1828. Informer to pay costs as in ordinary cases, and if judgment is obtained against defend ant, he may recover costs. IN FORCE FROM ITS PASSAGE. AN ACT more effectually to guard the right of suffrage and for other purposes: [SEC. 15.] "And where the suit is brought, first, by an informer, in his name and that of the Commonwealth, then the one half shall be paid as aforesaid, and the other half shall be paid to the prosecutor." SEC. 16. Be it further enacted, That in all cases where an informer shall so sue, such informer shall pay all costs of prosecution, as in ordinary cases; and shall, if judgment go against him, pay the defendant his costs, and if judgment pass against the defendant, recover costs as in other cases. No judgment for costs to be given for plaintiff in certain cases in circuit court, but in such cases judgment shall be in favor of the defendant for costs. Proviso. Costs to be a plaintiff ap awarded ag'nst IN FORCE FROM ITS PASSAGE. AN ACT to amend the law in trials cognizable before Justices of the Peace: Approved February 13, 1828.-Session Acts, p. 228. SEC. 3. Be it further enacted, That the plaintiff or plaintiffs in actions of debt, covenant, assumpsit and petition, hereafter instituted in the Circuit Courts shall not recover costs from the defendant or defendants in such actions, unless the debt exclusive of interest or damages recovered therein, shall exceed fifty dollars; but in such cases the court shall render judgment in favor of the plaintiff or plaintiffs only for such debt or damages, and shall moreover render a judgment against the plaintiff or plaintiffs, in favor of the defendant or defendants, for their costs expended in the defence of said action: Provided, That the provisions of this section shall not extend to any case where the defendant or defendants shall file a plea or notice of set off. (i) SEC. 5. Be it further enacted, That in cases where the plaintiff or plaintiffs in any judgment rendered before a Justice of the Peace, shall appeal therefrom, and on the trial of said appeal, shall (i) In an action of covenant, if the judgment be for less than fifty dollars, there can be no judgment for costs in favor of the plaintiff if there is no notice of set-off or other plea relied on. So of other actions since the above act where the damages are certain, or can be fixed by a legal standard.-Carrington's Ex'r. v. Coombs, 3 J. J. Mar. 308; Huling v. Rife, &c. 3 J. J. Mar.587-8. 2. Contracts for the breach of which no determinate amount of damages is allowed by law, as for example a contract to marry, are not em braced by the above act. On such contracts, justices have no jurisdiction, and although the amount recovered in the circuit court be less than $50, the plaintiff would be entitled to costs.Ibid, 587. 3. If plaintiff recover less than $50 in the circuit court, the defendant is entitled to costs, unless there had been a plea of set-off or notice of set-off. The exception in the above act is confined to a plea or notice of set-off only.Brown v. Pollard, 6 J. J. Mar. 116. from the judgment of a justice, unless he recover a than the judg larger amount not recover judgment for a larger amount, exclusive, of interest, pealing 1830. ment appealed from. IN FORCE FROM ITS PASSAGE. AN ACT for the benefit of Witnesses, Clerks, Sheriffs and other officers: Approved January 29, 1830.-Session Acts, p. 252. per Be it enacted by the General Assembly of the Commonwealth of Kentucky, That whenever, in any suit pending in the court of appeals, the general court, or any of the circuit courts in this Commonwealth, a witness, sheriff, clerk or other officer, who shall form services for any insolvent suitor, and the fees for such services shall be recovered or liable to be recovered from the adverse party, such witness, sheriff, clerk or other officer, shall have a lien for so much of their fees as shall be included in the judgment or order for the payment of costs; which lien shall be enforced by motion to the court by any of the parties at the same term the judgment is rendered, or order for the payment of costs is made; of which motion the party, by himself or counsel, shall take notice; and the court, on prima facie evidence of insolvency, shall order the clerk to endorse on the execution or executions to be issued on such judgments or order for the payment of costs, that the fees of the witnesses, sheriff, clerk or other officer, are for their benefit, specifying the amount to which each officer is entitled; and the officer collecting the same shall pay to the sheriff, clerk or other officer, and to each witness the part endorsed for his benefit; and all such officers shall be liable to the same fines and penalties for issuing a fee bill for the same services, for which they may have procured the endorsement on an execution, that they are now liable to, for issuing a fee bill twice for the same services. [For the acts regulating costs against Executors, &c. See title CLERKS ante, p. 396, and title EXECUTORS and ADMINISTRATORS, post.] TITLE 53 COURT OF APPEALS. 1796. IN FORCE FROM FIRST OF JANUARY 1797. AN ACT to establish the Court of Appeals: Approved December 19, 1796.1 Litt. 560. SEC. 1. Be it enacted by the General Assembly, That the court Court com- of appeals shall consist of three judges, any two of whom shall be posed of three sufficient to constitute a court; one of them shall be called chief jusjudges, any two of whom may tice of Kentucky, another the second judge of the court of appeals, and another the third judge of the court of appeals, and shall be commissioned and have precedence accordingly. form a court. Form of the oath to be taken by the judges. How admin istered, and re corded. SEC. 2. Every person so commissioned, before he enters upon the duties of his office, shall take the following oath or affirmation, towit: "I A. B. do solemnly swear or affirm, that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as a judge of the court of appeals, according to the best of my abilities and understanding, agreeably to the constitution and laws of Kentucky, So help me God:" omitting in the case of an affirmation, the words "so help me God." Which oath or affirmation may be administered by any justice of the peace: and the certificate of the taking of which shall be recorded in the court of appeals. [SEC. 4 Relates to the appointment of clerks. See it, title CLERKS, p. 382, ante.] SEC. 5. The court of appeals shall, annually, appoint one of the Clerk's office judges thereof to inspect the clerk's office of the said court, and to to be inspected, report to the next session of the said court, the condition in which he shall find the papers and records, which report shall be recorded. and how. [SEC. 8.] "There shall be no discontinuance of any suit, process, No discon- matter or thing, returned to or depending in the court of appeals, tinuance though judges fail to at- although a quorum of judges shall fail to attend at the commencement, or any other day of any session." tend. SEC. 9. Executions shall be issued from the court of appeals according to law; and the return days shall be appointed by the said court. SEC. 10. The court of appeals shall have power to direct the writs, summonses, process, forms and modes of proceedings to be issued, observed and pursued by the said court of appeals. SEC. 11. In cases in which the inferior courts have cognizance, also in such cases as shall be brought before the court of appeals by appeal or writ of error, or other proper mode, to reverse decrees or judgments for the supreme court for the district of Kentucky, the court of appeals shall have appellate jurisdiction, under the regulations respecting appeals and writs of error, hereinafter mentioned. (a) [SEC. 13. Part of this section relates to Appeals and Writs of Error. See it, under that title, p. 128, ante.] [SEC. 13.] "Whensoever the court of appeals shall be divided in opinion, on hearing any appeal or writ of error, the judgment or decree appealed from shall be affirmed.” [SEC. 14. Part of this section relates to clerk's duty, and the order in which causes shall be heard. See it, title CLERKS, p. 382, ante.] [SEC. 14.] "When any cause shall be finally determined, the clerk shall make a complete record thereof; (b) and all writs, processes and summonses, issuing from the court of appeals, shall be signed by the clerk of the same, and shall bear teste [in the name of the chief justice for the time being."] SEC. 15. The court of appeals shall have power to impose and administer all necessary oaths and affirmations, to punish by fines and imprisonment all contempts of authority in any cause or examination before the said court, and establish rules in conformity with the constitution and laws of this Commonwealth. SEC. 16. For good cause the court of appeals, or any judge thereof, may grant commissions for the examination of witnesses, and the clerk of the said court, when any witness is about to depart from the state, or shall by age, sickness or otherwise, be unable to attend the court, or where the claim or defence of any party, or a material part thereof shall depend on a single witness, may, upon affidavit thereof, issue a commission for taking the deposition of such witness de bene esse, to be read as evidence at the trial in case the witness be then unable to attend; but the party obtaining such commission shall give reasonable notice to the other party of the time and place of taking the deposition. (a) For judicial decisions on the jurisdiction of the Court of Appeals, see notes to Article 4, of the Constitution of Kentucky, pages 61 to 64, ante; and also notes to title Appeals and Writs of Error, ante. 479 Executions, how to issue. Power of the court as to process. Jurisdiction of the court. When court is divided, judgment affirmed. To make complete records. [Repealedsee act of 1810, post.] Power to ad minister oaths and punish contempts. And establish rules, &c. May grant commissions to take depositions in certain cases (b) The above clause requiring a complete record to be made out, is repealed by the subsequent act of 1825, which see, title Clerks, page 399, ante. SEC. 17. In the court of appeals the parties may plead and manParties may their own causes personally, or by their attorney in fact, propappeal in age person or by attor- erly authorized for that purpose by letters of attorney, or by such at ney. torneys at law as by the rules of the said court shall be permitted to manage and conduct causes therein. SEC. 18. Deeds, powers of attorney or other writings, may be Deeds, &c. admitted to record in the clerk's office of the court of appeals, he may be admit- taking the acknowledgment or proof in the same manner as if it ted to record, and how. was done in open court. 1800. 1 case the court should not be formed on first day of term,&c IN FORCE FROM ITS PASSAGE. AN ACT concerning the Court of Appeals: Approved December 20, 1800.2 Litt. 412. [SEC. 2.] "In case in any term a court shall not be made on the Provision in first day thereof, the court shall stand adjourned from day to day, for seven days, unless a court shall be sooner formed; and if from any cause, after a court shall meet, the court shall not sit on any day of a term, the court shall not thereby be adjourned, but may sit again and proceed to business as soon as the cause shall be removed." [SEC's. 3 and 4 Relate to Appeals and Writs of Error. See that title, p. 133, ante.] Terms of the court regulated. 1801. IN FORCE FROM ITS PASSAGE. AN ACT to amend the act entitled "An act establishing the Court of Appeals, and for other purposes: Approved December 19, 1801.-2 Litt. 443. SEC. 1. Be it enacted by the General Assembly, That the court of appeals shall from henceforth hold two terms in every years; the one commencing on the first Monday in April, and the other on the first Monday in October in every year, [at the state house in Frankfort ;](c) and the said court of appeals shall sit at each of the said terms until the business before the court is completed. (c) The above clause [in brackets] is taken from the third section of the act of 1796, 1 Litt. 560. |