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principal, and the defendants, G. H. and I. J., as his sureties, subscribed a bond dated

the .... day of , which was approved by said court and attested by its clerk, and

which is in his office [and an attested copy of which is filed herewith {e) ], and by which
they covenanted to and with the plaintiff, the Commonwealth of Kentucky, that the said

E. F. would well and truly administer the goods, chattels, credits, and effects of the said
C. D. according to law, and would make a just and true account of all his actings and
doings therein, and would well and truly make a just and proper distribution of any sur-
plus money, effects, and rents that might come to his hands, or to any one for him, by
color of his office, to the persons entitled thereto (d) ; that the plaintiff, A. B., and his
brothers, L. M. and N. O., were the only children, and are the sole distributees of the

said C. D. ; that, on the .... day of , the said E. F., as administrator as aforesaid,

was indebted to the said distributees in the sum of dollars, for money and the pro-
ceeds of personal property of the said C. D., as is shown by a settlement made by said E.

F. with said county court on the .... day of , and by it approved and ordered to

be recorded, as appears of record in said court ; and that, on the .... day of , the

said A. B. tendered to said E. F. a bond, with good sureties, covenanting that the said
A. B. would refund to said E. F., administrator as aforesaid, the said A. B.'s due pro-
portion of any debts or demands which might afterward appear against the said C. D.,
and the costs attending the recovery of the same(i), and requested the said E. F. to pay

to the said A. B dollars (being one-third of the aforesaid sum of ... . dollars) (/) ;

but that neither of the defendants has paid to said A. B. any part of said money or any
interest thereon.

Wherefore the plaintiffs ask for a judgment in favor of the said A. B. against the
defendants for dollars and interest thereon from [the date of tendering the refund-
ing bond and requesting payment] and costs [and any other relief the said A. B. may
appear entitled to].

(Verification as in Form 1.) S. T., Attorney.

(a) 1. As to joining the distributee and the Commonwealth as plaintiffs, see note(<") to
form 17, a.

2. A distributee can maintain an action at law against the administrator and his sure-
ties (or against the sureties, Code, §27), without having obtained a judgment against the
administrator. G. S.. eh. 39, art. 2, #9, and eh. 81, §9; 2 Bibb, 292-93, referring to J J*
of act of 1797, M. & B. % 663.

3. Though co-distributees must join as plaintiffs in an action in equity against an ad-
ministrator, for a settlement of his accounts and distribution, or must make those refusing
to join defendants in the action {Wilkinson v. Perrin, 7 Afon. % 214; Duncan v. Mhner %



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PETITIONS ON WRITTEN CONTRACTS. 523

&V., 4 J.J. M., 443), they can not join in an action at law on the fiducial bond. 7 Bush,
513; SJJM.,2S6.

4, This action must be brought in the county in which the administrator was qualified.
Code, i 66.

(4) See Code, \ 122.

(c) See note (a) 2 to Form 17, a.

(d) See G. S., cA. 39, <«*. 2, #9, 10.
(4 See G. £., <*. 39, «rf. 2, J 11.

(/) See 2 Z&f., 346; 2 /./. M„ 202; 4 /</., 5a

c. Petition on guardian's bond.
(Caption as in Form 17, a.)

The plaintiff, A. B., and the Commonwealth of Kentucky suing for the benefit of said
A. B., say that the defendant, C. D., having been appointed guardian of the plaintiff, A.
B., and of his brothers, L. M. and N. O., by an order duly made (a) by the county court
of Lee county (b), the said C. D., as principal, and the defendants, E. F. and G. H., as
his sureties, executed a covenant to the plaintiff, the Commonwealth of Kentucky, dated

the .... day of , which was approved by said court [and an attested copy of which

is filed herewith {c) ], and in which it was recited that the said C. D. had been appointed
guardian of the plaintiff and of said L. M. and N. O., and was covenanted by the defend-
ants that the said C. D. would faithfully discharge the trust as guardian aforesaid (d), and

which bond is in the office of the clerk of said court ; that, on the .... day of ,

the said C. D., as guardian as aforesaid, was indebted to his said wards in the sum of

dollars, for money of theirs received by him, with interest thereon from the ....

day of , as is shown by an ex parte (e) settlement made by him with said county

court on the .... day of , and by it approved and ordered to be recorded, as ap-
pears of record in said court ; that on the < . . . day of , the plaintiff, A. B., having

attained the age of twenty-one years, requested said C. D. to pay him dollars

(being one-third of said sum of dollars) and interest thereon from the .... day of

; but that no part of said money nor any interest thereon has been paid to him by

either of the defendants.

[Or, after the words "is in the office of the clerk of said court" — that the plaintiff,
A. B., has attained the age of twenty-one years, and that the said C. D. failed to discharge
the trust aforesaid, by failing to collect sundry sums of money due to said wards, and also
by spending and wasting the estate of said wards (/)].

Wherefore the plaintiffs ask for judgment in favor of said A. B. against the de-
fendants for dollars, being one-third of the aforesaid sum of dollars, and

interest thereon from [the date interest is shown to be due by the settlement], and costs,
and any other relief the said A. B. may appear entitled to [or, if the petition adopt the
foregoing bracketed averments or otherwise charge a failure to collect money or wasting
of the estate — wherefore the plaintiffs ask for a judgment in favor of said A. B. against

the defendants for dollars damages and costs, and any other relief the said A. B.

may appear entitled to].

(Verification as in Form 1.) R. S., Attorney.

(a) See Code, § 122.

{b) In Greenly, <5rV., v. Daniels, 6 Busk, 41, it was held that, under §98 of the Code of
1854, which is the same as J 67 of this Code, an action against a guardian for money shown
to be due to his ward by a settlement in the county court must be brought in the county
in which the guardian was qualified; because, said the court, "these settlements being
only prima facie evidence of the balance due to the wards, and subject to revision and
correction by the circuit court, we are of opinion that the relief sought by the plaintiffs
substantially involved a settlement of the guardian's accounts." That reasoning applies,
with perhaps unanswerable force, to a ward's action in equity to surcharge and falsify a
guardian's settlement in the county court: but, 1, though such ex parte settlement is only
prima facie evidence against the wards, it has never been held, so far as I am aware, to
be only prima facie evidence against the guardian ; 2, the wards in Greenly, &*c, v. Dan*



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524 FORMS.

iels, did not seek to surcharge or falsify the settlement, but sued for money which it showed
to be due ; and, 3, the defendants in that case did not allege that there was any mistake
in the settlement. It seems to me that such an action is not embraced by { 67.

(c) See note (a) 2 to Form 17, a.

(d) 1. See G. S., ch. 48, art. I, {3.

2. Wards have no right to join in action at law on the covenant. 5 J. J. M., 286; 7
Bush y 513. In Greenly, <5rV., v. Daniels, cited above, there was no objection for mis-
joinder.

3. As to joining the ward and the Commonwealth as plaintiffs in the action, see. note (e)
to Form 17, a.

(e) The Code (£ 115) declares that "pleadings must be in the English language;" but
many Latin words and phrases have been Anglicized by usage.

(/) 1. These averments were held to be sufficient, in Darland and Bant a v. The Jus-
tices, firV., 4 Bibb, 523; because, said the court, "it is a general rule in pleading, that
where a subject comprehends a multiplicity of matter, there, in order to avoid prolixity, the
law allows of general pleading." But I believe that, under the Code, it would be more
safe, if it is not necessary, to state from whom the money was due, and how the estate was
wasted, &c. See, ante, second paragraph of notes on page 76 ; third paragraph of note
K 4t page 127; and last paragraph of notes on page 148.

2. As to the liability of a guardian and his sureties for waste, see G. S., ck. 66, art.
3,i 6.

3. It seems to me that, if the legislature had intended to require actions against a
guardian, for waste of a ward's real property and for failure to collect money due to the
ward, to be brought in the county in which the guardian was qualified, § 67 of the Code
would have required all actions against guardians to be so brought; and, consequently,
that, even if J 67 applies to an action on a guardian's settlement in the county court, it
does not apply to actions for waste or for conversion of a ward's personal property to the
guardian's use, or failure to collect money due to the ward. But see Stone's adm'r v.
Powell, &c, 13 B. M., 342.

(2) Petitions in actions on official bonds (a).

a. Petition on a constable 1 s bond, for failing to execute a distress<oarrant and failing to colled
claims or pay money collected.

Lee Circuit Court.
A. B., and the Commonwealth of Kentucky,

suing for the benefit of said A. B., Plaintiffs,

against
C. D., E. F., and G. H Defendants.

The plaintiffs, A. B., and the Commonwealth of Kentucky suing for the benefit of said
A. B., say that, on the 1st Monday in August, 1890, the defendant, C. D., was elected to

the office of constable by the people of the justice's district in Lee county, for

the term of two years, commencing on the 1st day of June, 1891 ; that, as appears of record
in the county court of said county, the said C. D. took the official oaths required by law
to be taken by constables, and, on the .... day of , he, as principal, and the de-
fendants, E. F. and G. H., as his sureties, executed a bond bearing that date [or — dated,
Ac], which was approved by said court, to the plaintiff, the Commonwealth of Kentucky,
covenanting that the said C. D. would well and truly execute and return make of all
process and precepts to him directed and to him delivered, and would pay and satisfy all
sums of money by him received upon any such process or precept, or any note, account,
fee-bill, or claim placed in his hands for collection, to the person entitled thereto or to his
order; and in all other things would well and truly execute and perform the said office of
constable during his continuance therein (b), which bond is on file in the office of the clerk
of said court [and an attested copy of which is filed herewith [c) ], and that the said C. D.
entered upon the duties of said office on the 1st day of June, 1891, and the plaintiffs further
say —

1. That, on the .... day of , the said A. B. [or his agent, I. J.] made oath before

L. M., a justice of the peace in and for said county, that N. O. was indebted to the said
A. B. in the sum of dollars for [one year's] rent of premises in said county, pay-
able in money on the .... day of , and thereupon the said L. M. issued a distress-



• Petition.



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PETITIONS ON WRITTEN CONTRACTS. 525

▼arrant directed to the said C. D., constable as aforesaid [or — directed to the sheriff or
any constable of said county] and authorizing him to distrain the personal estate of said

N. 0., for the said sum of dollars, with interest from the [date when the rent fell

due] and costs (d), which warrant was delivered to the said C. D., as constable as afore-
said, on the .... day of ; that, on the .... day of , the said C. D., by

authority and in pursuance of said warrant, lawfully distrained and levied upon [goods

and chattels] of the said N. O. of the value of dollars, in order to satisfy the said

rent and interest and costs ; and that the said C. D. did not sell said [goods and chattels]

nor any part thereof, but [state injury to plaintiff, as that permitted the said N. O.

to remove and dispose of the same and convert the proceeds thereof to his own use, and
that no part of said rent, interest, or costs has been paid by said N. O., and he is insol-
vent [e) ] ;* and that, on the .... day of , the said A. B. requested the said C. D. to

pay him dollars for damages caused by the said C. D.'s failure to perform his duty

as above shown ; but neither of the defendants have paid any part of said damages to the
said A. B. (/).

2. That on the .... day of , the said A. B. placed in the hands of said C. D., as

constable as aforesaid, for collection, as is shown by his receipt of that date filed herewith,
claims on [specify the claims, showing from what dates interest accrued on each], which
were justly due and payable to the said A. B. ; that the said C. D. collected (g) [or —
could, by proper diligence, have collected (h) ] each of said claims, with interest thereon

from the dates above specified, respectively; and that, on the .... day of , the

said A. B. requested said C. D. to pay the moneys collected on said claims [or — to pay

dollars for the damages caused by the said C. D.'s failure to collect said claims]; but that
neither of the defendants have paid to the said A. B. any part of the money collected on
said claims [or — any part of said damages] (*).

Wherefore the plaintiffs ask for a judgment in favor of said A. B. against the defend-
ants for dollars damages (J) and costs [and any other relief the said A. B. may

appear entitled to].

(Verification as in Form I.) S. T., Attorney.

[a) I. As to joining the Commonwealth and the real party in interest as plaintiffs in
such actions, see note (e) to Form 17, a.

2. As to the county in which such action must be brought, see Code, #63, subs. 3.

3. As to motions on bonds of constables and sheriffs, see G. S., ch. 20, art. 4, and ch.
28, art. 17; and Title 10, ch. V, 0/ Code.

(0) See G. S. t ch. 20, art. 1, §| 1 to 3.
\c) See note {a) 2 to Form 17, a.

{d) See G. S., ch. 66, art. 2, §4.

{e). See G. S., ch. 66, art. 2, \ 23 ; Royse v. Reynolds, 10 Bush, 286.

(/) 1. Though, in general, neither a request to pay damages, nor an averment of non-
payment thereof, is necessary in order to maintain an action therefor, such request seems to
be required by G. S., ch. 20, art. 4, § I, in order to maintain an action on a constable's
bond ; and if that i« necessary, an averment of non-payment seems to be necessary.

2. It is clear, at any rate, that, under said statute, an averment of a request to pay
money collected by a constable is necessary ia order to maintain such action (1 Dm'., 24;
2 Bush, 101); but, though, in general, when an actual request is necessary, the averment
"although often requested" is immaterial, such averment has been held sufficient to sup-
port a judgment by default against a sheriff or constable for money collected. See 4th
paragraph of notes, ante, page 74.

{g) Though the constable's receipt, after the expiration of 120 days from its date,
raises a prima facie presumption that he has collected the money (G. S., ch. 20, art. 4,
§6), an averment that, "if the constable has not collected the money it was his own
neglect and fault," does not state a cause of action. 1 Met., 510-02.

(h) See G. S., ch. 20, art. 4, §7, subs. 1.

(1) The plaintiff is entitled to recover, as damages, the money collected by the con-
stable and interest from the time of demand and ten per cent, damages thereon. G. S.,
ch. 20, art. 4, 1 4.

(7 ) This prayer entitles the plaintiff to a judgment for what he may be entitled to



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526 FORMS.

recover under both paragraphs, as " the petition contains the data necessary to reach a cor-
rect conclusion." Harris, <SrV., v. Perry \ 2 Bush, 103.

b. Petition on a sheriff's bond, for failing to return execution and for failing to pay money
collected on execution (a).

(Caption as in the last foregoing Form.)

The plaintiffs, A. B., and the Commonwealth of Kentucky suing for the benefit of said
A. B., say that, on the 1st Monday in August, 1890, the defendant, C. D., was elected by
the people of Lee county to the office of sheriff of said county for a term of two yean,

commencing on the 1st Monday in January, 1891 ; that, on the .... day of , he, as

principal, and the defendants, E. F. and G. H., as his sureties, executed a bond [b)
bearing that date [or — dated, &c ], in which they covenanted to and with the plaintiff, the
Commonwealth of Kentucky, that the said C. D. ( sheriff of Lee county, should, by him-
self and deputies, well and truly discharge all the duties of said office, and pay over to
such persons, and at such times as they might respectively be entitled to the same, all
money that might come to his or their hands as sheriff ; that said bond was taken and
attested by the clerk of the county court of said county, under the supervision of said
county court, which approved the sureties therein, and is on file in the office of said clerk
[and an attested copy thereof is filed herewith {c)] ; and that said C. D. entered upon the
duties of said office on the 1st day of January, 189 1 ; and the plaintiffs further say —

1. That, in an action brought by said A. B. against one L. M., in the Menifee circuit

court, a judgment was duly rendered (d) on the .... day of , in favor of the said

A. B. against the said L. M. for dollars [and interest from the .... day of

until paid], and costs which amounted to dollars ; that, on the. . . .day of , said

judgment being in full force and effect and to no extent satisfied, a writ of fieri facias was
issued thereon, directed to the sheriff of Lee county, in which said L. M. resided [or—
after the filing with the clerk of the Menifee circuit court of the affidavit of said A. B.
(or— of S. T., who was the attorney, or — agent of said A. B.) that said L. M. had not

sufficient property subject to execution in Menifee county or in the county of , in

which said L. M. resided, to satisfy said writ (*)], commanding the said sheriff that, of

the estate of L. M., he should cause to be made the sum of dollars, which the said

A. B., late in said court, had recovered against him for debt [or— damages] [with interest

thereon from the .... day of until paid], and dollars which to the said A.

B., in the same court, were adjudged for his costs in that suit expended, whereof the said
L. M. was convicted, as appears of record to said court, and that he have the said sums of

money before said court on the .... day of , to render to the said A. B. his debt,

[interest] and costs aforesaid, and have then there said writ (/) ; that said writ, being in
full force, was delivered to the said C. D., sheriff of Lee county, on the .... day of

[or — before the return-day thereof (g)] t aud that he failed to return said writ to the

office of the clerk of the Menifee circuit court for thirty days after the return-day thereof,
and that he had no reasonable excuse for that failure (h).

2. That in an action brought by the said A. B. against one N. O., in the Lee circuit

court, a judgment was duly rendered (a) on the .... day of , in favor of said A. B.

against said N. O. for dollars [and interest thereon from the .... day of »

until paid], and costs which amounted to dollars ; that on the .... day of »

said judgment being in full force and effect and to no extent satisfied, a writ of fieri facias
was issued thereon, directed to the sheriff of said county of Lee, commanding him that, of

the estate of said N. O., he should cause to be made the sum of dollars which the said

A. B., late in said court had recovered against him for debt [or — damages] [with interest

thereon from the .... day of ] and dollars which to the said A. B., in the

same court, were adjudged for his costs in that suit expended, whereof the said N. 0.
was ' convicted as appears of record to said court, and that he have the said sums of
money before said court on the .... day of , to render to the said A. B. his debt



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PETITIONS ON WRITTEN CONTRACTS. 527



[interest], and costs aforesaid, and have then there said writ ; that said writ, being in full

force, was delivered to said C. D., sheriff of said county of Lee, on the .... day of ;

that on the .... day of , and whilst said writ was in the hands of said C. D.,

sheriff as aforesaid (i ), said N. O. paid to him the sum of dollars, in satisfaction of

said writ ; and that, on the .... day of , the said A. B. requested the said C. D.,

sheriff as aforesaid, to pay the said sum of dollars (/), but no part thereof has

been paid by either of the defendants.

Wherefore the plaintiffs ask for a judgment in favor of the said A. B. against the

defendants for dollars damages (A) and costs [and any other relief the said A. B.

may appear entitled to].

(Verification as in Form 1.) V. W., Attorney.

(a) 1. As to joining A. B. and the Commonwealth as plaintiffs in this action, see note
{c) to Form 17, a.

2. An action on the official bond of the sheriff of Lee County for failing to return, or
to pay money collected on, an execution from the circuit court of another county, must be
brought in Lee County. See Code, §63, subs. 3, and note thereto.

{b) See G. S., ch. 100, JJ 3, 4.

\c) See note (a) 2 to Form 17, a.

(d) See Code, \ 122.

(e) See G. S., ch. 38, art. 16, \ 1.
(/) See G. S., ch. 38, art. 1, {2.

[g) See 11 Bush, 668-69.

(h) As to the sheriff's liability for failing to return execution for thirty days, see G. S.,
ck.&,art. 17, »5,6, and 7.

Under the statute, the plaintiff must allege that the failure was «* without reasonable
excuse ;" but the burthen of proving an excuse is on the defendants. Johnson, &V., v.
Bradley, 1 1 Bush, 666. As to what constitutes a reasonable excuse, see 3 B. M., 328,
and cases cited.

Under said {6, the sheriff and his sureties are not liable to a judgment for money, or
for damages on money, which the sheriff had paid to the plaintiff before the commence-
ment of the proceeding against him and the sureties ; and, in equity, they are not so liable
for money paid by the original defendant. 5 Bush, 221.

(1) Formerly a sheriff's sureties were not liable for money, or damages on money, paid
to a sheriff after the return-day of an execution, unless it had been levied; but see G. S.,
ch. 100, §36; 3 ilftf., 346.

(/) As to averring a request to pay, see G. S., ch. 38, art. 17, §4, and note (/), ante,
page 525.

{t) As to this prayer for relief, see note (J), ante, page 526.

(3) Petitions in actions on statutory bonds generally.

a. Petition on an attachment-bond (a).
(Caption as -in Form I.)

The plaintiff, A. B., says that, one L. M. having brought an action against this plain-
tiff in the circuit court for five hundred dollars, the defendant, C. D., to enable

said L. M. to obtain an attachment against this plaintiff's property, did, on the .... day

of , execute before the clerk of said court in his office (b), as surety of said L. M.,

a bond, which is in possession of said clerk and on file in the aforesaid action [and an
attested copy of which is filed herewith (c)], covenanting that the said L. M. should pay
to this plaintiff all damages which he might sustain by reason of said attachment if
wrongfully obtained, not exceeding double the amount of said L. M.'s claim ; that
thereupon the said clerk issued an order of attachment against this plaintiff's property,

which, on the .... day of , was levied by the sheriff of said county, to whom it

was directed, on two horses, a dray, a derrick and its appendages, and a quantity of
dressed stone, all belonging to the plaintiff; that said sheriff held possession of said prop*

erty under said attachment from the time of said levy till the day of ; that,

this plaintiff having contested said attachment, for which purpose he employed an attorney

34



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528 FORMS.



at law, on the last named day, said court, upon a trial of the issue concerning said attach-
ment, made an order discharging it, and at the same time rendered a final judgment [or —

having, on the day of rendered a final judgment {d)] in the said action of

L. M. against this plaintiff, and that said order of discharge is in full force and effect;
that, when said property was attached, the plaintiff was using it in erecting a building
for one S. T., under a contract with him, which the plaintiff could and would have com-
plied with but for such attachment, and by complying with which he would have made



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