penalties which the law prescribes against a marriage whilst a Wife not to former wife is living; nor shall the wife so divorced, again marry within one year after the date of such final decree. marry within one year. SEC. 9. Be it further enacted, That where any wife hereafter Where wife shall renounce the marriage covenant, and abandon her husband, renounces the according to the tenor, effect and meaning of the first section of marriage contract, husband this act, it shall and may be lawful for the husband so abandoned, may obtain a to sue for and obtain a divorce, subject to the regulations and prodivorce. visions of the several laws regulating divorces; but such divorce shall not operate so as to release such wife, who shall nevertheless remain subject to all the pains and penalties which the law prescribes against a marriage whilst a former husband is living; nor shall the husband so divorced, again marry within one year after the date of the decree pronouncing such divorce. But wife not released. When wife sect, husband SEC. 10. And be it further enacted, That if any religious association of persons, or any person or persons belonging to such asor child is de-sociation, or acting under their authority, shall illegally detain an tained by any infant or feme covert, a writ of habeas corpus may be had and obmay have writ tained of right, by any person applying therefor. And the circuit of hab. corp. judge or assistant judges of the circuit court issuing said writ, shall Mode of pro- proceed in the premises according to law; and if the persons comceeding thereon posing such association, or any person or persons belonging thereto, or acting under their authority, to whom such writ may be directed, shall refuse or fail, without a sufficient reason assigned, to comply with the directions of the writ, such refusal or failure shall subject the offender or offenders, and each of them, to a penalty not exceeding five hundred dollars, to be applied to the reduction of the county levy, upon conviction on indictment in the circuit court having jurisdiction of the offence. And it shall be the duty of the attorney for the Commonwealth of the circuit court of the county where such detention may happen, upon the request of any person whatever, to attend to the prosecution of said writ Penalty on failure to obey. Attorney for cw'lth to attend to the prosecu tion of the writ. 1831. Court maycom pel husband to provide for the wife during the for alimony. IN FORCE FROM ITS PASSAGE. AN ACT concerning suits for Alimony; Approved December 22, 1831.. Session Acts 1831, p. 123. SEC. 1. Be it enacted by the General Assembly of the Commonwealth of Kentucky, That in all cases now pending, or hereafter pending, in any of the courts of this Commonwealth, in favor of a wife, against her husband, for alimony, it shall be the duty of the court, in which any such suit is depending, upon being satisfied, by the examination of witnesses, or the production of the affidavit or affidavits of disinterested persons, that the complainant is not suita bly provided for by him, to make an order on the records of said court, that such husband shall pay to his wife so much money as said court may deem sufficient for the comfortable support and maintenance of his wife, for one year, regarding the amount of the husband's estate; and execution shall issue therefor immediately, on the application of such wife, her agent, or attorney: and said court is lecting the same required to renew such order, from time to time, as equity and justice shall require; and the same proceedings to be had thereon, by execution, until such suit for alimony is decided. Mode of col SEC. 2. Be it further enacted, That all laws or parts of laws, which now require a jury to find the facts, upon which a claim of necessary. alimony depends, be, and the same are hereby repealed. A jury not The chancel SEC. 3. Be it further enacted, That the chancellor, in all causes now pending, or hereafter commenced, shall try the facts of the lor shall try the cause, as in other cases in chancery.. SEC. 4. Be it further enacted, That before an application is made to the court, under the first section of this act, for an order on the defendant, for support of the complainant, five days' previous notice shall be given to the defendant, of the time of the intended application; or in the absence of such defendant, said notice shall be left at his place of residence: Provided, however, the aforesaid order shall not be entered, if it shall appear from the testimony, that the wife is living in adultery. facts. Notice to be given of motion for support du ring pendency of the suit. TITLE 9. APPEALS AND WRITS OF ERROR. 1385. 9 Richard II. Chap. 3.-2 Litt. 511. Reversioner, his heirs, &c. shall have writ of error either before or after Ir is accorded and assented that if the tenant for term of life, tenant in dower, tenant by the curtesy of England, or tenant in tail, after possibility of issue extinct, be impleaded and plead to an inquest, and lose by the oath of twelve, or by default, or in other manner, that he to whom the reversion of the tenements so lost death of tenant doth appertain at the time of such judgment given, his heirs or successors, shall have an action by writ of error, if error be found in the record of such judgment, as well in the life time of such tenants ment. The effect of that so do lose as after their death; and if such erroneous judgment reversal ofjud be reversed, the tenant which did lose by the first judgment, if he be in life, shall be restored to his possession of the tenements so lost, with the issues in the mean time; and the party pursuing to the arrearages of the rent, if any be due of the same tenements, and if such tenant be dead at the time of the judgment given upon such writ of error, that restitution of the said tenements be made to the party pursuing, with the issues after the death of the said tenant, together with the arrearages of the rent, if any to him were due in the life time of the tenant. May allege that tenant was of covin with the demandant. Iftenant traverse the covin, may have scire facias. to be granted Provided nevertheless, That although the tenant which did so lose by the first judgment be in life, and the party pursuing will allege that the same tenant was of covin and of assent of the demandant which recovered that such tenements ought to be lost, that restitution of the same tenements be made to the party pursuing, with the issues and arrearages as afore is said, saving to such tenant his action by writ of scire facias, out of the same judgment so reversed or given, if he will traverse the covin and assent aforesaid, other wise not. 1796. IN FORCE FROM FIRST OF JANUARY 1797. AN ACT establishing the Court of Appeals: Approved Dec. 19, 1796.-1 Litt. 562. Appeals not SEC. 13. In appeals and writs of error, the following rules shall be observed: No appeal shall be granted from the judgment or debut on final judgments or cree of an inferior court, to the court of appeals, unless such judgdecrees where ment or decree be final, and amounts, exclusive of costs, to thirty they amount to £30, or relate pounds, or relate to a franchise or freehold. (a) to a franchise, be prayed at the time of rendering the judgment, &c. (a) If on a traverse of an inquisition of forcible entry and detainer, a judgment is given for costs only, no appeal lies from such judgment.Briscoe v. Briscoe, 3 Mar. 498. 2. An appeal does not lie in favor of the Commonwealth from a judgment of a county court acquitting a defendant on a charge of bastardy. -Commonwealth v. Sandford, 5 Litt. 289. 3. An appeal or writ of error will not lie from the decision of the court on an attachment to enforce the execution of a deed decreed to be ex ecuted.—Watson v. Thomas, Litt. Sel. Cas. 249. 4. Kennett as relator recovered a judgment against Fugate for one hundred and eleven dollars, which was arrested by the court and judgment for costs against Kennett. The arresting of the judgment is equivalent to a judgment Every appeal shall sentence or decree. against Kennett for the $111, from which an appeal will lie.-Com. for Kennett v. Fugate, 1 Mon. 1. So it has been held if a plaintiff sue in slander and lay his damages at $10,000, and judgment be given for defendant, that he may appeal, as it is in effect a judgment against him upon his claim of $10,000.—Cox v. Vance, M. S. opinion. 5. It is the nominal amount of the judgment, and not the sum by which it may be discharged, that determines the right to an appeal to the court of appeals.--Cobbs v. Com. for Beatty, 3 Mon. 392. 6. No appeal will lie from an order of the county court that unless counter security be given by an administrator he shall be superseded. Such The person appealing shall, by himself, or a responsible person Appellant to on his behalf, in the office of the clerk of the court from whence give bond and security. the appeal is prayed, give bond and sufficient security to be approved by the court and within a time to be fixed by the court to the appellee for the due prosecution of his appeal. (b) [The penalty of the said bond shall be in a reasonable sum in the direction of the court. It shall be the duty of the appellant to lodge an authenticated copy of the record before the expiration of the second term, after the appeal shall be entered in the clerk's office of the court of appeals, or else it shall stand dismissed unless further time shall be granted by the court before the end of such second term for lodging the same.] an order is interlocutory and not final.-Horseley's Adm'x v. Hopkins, 2 J. J. Mar. 54. 7. Where there has been a verdict but no judgment rendered thereon, and an appeal taken, the appeal will be dismissed.-Buckner v. Morris, 2 J. J. Mar. 122. 8. The traverser who was plaintiff in the warrant, obtained a verdict, that the traversee was "guilty of the forcible detainer;" and thereupon the court rendered judgment, in her favor, for the costs and damages (one cent) assessed by the jury. There was no judgment for restitution! therefore no "franchise or freehold" is affected by the judgment. The party could have no process in consequence of the judgment. An appeal would not lie. There can be no appeal to this court unless there be a judgment or decree, amounting to one hundred dollars, or touching a franchise or freehold.-Norton v. Sanders, 3 J. J. Mar. 397; Nichols v. Hansel, do. 412. (6) An appeal bond must be executed in the clerk's office in the presence of the clerk or of his deputy. Hardin v. Owings, 1 Bibb, 214. 2. An appeal bond conditioned for "prosecut ing the appeal with effect, or on failure to do so, to pay the amount of the judgment and all damages and costs," is not against law, and is therefore obligatory on both principals and sureties. Although the act constituting the court of appeals does not sufficiently define the condition of an appeal bond, yet reason and a practice of thirty years, sanctioned several times indirectly by the Legislature, require that all appeal bonds should contain substantially such conditions as above.-Moore v. Gorin, 2 Litt. 186. 3. It is not necessary for the condition of an appeal bond to be in the form prescribed by the statute, it is sufficient that it is of the same legal effect.-Cobbs v. Com. for Beatty, 3 Mon. 392. VOL. I. [Repealedsee post.] 4. Condition of an appeal bond to "duly and faithfully prosecute the appeal," is the same in legal effect with that required by the statute.Forquar, &c. v. Collins, 4 Mon. 448. An appeal bond according to the statute, binds the obligors for the amount of the judgment, damages and costs, if the judgment be affirmed.-lb. 5. An appeal bond conditioned for "the due prosecution of the appeal" binds the obligors upon breach to pay debt, damages and costs.Evans v. Hardwick's heirs, 1 J. J. Mar. 437. 6. Where different sums are decreed against several defendants and one alone prosecutes an appeal and executes bond, and the appeal is afterwards dismissed he will be responsible in the appeal bond for the several sums decreed against all the def'ts.-Young v. Ditto, 2 J. J. Mar. 72, 7. The appeal bond was with condition to pay, &c. in case said judgment shall be affirmed in said court of appeals. For a failure to prosecute, the appeal was dismissed on the motion of the appellee and now in a suit on the bond the sureties contended that there was no breach of the condi tion of the bond. The main object of an appeal bond is to secure the plaintiff in the judgment, the payment of such judgment, with costs and damages, when awarded, unless it should be reversed by the appellate court; and to attain that object, such must be considered its legal effect, in every case, when it has been executed in the words of the act, for the due prosecution of the appeal, or in other words, substantially the same. In such cases the court should remember qui hæret in litera, hæret in cortice.-Harrison & Co. v. Bank of Kentucky, 3 J. J. Mar. 376. 8. An appeal bond entered into by the sureties only, is obligatory on them. The principal would be no further bound by such bond than without it.--Harrison & Co. v. Bank of Ky. 3 J. J. Mar. 376, 18 Where p'lff. can assign er rors of law only Where he may assign errors of fact. The plaintiff in error, except in cases of wills, mills and roads, shall assign error upon matters of law only arising on the face of the proceedings. In case of mills, wills and roads, (c) the plaintiff in error may assign errors upon matters of fact, as well as upon matters of law. If the judgment or decree be affirmed in the whole, the appelDamages on lant shall pay to the appellee ten per centum on the sum due thereby, (d) beside the costs upon the original suit and appeal. affirmance. If the judgment or decree shall be reversed in the whole, the Costs upon appellee shall pay to the appellant such costs as the court in their discretion may award. reversal. Where judg ment reversed Where the judgment or decree shall be reversed in part, and affirmed in part, the costs of the original suit and appeal shall be in part, how apportioned between the appellant and appellee in the discretion of costs to be ap- the court. The court of appeals shall, in case of a partial reversal, portioned. give such judgment or decree as the inferior court ought to have given. Execution may On appeals or writs of error, it shall be lawful for the court of be issued from appeals to issue execution or remit the cause to the inferior court, court of appeals in order that an execution may be there issued, or that other proceedings may be had thereupon. (e) or suit remanded. Writs of er ror matter of right, except in riminal cases. Writs of error shall, upon the demand of the person applying for the same, be issued as a matter of right, except in those cases which may be brought before and determined by the district courts, under the criminal jurisdiction of the said court, in which cases no certiorari, appeal, supersedeas or writ of error, shall be allowed. (ƒ) 9. In an action on an appeal bond, the obligors are estopped to deny the existence of a decree, which they have acknowledged, in the condition of the appeal bond, to exist.-Kellar's Ex'rs v. Beeler, 4 J. J. Mar. 655. 10. The security in an appeal bond conditioned to "pay, &c." does not discharge his obligation when upon the affirmance of the judgment he replevies the original debt. He must actually pay it.-Mrrow's adm'rs v. Mason, &c. 7 J. J. Mar. 370. cute a writ of error.-McClelland v. Com'th, Har. 291. 3. In detinue if the judgment for the plaintiff be affirmed, 10 per cent damages will be given on the damages recovered below for the detention; but not on the value of the property detained.-Stamps v. Beatly, Har. 337. 4. On affirmance damages will only be given on the damages in the court below.-Brents v . Barnett, 3 Bibb, 251. (e) The court of appeals will not permit an (c) As to roads this section is now repealed. execution to issue from their clerk's office to enSee act January 29, 1830. Post. (d) On affirming a judgment on a writ of error coram vobis this court will not give 10 per cent damages on the original judgment, but will give 10 per cent on the 10 per cent adjudged by the inferior court. The same rule will apply in affirming a decree which dissolved an injunction and gave 10 per cent damages.-Lansdale v. Findley, Har. 203. 2. Ten per cent damages will be given against those defendants in a judgment only who prose force a judgment for damages on the affirmance of a case, but will remand the cause to the court below, that the dainages may be there collected. Talbott v. McQuies, 7 J. J. Mar. 321. (f) The court of appeals has no appellate jurisdiction in any criminal or quasi criminal cases, but such as are strictly and exclusively penal; that is in cases in which a fine is the only punishment. The act of 1827, concerning stabbing without malice, prescribes fine and imprisonment as the punishment. In such case there |