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ant aver that one of his statements is true, but that he does not know which of tbem is
true; perhaps a reply denying payment or satisfaction might be regarded as impliedly ad-
mitting that the contract had not been signed or delivered, unless the reply aver that it
had been, although the petition had so averred.

147. Replies making new assignments.

[See note 2, ante, p. 144; to which I add the suggestion that a reply which states or
supports a different cause of action from that stated, or from that which the court is satis-
fied the plaintiff intended to state, in his petition is not. allowable, as it would be a depart
are, which is forbidden by { 101 of the Code, as it is by the common law. A new cause of
action, if it can be stated in the case at all, must be stated in an amended petition].

a. Reply to a plea of liberum tenementum, making a new assignment.
(Caption as in Form 125 a, p. 667.)

The plaintiff says that the land [in which the trespasses complained of in his declaration
were committed] is a tract of land situate in Lee county and [describe it by abuttals or metes
and bounds or otherwise, so as to identify if], and is another and different close from the close
in the defendant's answer mentioned, and therein alleged to be the close, soil, and free-
hold of the defendant {a). E. F., Attorney.

(Verification as in Form I.)

See Form in 2 Ch. PL, 680. If the plaintiff in an action for the possession of land, or
an action of trespass quare clausum f regit, fail to specify the land, and describe it, for in-
stance, as being a close in the county of Lee, his action may be defeated by proof, under 1
plea of liberum tenementum, that the defendant owns a close in that county, unless the plain-
tiff describe the land to which his action relates by a new pleading ( Tribbte v. Frame, 7
Mon., 529; Hope v. Cason, 3 B. M., 544) ; which, though no doubt it might be done by
an amended petition, is usually, if not always, done by a reply, called a new assignment.

b. A new assignment in an action for slander, in reply to a plea that the words were spoken t*

defendant's wife in the privacy of his family ', and accidentally overheard by another
person who made them public.

(Caption as in Form 125 a, p. 667.)

The plaintiff says that the words complained of in his petition as having been spokes
and published by the defendant were not words spoken by the defendant to his wife, bet



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MOTIONS FOR JUDGMENTS, ETC. 683

1

words spoken and published by the defendant in the presence and within the hearing of
other persons, [to- wit — naming them or some of them] (a .

(Verification as in Form I.) E. F., Attorney.

(a) Campbell v. Bannister, 79 Ky., 205, was an action for slander, in charging the plain*
tiff with having burnt the defendant's house. The answer stated the facts suggested in the
caption of this Form, and that the words were spoken without malice ; the reply averred
that it was not true that the defendant spoke the words under the circumstances stated in
the answer, and also averred that the defendant had often spoken the words in the pres-
ence of divers persons ; and there was no rejoinder. If the plaintiff had made a new as-
sign men t in his reply, abandoning any claim for damages for the speaking of the words to
the defendant's wife and founding it on the publication of the words to other persons, a
ejoinder would have been necessary to prevent a judgment by default and a writ of inquiry
)f damages. See 7 Man., 533. But there was no necessity for a rejoinder, because the
plaintiff, by traversing the reply, insisted on the first mentioned claim; and, doing so, he
:ould not assert the other in his reply, though the court said that he might have done so
>y an amended petition. Consequently, there was no judgment by default for the failure
rejoin ; and it was held that *' the only question that should have been submitted to the
ury was, whether the words [spoken to the defendant's wife] were spoken maliciously."

•. A new assignment in an action for assault and battery.

(Caption as in Form 125 a, p. 667.)

The plaintiff says that he brought this action, not for the trespasses in the answer men-

ioned, but for that the defendant, on the .... day of , at [&c.,] as aforesaid, upon

n other and different occasion, and for another and different purpose than in the answer
nentioned, made another and different assault upon the plaintiff than the assault in the
nswer mentioned, and then and there beat, bruised, wounded, and ill-treated the plain-
iffas the plaintiff in his petition has complained, and which said trespasses above newly
ssigned are other and different trespasses than those in the answer mentioned (a).

(Verification as in Form I.) E. F., Attorney.

(a) See Form in 2 Ch. PI., 677.



XII.— MOTIONS FOR JUDGMENTS, &c.

[I. The provisions of title X, chapter V, of the Code, concerning judgments on mo-
ons, are made applicable by §444, not only to the cases therein specified, but "in all
'her cases specially authorized by statute."

For references to several other provisions of the Code and of the General Statutes au-
torizing motions, see note (c), ante, p. 326.

2. As to the character and contents of notices of statutory motions.

Such notice "must be in writing" (J 624), and "shall state the nature and grounds of
e motion and the day on which it will be made." §446.

It has been frequently held that such notice must state facts showing a right to the re-
•f demanded, the court having said in some of the cases that it must contain the requisites
a petition (18 B. M., 622; 3 Met., 348; 4 Id., 259; 11 Bush, 667; 12 Id., 117; 13 Id.,
1) ; but notice of a motion for a writ of possession (required by the General Statutes to
nform to the Code), which stated facts showing that the land had belonged to the de-
idant and been sold under an execution against him, and purchased by the plaintiff and
nveyed to him by the sheriff, was held to be sufficient, though it failed to state that the
lintiff owned the land when he gave the notice, the court saying: " It was not neces-
ry to allege in so many words that the plaintiff was the owner of the property, or to fol-
w the form in an action of ejectment, or in an action for the recovery of real property."
-*>•> 308-9; *n<* »«« 4 Bush, 95*



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684 FORMS.

Objections to the sufficiency of a notice are waived, however, by an appearance and
trial. 78 A>., 602.

And, though the notice be sufficient, there can be no judgment by default thereon (iS
B. M., 621-22; 3 Met., 348; 4 Id., 259; 11 Bush, 667; 12 Id., 118): but see McGheev.
Sutherland, 84 Ky., 198, and comments thereon in note (a), post, p. 689.

3. As to the time to be allowed for appearance to a statutory motion, see Code, J 445.

4. As to serving notices of statutory motions, see Code, $ 624 to 631.

5. As to docketing such motions, and the time and mode of trying them, see Code, g 352,
353. 355. 356, 447. 448, 449, and note 2, ante, p. 329.

6. As to the county in which motions must be made. The provisions of title V of the Code
apply to motions, " so far as the provisions of this Code concerning actions are properly
applicable to special proceedings." Code, \ 732, subs. 34].

1 48. Notices of statutory motions for judgments for money.

a. Surety s notice of motion against co-surety for contribution (a).
To Mr. CD.:

You and I having, at the request of £. F., become his sureties on his note to G. H. for

the payment of dollars on the .... day of ; and said E. F. having failed to

pay any part thereof; and I having, on the .... day of , paid to said G. H

dollars, being the amount of principal and interest then due on said note ; and neither you
nor said E. F. having paid me any part of said money ; and said E. F. having become insol-
vent [or — a non-resident of Kentucky] (b) ; notice is hereby given you, that I shall mo?e

the circuit court, on the .... day of its next term, to render a judgment against

you for dollars (stating half of the sum paid by A. B.), with interest from the ....

<iay of (c), and costs.

Dated this day of A. B.

(a) See Code, 3 444, and note {a) thereto.

(b) See notes (I) and (c) to Form 35, ante, p. 549.

(c) See 5 Dana, 114; 6 B. M., 238; 3 Bush, 519-20.

b. Notice of motion against an attorney for money collected (a).
To Mr. C. D.:

You having received, as my attorney, the sum of dollars from , on

the .... day of , and payment thereof having been demanded of you on the

■day of (b), and you having failed to pay any part thereof; notice is hereby given

you, that I shall move the circuit court, on the .... day of its next term, to render

a judgment against you for said sum of money, with interest thereon from [stating the date
of the demand], and costs

Dated this day of A. B.

(a) See Code, §444.
\b) See I Bush, 265.

•c. Clerk's notice of a motion against a surety for costs (a).
Mr. C. D.:

You having become E. F.'s surety on a bond [or — recognizance (£)] for costs in an ac-
tion brought by said E. F. against G. H., in the ...... circuit court, as appears of record

therein; and said E. F., on and between the .... day of , and the .... day of

(<-), during which time I was the clerk of said court, having become liable for costs

in said action to the amount of dollars, as appears of record in said court, and no

part of said costs having been paid ; notice is hereby given you that I shall move said court,



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MOTIONS FOR JUDGMENTS, ETC. 685

on the day of its next term, to render a judgment against you for said sum of money,

and the costs of this motion.

Dated the day of A. B.

{a) See Code, §444.

(b) See 6 Bush, 696.

(c) "All fees shall be due and payable within two months after the services are ren-
dered." G. S., ch. 41, art. 1 9, \ 1.

d. Notice of motion against a constable and his sureties for his failure to execute a distress-war*
rant, and his failure to collect claims or pay money collected.

To Messrs. C. D., E. F., and G. H.:

C. D. having been [state his election as constable, and his having given bond, with E. F.
and G. If. as his sureties, &*c, substantially as in Form a, ante, p. 524] ; and —

1. I having [state the obtaining and delivery to C. D. of a distress-warrant, and his mis-
conduct with reference thereto, and the debtor's insolvency, and the request to C. D. to pay dam-
ages, <5rY., substantially as in paragraph I of the last-named Form],

2. And I having also [state the placing of claims in the hands of C. D. for collection and
his conduct with reference thereto, and a request to pay, dfc, substantially as in paragraph 2

of the last-named Form] : notice is hereby given to each of you that I shall move the

circuit court, on the .... day of its next term, to render judgment against you for

dollars damages for said C. D.'s failure to perform his duty as to said distress-warrant;

and for dollars damages for said C. D.'s failure to collect the aforesaid claims

placed in his hands for collection, [or — for dollars, the sum collected by said C. D.

on the aforesaid claims placed in his hands for collection, and interest thereon from the
is/ating the date of the request to pay) and ten per cent, damages on said sum] and costs {a).

Dated this day of A. B.

{a) 1. See notes to Form a, ante, p. 525.

2. This motion should be made in the county in which C. D. was constable. $ 63,
subs. 3, and 732, subs. 34.

3. Section 444 authorizes a motion against "an officer for money collected or property
received, and for the damages which such party is entitled to recover;" but ch. 20, art 4,
§ 1 of the G. S., authorizes a motion against a constable and his sureties, or any one or
more of them, &c, for any damages sustained or any money collected, &c.

e. Notice of a motion against a sheriff and his sureties for his failure to return an execution and
his failure to pay money collected on an execution {a).

To Messrs. C. D., E. F., and G. H.:

C. D. having been [stale his election as sheriff, and his having given bond, with E. F. and
G. H. as his sureties, <5rV., substantially as in Form b, ante, p. 526] ; and —

1. I having [state the obtaining of judgment and delivery of an execution to C. D., and his
failure to return the same, without any reasonable excuse, substantially as in paragraph 1 of
l Ae last-named Form],

2. And I having also [state the obtaining of another judgment and deliver) 1 of execution to
2. D., and his receipt of money, and the request and failure to pay, substantially as in paragraph

1 of the last-named Form] : notice is hereby given to each of you that I shall move the

rircuit court, on the ... . day of its next term, to render a judgment against you fer

[o liars [stating the amount of the first-named execution] and thirty per cent, damages thereon,

nd the costs of this motion (b) ; and- to render a judgment against you for dollars

stating the sum received by C. D. on the last-named execution] and interest thereon at the rate
>f fifteen per cent, per annum [state the date of the request to pay], and the costs of this mo-
ion, including dollars, which I paid [or — agreed to pay] to my attorney for his

ervices in said motion (c).

Dated this .... day of A. B.



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686 FORMS.

(a) i. See notes (4) to (/) to Form b, ante, p. 527.

2. G. S., ch. 38, art. 17, declares that " the remedy shall be by motion or action in the
court whence the execution issued.' 1 But that provision was repealed as to "actions," by
\ 63 of the Code. Groom* s admW v. Pickett, 4 Bush, 372. A bracketed note to that case,
in Bullitt and FelawTs G. S., p. 584, suggests that §63 does not apply to motions. But I
am now satisfied that J 63 was made applicable to motions by \ 732, subs. 34.

3. G. S., ch. 38, art, 17, JJ 4 and 5, authorizes a motion against a sheriff and his sure-
ties, or any of them, &c, for money collected by him, or for his failure to return an exe-
cution for thirty days.

(6) See G. S., ch. 38, art. 17, §5.

(c) See G. S., ch. 38, art. 17, §4; SB. M., 200; 3 Met., 98.

f. Notice of a county-creditor's motion against a sheriff and his sureties.
To Messrs. C. D., E. F., and G. H.:

C. D. having been elected by the people of county to the office of sheriff thereof,

on the .... day of , for the term of ... . years, commencing on the 1st Monday in

January, . . . ., and having entered on the duties of his office on the last-named day; and

the county court of said county having, at its term in the year . . . ., made a levy

of taxes to pay the debts and expenses of said county ; and said C. D., as principal, and
said E. F. and G. H., as his sureties, having, on the .... day of [stating a day dur-
ing the levy term or subsequent thereto (a)], executed a bond to the Commonwealth of Ken-
tucky, covenanting that said C. D. should well and truly collect, account for, and pay
over to the persons entitled to receive the same, according to law, the county levy and
public dues of said county for the year . . . . , and should in all things well and truly de-
mean himself and perform the duties of county collector of said county, which bond was,
by said obligors, signed and delivered to the presiding judge of said court, and by him
approved and accepted, as appears of record in said court (b) ; and the clerk of said court

having, on the .... day of [stating June 1st, or some date prior thereto {c)], delivered

to said C. D. a list of the persons chargeable with the county levy, and the sum to be
paid by each ; a list of the sums due, and from whom due, to the county ; and a list of
the persons to whom the county was indebted, and the amount to be paid by said C. D. to

each one, which list * stated the sum of dollars as being due to me from said

county (d) ; and I having, on the .... day of , requested said C. D. to pay to me

dollars [stating the amount 0/ the debt] [or — having, on the .... day of , re-
quested said C. D. to pay me dollars {stating a sum equal to 90 per cent, of the

debt)] (e);

[Or, m lieu of the words following the asterisk, state — failed to mention the debt to me, but

said court having, by an order made on the .... day of , ordered the sum of

dollars to be paid to me, and I having, on the .... day of , requested said

C. D. to pay me said money, there being then in his hands a sufficient sum, received by
him as collector as aforesaid, to pay the same, after deducting all claims previously al-
lowed by said court (/) ;]
and said C. D. having failed to pay me any part of said money : notice is hereby given

you that I shall move the county court of said county, on the .... day of , to render

judgment against you for dollars and ten per cent, thereon (g) and costs.

Dated this .... day of A. B.

(a) See G. S., ch. 27, art. 2, {4. A bond executed prior to the levy term is void. 80
Ky., 587. And bonds to secure the State-revenue, or for performance of the general
duties of the sheriff, are not obligatory as to county levies. 10 Busk, 135 ; 14 Id., 292.

(b) See 14 Bush, 301-2 ; 80 Ky., 390.
\c) See G. S., ch. 27, art. 2, }6.

(d) See ?6, supra ; 3 Mel., 348; 4 Id., 259.

(e) A demand of the money is necessary in order to maintain the motion (3 Met., 348) ;
and it seems that 90 per cent, of the debt can not properly be demanded before October
1st of the current year, and that the residue can not be properly demanded before the 1st
of the following January. See G. S., ch. 27, art. 2, } 7 ; 4 Met., 258. It seems clear,



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MOTIONS FOR JUDGMENTS, ETC. 687



however, that the creditor, having demanded the 90 per cent, on or after October 1st, can
maintain a motion therefor, without waiting until he has a right to demand the residue.

(/) See G. S., ch. 27, art. zAl\ 18 B. M. t 622.

(g) The allowance of ten per cent, by the statute is for damages, not interest. i&
B. M., 622 ; 3 Met., 348.

g. Notice of a motion against obligors in a claimant's bond, given to suspend a sale under an
execution (a).

To Messrs. C. D. and E. F.

The circuit court [or — L. M., a justice of the peace of county] having,

on the .... day of , rendered a judgment in my favor against G. H. for dol-
lars [and interest thereon from the .... day of ] and costs amounting to dol-
lars, no part of which has been paid or satisfied; and an execution on said judgment

having been levied by the sheriff [or — by S. J., a constable] of county, on personal

property of G. H. which was subject to said execution, and of the value of dollars; and

you, said C. D., having claimed said property as yours, and having as principal, with you,.

E. F., as surety, executed and delivered to said officer a bond to me, in the sum of

dollars, stipulating that, if it be adjudged that said property, or any part of it, is subject
to said execution, you, C. D., will pay to me the value of the property so subject, and ten
per cent, thereon, not exceeding the amount due on said execution, and ten per cent,

thereon, which bond was returned by said officer to the circuit court [or — to ....

, a justice of the peace of county] : notice is hereby given to each of you

that, on the .... day of , I will move said last named circuit court [or — said last

named justice of the peace] (b) to render a judgment against you for dollars (c),

and ten per cent, thereon (d), and the costs of this motion (e).

Dated this .... day of A. B.

(a) I. See Code, JJ645 to 649, and §651 (the provisions of which are made applicable
by 8652 to proceedings on distress-warrants).

2. Ten days must be allowed for appearance to the motion, if made in the circuit court
(Code, {445) ; five days, if made before a justice of the peace. {651.

(b) See Code, JJ648, 651.

(c) State the sum due on the execution when the bond was given, if it be less than the
value of the property as stated in the motion ; or the value of the property so stated, if it
be less than the sum due on the execution.

(d) The plaintiff is entitled,' not to interest at the rate of ten. per cent, per annum, but
to ten per cent, as damages. See 18 B. Af., 622; 3 Met., 348.

(e) The foregoing Form is more full and specific than was held to be necessary in Smith
v. IVelTs adm*r f 4 Busk, 92 ; but it may be useful as indicating facts which the plaintiff
must prove, even if the defendant fail to appear to the motion.

149. Notices of statutory motions for other relief titan judgments for
money.

^ Notice of a motion to set aside a fraudulent sale under an execution.
To Messrs. C. D. and E. F.:

A tract of land in county owned by me, and on which I reside, having been

sold by the sheriff of said county under an execution in favor of you, C. D., against me,
which was issued on a judgment rendered by the circuit court of said county, and you,

E. F., having purchased said land at said sale for the sum of dollars: notice is

hereby given to each of you that I shall move said court, on the .... day of its next term,
to set aside said sale, on the ground that [state facts showing fraudulent conduct of tht pur-
chaser or the sheriff or the appraisers^ &c. $ (a)], and that I shall then pay into said court the
said dollars and interest thereon from the [slate the day w/ten E. F. paid the money].

Dated this .... day of A. B.

(a) Though the statute declares that " sales made under execution by fraud, covin,
or collusion, may be set aside on the motion of any person aggrieved (G. S. t ch. 38, art.

44



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688 FORMS.

, 5> § I ) ; and though a defendant's averment, that the plaintiff obtained the contract sued
on "by fraud, covin, and misrepresentation, " has sometimes, but not uniformly, been held
to constitute a defence (see note 14, ante, p. 127) ; general averments of fraud, &c, in a
notice of a motion to set aside an official sale, seems to be insufficient : it seems clear, at
any rate, that the notice should state by whom the fraud was committed, or between whom
the covin or collusion existed. See Lawrence ', «5rV., v. Edelen, 6 Bush, 55.

b. Notice to a personal representative of a motion to revive a judgment.
To Mr. C. D., administrator of E. F.:

The circuit court having, on the .... day of rendered a judgment in

tny favor against your intestate, E. F., for dollars [and interest thereon from the

day of ], and costs amounting to dollars, no part whereof has been paid

or satisfied (a), and you having become administrator of the estate of said E. F. on the

.... day of (b) : notice is hereby given to you that I shall move said court, on the

.... day of its next term, to revive said judgment against you as the administrator of
said E. F.

Dated this day of A. B.

(a) It seems that the plaintiff, on trial of the motion, must show that he made an affi-
davit and demand before giving the notice (see note (c) 2, ante, p. 303) ; but, as reference
thereto is unnecessary in a petition (15 B. M., 183; I Met., 24), it seems to be unneces-
sary in a notice of a motion.

As to the requisites of the affidavit, see note 2, ante, p. 320.

{b) State a day at least six months before the giving of the notice. Code, J 407, subs. 3.

c. Notice of a motion for a writ of mandamus ( a) .

To the city of

{O— To the county court of county].

[Or — To C. D., presiding judge of the county court of county],

{Or— To C. D., Auditor of the State of Kentucky].

\Or — To C. D., E. F., and G. H., constituting the Examining Board of Contested Elec-
tions in county].

Notice is hereby given you [or — to each of you] that I have filed a petition in the
circuit court against you, asking, upon grounds therein stated, for a writ of man-
damus, commanding you to do [or — commanding you to omit doing] [state the act, the doing
4>r omission of which is sought for]; and that I shall move said court, on the .... day of its
next term, to issue a writ of mandamus against you according to the prayer of said petition.

Dated this day of A. B.

(a) 1. See Code, $j> 474 to 478, and notes thereto.

2. Upon a motion for a mandamus against a corporation, as to a corporate act, the bring-
ing of its officers individually before the court is not necessary except for the purpose of
■enforcing obedience to the writ by process of attachment. 18 B. M., 13 ; 2 Met., 71.

Properly, such motion should be against the corporation ; and will be treated as if so
-made, though made against its officers, unless objection for the informality be made before
the trial of the case. (18 B. M., 13 ; 2 Met., 71) ; and the death or removal of the officers



Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 96 of 142)