such boat or craft within thirty days thereafter, the taker up shall cause such boat or craft to be viewed by three housekeepers, who are disinterested and no wise of kin to the taker up, who shall, after viewing the same, give a description thereof in writing, together with the value of such boat or craft, and certify the same under their hands; which certificate, the taker up shall deliver within five days to some justice of the peace, within the county, who shall make a record thereof in his stray book, and transmit, within fifteen days, a certificate of the same to the clerk of the county court, and the clerk of such county court shall enter the same in his stray book, and file the original away with the papers of his office. SEC. 2. Be it further enacted, That the owner of such boat or craft, proving his right thereto within the time hereinafter limited, and paying to the taker up, for each steam boat, ten dollars; each horse boat, six dollars; each flat boat, commonly called an Orleans boat, and every other boat of that description and construction, five dollars; keel boat, five dollars; wood flat, three dollars; ferry flat, two dollars; for each skiff, canoe or perogue, seventy-five cents; for each raft of timber, logs or plank, one dollar for each platform thereof, together with all costs incurred by such taker up, in pursuing the provisions of the first section of this act, shall be entitled to demand and receive such boat, craft, or raft, so taken up. SEC. 3. Be it further enacted, That if the appraised value of such boat, raft or craft does not exceed two dollars, and if no person shall appear within two months after the taking up thereof, and prove his right thereto, the right of such last described boat, raft, or craft shall be vested in such taker up; but such taker up shall be liable for the rest of the value, after deducting the fee for taking up and costs of recording, &c. as herein provided for. But if the value thereof exceeds two dollars, and the owner does not appear and prove his right thereto within two months, then the taker up shall deliver the same to any constable residing in the vicinity where such boat, raft or craft, shall be taken up, and take his receipt therefor, and such constable shall proceed to advertise and sell the same to the highest bidder, having first given at least ten days notice of the time and place of such sale, at at least three public places in the county, one of which shall be the door of the court house: who shall pay over the proceeds of such sale to the clerk of the county court of such county, where such boat, raft or craft shall be taken up, first paying to the taker up all fees and costs to which by this act he is entitled; and if the proper owner of such boat, raft or craft shall not, within twelve months after such sale, appear and show himself entitled to such proceeds, then the same shall be paid over to the original taker up. TITLE 32. BONDS FOR COSTS. 1793. IN FORCE FROM ITS PASSAGE. AN ACT to amend an act entitled "an act establishing County Courts, Courts of Quarter Sessions, and a Court of Oyer and Terminer:" Approved December 21, 1793.-1 Litt. 205. SEC. 3. And be it further enacted, That no suit shall hereafter be commenced in any court (a) within this commonwealth by a suits until they non-resident, (b) until he shall file in the clerk's office of such court, Non-residents not to institute (a) The failure by a non-resident plaintiff in error to execute bond in the clerk's office of the court of appeals, for costs, may be pleaded in abatement of his writ, and the tender of a bond after such plea filed, will not avail him; but if the defendant in error should attempt by motion to have the writ of error dismissed, the plaintiff may then tender a bond and prevent a dismission. The act of assembly on this subject applies to the court of appeals, and a plea in abatement for such cause, must there be filed at the first term to which the process is returned fully executed.-Hopkins v. Chambers, &c. 7 Mon. 254; Cabell v. Payne, 2 J. J. Mar. 134; See also, Harlin's Heirs v. Eastland, Har. 310. (b) The failure by a non-resident plaintiff to give security for costs before the commencement of the suit is a good plea in abatement, and a replication tendering a bond for costs or avering that a bond has been executed since the impetration of the writ is bad on demurrer.-Jones v. Lacey, 3 J. J. Mar. 543. 2. A plea in abatement for want of security for costs was filed, without affidavit; the plaintiff replied admitting the fact of non-residence, but avering that he had executed bond with resident security, with the approbation of the court, since the institution of the suit, and during the term the plea was filed,―held that the replication waived the necessity of an affidavit to the plea, and that the application was bad on demurrer, and the facts as replied could not avoid the plea. Gordon v. Phelps, 6 J. J. Mar. 218. 3. A motion against a sheriff and his securities, by a non-resident, for failure to pay over money collected, may be abated for want of security for costs. The bond for costs should be given to all who are sued, as well as to the officers of the court-Canterberry, &c. v. Smith, 5 J. J. Mar. 225. 4. A plea in abatement that the complainant has failed to execute a bond for costs as required by the statute, will not be sustained in chancery, but the bond may be then given and the suit will progress.—Haskins v. Spiller, 1 Dana, 176. 5. Failure of a non-resident to give security for costs, before the calling of the cause is not of itself cause of continuance for the adverse party.-Cox v. Fenwick, 3 Bibb, 183; Crist v. Mark, Ibid, 297; Smith v. Snoddy, 2 Mar. 382. 6. A motion to dismiss a suit for want of security for costs comes too late after the jury are sworn.- Wheelin & Co. v. Kertley, Har. 541. 7. The non-resident instituted suit in the circuit court and failed to give proper bond with security for costs. On motion to dismiss the suit for this cause, the court below refused to do so. At the Fall term 1807, a mandamus was applied for in the court of appeals, to compel the court to dismiss the suit-held that a mandamus was the appropriate remedy, and a rule upon the circuit court to show cause was granted.—Barnett, &c. v. Warren circuit court, Har. 174. have filed bond clerk's office. bond with sufficient security who shall be a resident of this state, (c) conditioned for the payment of all costs that may accrue in conse- with security quence thereof, either to the opposite party or any of the officers of for costs in such court, (d) and the same may be put in suit by any of the persons aforesaid for the non-payment of the sums that may respectively become due to them. 1796. IN FORCE FROM ITS PASSAGE. AN ACT to reduce into one the several acts concerning the examination and trial of criminals, grand and petit juries, venires, and for other purposes: Approved December 17, 1796.-1 Litt. 475. Prosecutors certain costs. SEC. 49. And be it enacted, That in all indictments for assaults and batteries, and other offences not capital, now depending, or upon indictments to hereafter to be prosecuted, it shall be lawful for the court before give surety for whom the same shall be depending upon good cause to them shown, to compel the prosecutor to find security for the payment of the costs; and if such prosecutor shall fail to give security accordingly, the indictment shall be dismissed with costs. (e) 1801. IN FORCE FROM ITS PASSAGE. AN ACT to amend an act entitled "an act to reduce into one the several acts for preventing vexatious suits and regulating proceedings in civil cases: Approved December 18, 1801.--2 Litt. 440. SEC. 2. Be it further enacted, That if any person resident of this commonwealth, shall institute any suit, whether at common (c) A plea in abatement in the court of appeals "that the plaintiff did not on or before the commencement of this suit, file in the clerk's office, &c. bond with sufficient security who is a resident of this state, &c." was adjudged bad on demurrer; and the court refused permission to amend.-Thomson v. Neal, 1 Dana, 469. (d) A bond for costs executed to the defendant and conditioned to pay to the officers of the court the fees to which the defendant should become liable, is not broken by a failure to pay the fees to the defendant, and such an assignment of breach is insufficient.-Chiles v. Calk, 3 Mon. 341. 2. A bond for costs was executed "to Robert Tichenor, &c. and all the officers of the Madison circuit court"-Held that although the officers of the court were not individually named in the bond yet they were obligees therein, and that they must all unite as plaintiffs in their indi Residents who and afterwards institute suits vidual characters, in a suit upon the bond.— Ham's Adm'rs v. Tichenor, 3 Mon. 196. 3. Bonds for costs by non-residents should regularly be given to the defendant in the suit; and if they are not conditioned to pay the costs of the defendant as well as the officers of the court they will be insufficient.-Barnett, &c. v. Warren circuit court, Har. 172. If the bond is executed by resident security alone, without being signed or sealed by the nonresident it will be sufficient.-Ibid. On motion to dismiss, bond may be executed to pay former and subsequent costs, and the suit shall progress.-Wheelin & Co. v. Kertley, Har. 540. (e) If the prosecutor set down at the foot of an indictment for an assault and battery die before it is tried, it should not for that cause be dismissed, if the attorney for the Commonwealth tender another prosecutor.-Com'ith v. Cunningham, 5 Litt. 292. remove from execute & file bond with security for costs. When bond must be execu ted. law or in chancery, in any of the courts of this commonwealth, and the state, shall shall after the institution thereof, remove out of this commonwealth, such shall be bound to give security for the cost of such suit, person to be approved of by the clerk of the court where such suit may be depending, in a bond, under such penalty as the clerk may deem proper, conditioned for the payment of all costs that may accrue in consequence thereof, either to the opposite party, or to any of the officers of such court; which bond shall be given in the clerk's office of such court, on or before the first day of the next term of such court, after such removal of the plaintiff, or on failure thereof, such suit may at any time thereafter, be dismissed on motion; (f) and Proceedings where any bond shall be given in pursuance of this act, it shall and may be lawful for the clerk of the court where the suit is depending, to issue any writ of execution against the plaintiff and the security in such bond, for all costs which may be adjudged by the court to the defendant against the plaintiff in any such suit; and it shall and may be lawful for the several officers of such court to issue their fee-bills against the security in such bond, in the same manner that they might by law issue them against the plaintiff' in any such suit. on such bond. 1812. Non-resident executors & ad execute bonds IN FORCE FROM ITS PASSAGE. AN ACT concerning Executors and Administrators: Approved January 28, 1812. 4 Litt. 339. SEC. 2. Be it further enacted, That any executor or executors, administrator or administrators, commencing a suit, or being legally ministrators to authorized to prosecute the same within the purview of the foregoing section, shall give bond with security for the payment of costs, as other non-residents suing in their own rights are compelled to do; and upon a failure of assets, shall be liable individually for costs of any such suit. for costs. 1813. Non-resident plaintiffs before a justice or in county court to give security for costs. IN FORCE FROM ITS PASSAGE. AN ACT concerning Securities: Approved February 1, 1813.-5 Litt. 47. SEC. 1. Be it enacted by the General Assembly of the Commonwealth of Kentucky, That all and every bond, hereafter entered into either before a magistrate, or court, or clerk of any court in this commonwealth, for the costs and damages of any suit brought, or (f) Where the complainants have removed since the filing of their bill, the court should not dismiss their suit immediately, on a motion to do So, from the neglect to execute bond for costs; but should give a reasonable time for the execution of the bond, and on their failure to execute it, dismiss their bill.-Breeding, &c. v. Findley, &c. 1 Dana, 477. that may hereafter be brought in this state by any non-resident, shall have the force and effect of a judgment. SEC. 2. And the several clerks and magistrates shall from time to time, as costs or damages be adjudged or become due to any defendant in any such suits, or to any of the officers of court, or magistrate, where the same shall be, shall issue execution on such bond from time to time, for such sum or sums as shall be adjudged or become due, and shall be endorsed thereon without fee, the respective sums, or part thereof, that shall be due to the defendant, and to each officer of said court, or magistrate; which execution shall be deliv. ered to the proper officer, who shall proceed to levy and collect the same, and shall pay over to each person thereto entitled his due proportion thereof, or be liable therefor in the same manner as in other cases. 1821. Executions may be issued on such bonds. How collected and accounted for, and to whom paid. IN FORCE FROM ITS PASSAGE. AN ACT to regulate Appeals from Justices of the Peace to the County Courts: SEC. 4. All non-resident plaintiffs, either before a justice of the peace or in the county court, shall be compelled (on the motion of the defendant) to give security for costs, on or before the trial of his, her or their causes; and on the failure or refusal of such plaintiff to give security, the cause shall be dismissed, |