAIN ACTIONS. |



though it be for less than he demands, and less than the jury in the country gave
Mar,, 164; I Afon., 38; 2/./. Af., 183.

4. Upon a traverse, the defendant can not be found guilty of a different offe
that of which he was found guilty by the jury in the country (Cammack v. Afacy,
297; Sinclair v. Sanders, 3 J. J. Af., 303); nor can the defendant be found guill
offence upon the traverse of an inquest which failed to find him guilty of any
thus, upon a warrant for a forcible detainer, the jury in the country, instead of fir
defendant guilty of the detainer, found "the right of possession in the" prosecu
a verdict, upon the traverse, that the defendant was guilty of the forcible detail
plained of in the warrant was held to be void. Todd v. Bates, 3 Bibb t 100 : a
B. Af., 238.

5. See note (c) 2 to § 454.

(c) 1. Judgment of restitution maybe given against persons engaged in ma
unlawful entry, but who did not detain the premises afterward* as well as agaii
who continued in the occupation of them. Young v. Ringo, 1 Litt., 225.

2. A judgment, '* that the traversee have the benefit of* the writ of restitutio
held to be equivalent to a judgment "for restitution of the premises in the warn
tioned." 3/. /. Af., 167-68.

(d) 1. In Dibble v. Porter, 1 Duv., 190, it was held that, though the traversee
the prosecutor) had failed to "join issue on the traverse;" yet, as the traverser
appear on the calling of the cause, the traversee was entitled to a judgment by de
the possession of the premises.

2. The court may quash a defective warrant at any stage of the trial. I Duv
Bush, 239-40.

§ 466 [514]. Execution from circuit court, — After a cause is retu
the circuit court, execution for cost, or for restitution, shall issu
the office of that court, according to the judgment in the cause.

An order restraining restitution should not be made because the defendan
covered a judgment in ejectment against the prosecutor. Dedman v. Smith, 2 M

§ 467 [515]. Restraining waste, &c. — The court before whor
cause may be depending, or any judge thereof in vacation, may 1
waste or destruction of the premises, and may enforce its order
and imprisonment or either.

§ 468 [516]. Proceeding does not bar action for trespass, &c. — Tl
ceedings under a writ of forcible entry or detainer shall not bar an
for trespass or waste or rent or mesne profits.

§ 469 [517]. Limitation, — No inquisition of forcible entry or I
detainer shall be taken at any time after two years from the (
entry or detainer complained of.

This section, like \ 15 of the act of 1810, speaks of the taking of the inquisition
of the commencement of the proceeding, with respect to limitation. Suppose that the
should be issued, and notice thereof given, within two years after the making of th<
entry, or after the commencement of the forcible detainer, but that more than t
should have elapsed before the taking of the inquisition ; would the prosecution t
by limitation? In view of Humphrey v. Jones, 3 Afon., 261, and Mason v. E
B, Af., 269, and of the subsequent re-enactment of said provision by the Code,
clear that it would not be barred. But see Humphrey v. Jones, 3 Afon., 263.



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PROBATE OF WILLS — ACCOUNTS OF FIDUCIARIES. 349

CHAPTER IX.

PROBATE OF WILLS.

ons of General Statutes adopted, concerning.

>]. The provisions of §§ 26 to 42, both inclusive, of chap,
eneral Statutes [§§ 4849-4866, Ky. Stat.'] , regulating the
Us, are adopted as part of this Code.

CHAPTER X.

:nt of the accounts of fiduciaries by the county court.

ions of General Statutes adopted as to personal representatives and guard-
ins.

rovisions made applicable to committees and trustees.

]. The provisions of art. 14, chap. 28, of the General Statutes
7, Ky. Stat.~\ t regulating the settlement of the accounts of
esentatives and guardians, are adopted as part of this Code.

n may maintain an action in equity against a former guardian for settle-
mts, notwithstanding a reference of them to a commissioner by the county
vealthfor Hooper v. Ifenshaw, 2 Bush % 286.

having certified that a copy of a settlement was a true copy of settlement
Mercer county court, which is on file in this office," the copy was held to
dence, though the settlement purported to have been made with the pre-
aid court. McAfee v. Balden, 6 BusA, 537.

]. Settling accounts of committees and trustees. — The ac-
nmittees and trustees may be settled in the same manner,
jments shall have the same effect, as prescribed by § 471.
ourt of the county in which the committee is appointed,
le deed or will creating the trusts is recorded, shall have
>n of making the settlements.

after, when the court may so direct, settlements of the ac-
r sonal representatives, trustees, guardians, or other fidu-
>efore a commissioner of any chancery, common pless, or
of this State, and reported by such commissioner, and all
tates or funds received or disbursed, under order of the
receiver, after the same shall have been confirmed by the
e recorded by the clerk of such court in a book to be pro-
purpose. The vouchers accompanying such settlements
ill not be recorded.

of such court shall be entitled to the same fees allowed by
of the county courts for similar services,
issioner or receiver of the court making such settlement or
How, and state on the face thereof, the amount of fees that
\ the clerk for recording. {Act April 25, 1884.)]

was created by will recorded in H county, the B circuit court had no ju-
ction in equity to settle the trustee's accounts. 85 Ay., 35.



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350 PROCEEDINGS IN CERTAIN ACTIONS. [1

CHAPTER XI.

CAVEATS.*

§ 473. Provisions concerning.

§ 473 [522]. I. If any person obtain a survey of land to which a;
claims a better right, such other may enter a caveat with the Regi:
prevent the issuing of a grant until the right be determined (a).
caveat shall state the plaintiff's claim and the reasons why the
should not issue {b). It shall be verified by his affidavit, or by t
his agent (c) t and declare that it is entered in good faith, with t
tention of procuring the land for the plaintiff, and not for the ben
the person against whom it is entered.

2. A copy of the caveat, certified by the Register, shall, '
sixty days from the time it is entered, be lodged with the clerk <
circuit court of the county where the land or the greater part tl
lies. Failure so to lodge such copy shall be deemed an abandonm
the caveat ; and it may be disregarded by the Register, upon the (
certificate of such failure being filed in his office.

3. If such copy be lodged within said period, it shall be treate
petition, and the proceedings upon it shall be the same, includii
appeal to the Court of Appeals, as those in an prdinary action (d)

4. If the summons be not returned in due time, or be returnc
executed, the caveat shall be dismissed, if it be shown that the
execution or non-return was procured by the plaintiff or resulted
his neglect.

5. A copy of the judgment, if in favor of the defendant, mi
delivered into the Land Office within three months from the tim
rendered ; or a new caveat may, for that cause, be entered again
grant. If the judgment be for the plaintiff, and a copy thereof t
delivered into the Land Office within six months from the time
rendered, any other person may, for that cause, enter another <
against the grant.

6. No grant shall issue, to the land in contest, to the plain
the caveat, or to another for his use, until the caveat be dismissed
cided (e) ; and any such grant, to the extent of such land, shall be

7. If the plaintiff do not prosecute his caveat as herein requir
if the same be dismissed or decided against him, neither he nc
other for his use shall have another caveat against the same grant.

8. The court may, in its discretion, require the plaintiff tc
security for costs ; and upon his failure to do so may dismiss th<
ceeding.

*See Acts of 1796, &c, M. & B. t 278.



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:AVEATS— WRITS OF MANDAMUS AND PROHIBITION. 35 I

vey of unappropriated land gives to the party for whom it is made a right
ugh the survey has not been registered ; and the statute prohibits a grant to
til the caveat is disposed of {Davis v. Stafford, 8 B. M., 274); and it was
it by an act of the legislature of an exclusive right to appropriate certain
certain time, and upon certain conditions, gave to the grantee a right to a
jantime. Patterson v. Trabue, 3 /. J. Af., 598.

o not apply with reference to lands which have been granted by the Corn-
to such lands, the party's remedy is an action in equity, if he has an

Preston v. Preston , 85 Ky., 16.
o lands which have not been granted by the Commonwealth, the filing of a
exclusive remedy: omitting to file it does not prevent the party from going
ave the titles tried there. Crow's heirs v. Harrows heirs ; Hardin, 438.
ial, the plaintiff can only rely on the claim stated in his caveat. Justises^
Mar., 30.

le act of 1796, an agent's affidavit was not sufficient. 2/./. M., 25.
plaintiff's right to recover depends on the strength of his own title, not on
his adversary's. Hendricks v. Bell, I Bibb, 138; 2 Mar., 31 ; 3 /</., 131.
of an act of 181 1 (Af. <5r» B., 281) declared that trials of caveats should be
i equity ; " and it was consequently held that no bill of exceptions was
ke exhibits and depositions parts of the record. 3 Litt., 259. But under
le proceedings shall be "as in an ordinary action," the provisions as to
exhibits in which need not be repeated here.

proper to call attention to two distinctions between former statutes and
he act of 1796 (Af. <5r» B., 279) provides that, unless a certified copy of the
t with the clerk of the proper court, within a prescribed time, *« such caveat
id;" whilst the Code (§473, subs. 2) provides that "failure so to lodge such
»emed an abandonment of the caveat ; and it may be disregarded by the
, 2, the act of 181 1 (Af. &* B., 280) prohibited the issuing of a grant to the
veal "until such caveat shall be dismissed, decided, or determined ; " whilst
, subs. 6) prohibits such issuing "until the caveat be dismissed or decided."
Curds, 4 Bibb, 547, it was held that a caveat was "determined" by the
e to lodge a copy of it with the clerk within the prescribed time; and that
issuing of a patent to him was not prohibited by the statute. I am not
:cision as to the effect, if any, of the above named changes.



CHAPTER XII.

WRITS OF MANDAMUS AND PROHIBITION.

of, how obtained and prosecuted.

court to cfecide all questions upon : order final,
may make preventive orders,
amus defined.

ion wealth may appeal without security,
bition defined.

53]. How writs obtained and prosecuted. — Writs of man-
ccept those used by a court for enforcing its judgments or
rats of prohibition (&), shall be obtained by motion (c), and
1 the manner provided in Title X, chapter 5, except that
t shall file a petition, wherein he shall state the cause and
23



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OCEEDINGS IN CERTAIN ACTIONS. [TIT!



tion before giving notice of his motion ; to wl

om the mandamus or prohibition is sought s

answer, at or before the time fixed for mat



now, as formerly, a high prerogative writ, emanating froi
but it is a statutory writ, or order of a court of competent

ise, is to be granted on the motion of any party aggrieved.

emptory, and not an alternative, writ. Cumberland & Oh

Washington County Court, 10 Bush, 564.

:tic6 concerning the granting of writs of prohibition,

a mandamus on the day mentioned in the notice is a waiv
der that notice. 14 Bush, 291.
ns for mandamus.

on every application for a mandamus that it is the legal du
which it is sought to compel him to do, and that he has,
to perform that duty;" (14 Bush, 645; 83 Ay., 460) ; but
I in terms is not necessary to put the party in. fault. It wi
nakes it apparent that he does not mean to do the act requi

r demur to a petition which does not state a cause of acti
mi answer he waives the right to object to the want of lega

14 Bush, 291.
controvert the defendant's answer and introduce proc

1st a city for a mandamus should properly be against th<
regarded though it be nominally against the "mayor am
juncil," or against "the city council; " and is is not abafc
» of the corporation : it does not assume the character ol
s individually until it becomes necessary to enforce the judg
tachment. City of Louisville v. Kean, 18 B. Af., 13; Modi
ji ; and so as to proceedings against an examining boar

mandamus to compel the Auditor of the State to issue a ws
ation and the appointment of his successor. 3 Bush, 235.
in not enjoin an officer from doing an act which a court o
, required him to do. Cumberland and Ohio R. /?. Compa
m County Court, IO Bush, 564.

risdielion to award a mandamus, though it may err in doii
amus is a contempt of court, which justifies the imprison
n is maintainable for such imprisonment. 18 B. M., 847.
idamus, to compel the county court to levy money and pj
:r-claim can not be set up by the county court to recover n
as a defence, a defective performance of the work may be i
in ty court should not pay for the work done. 18 B. A/., 8
a motion for a mandamus against an (election) examining 1
issembling of the board, in order that the contestant may
requisite notice. 7 Bush, 531.

litable rule, that "he who seeks equity must do equity," a]
nus ; and, consequently, that, independently of any statutt



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354 PROCEEDINGS IN CERTAIN ACTIONS. [TITLE 3

porations, and against judicial officers acting ministerially, not only to compel them to ac
but to compel them to act in a specified manner, as to matters concerning which they ha**
no discretionary power; as, to compel a city to repair streets (3 Afet., 494; 13 Bush y 334)
to compel city or county authorities to levy taxes for the payment of ascertained debts o
the city or county (11 B. Af., 154; 18 Id., 852-53; 2 Afet., 64; 3 Bush, 144; 8 Id., io€
14 Id., 294; 84 Ky., 36) ; to compel the Auditor of the State to draw a warrant for
debt due from the Commonwealth {Auditor v. Adams, 13 B. Af., 150; 3 Bush, 231 ; 4 Id
490; 14 Id., 284 ; 80 Ky., 336; 86 Id., 23) ; to compel a county court or judge to qualif
a sheriff or jailer (4 Met., 236; 2 Duv., 243) if the applicant be constitutionally eligibl
and otherwise entitled to the office (Atchison v. Lucas, 83 Ky., 451 ; Lowe v. Phelps, 1
Bush, 642) ; to compel a county court clerk to record a deed (S^ Ky., 361) ; to compi
action, as to elections, by an examining board or board of contested elections (1 Afet
533 J 7 Busk, 523) ; to compel the State Board of Pharmacy to enter a (female) "graduat
in pharmacy " as a registered pharmacist (84 Ky., 626) ; and to prevent the recording o
a vote upon a "local option" law, if it be unconstitutional. 83 Ky., 61.

But mandamus does not lie against a county court to compel payment of an unliquidate
demand (1 1 Bush, 239-40) ; and an ex parte order of the circuit court allowing a claim o
jail-guards, to be paid by the county court, being only prima facie evidence of the sum due
mandamus does not lie to compel the county court to make a levy therefor (2 Bush, 108)
nor does mandamus lie, under the Code, against a private corporation. 9 Bush, 541 ; 8
Ky., 490.

§ 478 [527]. Appeal by tlte Commonwealth. — If an interest, right, o
claim, of the Commonwealth be affected by the final order on an appli
cation for a writ of mandamus, ^the Attorney General may prosecute ai
appeal without security.

§ 479 [528]. Prohibition defined. — The writ of prohibition is an orde
of the circuit court to an inferior court of limited jurisdiction, pro
hibiting it from proceeding in a matter out of its jurisdiction.

I. A writ of prohibition can not issue from the Court of Appeals (5 Dana, 20; \\



Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 49 of 142)