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91

TITLE 2.

ABSENT DEFENDANTS AND UNKNOWN HEIRS.

1796.

IN FORCE FROM FIRST OF JANUARY 1797.

Absent defendants, how

AN ACT directing the method of proceeding in Courts of Equity, against absent debtors, or other absent defendants, and for settling the proceedings on attachments against absconding debtors: Approved December 19, 1796.—1 Litt. 592. SEC. 1. If any suit shall be depending, or hereafter commenced in any court of chancery in this commonwealth, against any de- proceeded fendant or defendants who are out of this country, (a) and others gainst. within the same having in their hands effects of, or otherwise indebted (b) to such absent defendant or defendants, and the appearance of such absentees be not entered and security given to the satisfaction of the court for performing the decrees, upon affidavit, that such defendant or defendants are out of the county, or that upon enquiry at his, her or their usual places of abode, he, she or they could not be found, so as to be served with process; in all such cases the said courts of chancery may make any order and require surety, if it shall appear necessary, to restrain the defendants in this country from paying, conveying away, or secreting the. if necessary.

(a) The benefit of the provisions of the above law is not confined to the citizens or residents of this state, but embraces citizens of other states also; nor is it material whether the absent defendants ever were citizens or residents of this state or not.-Aspinwall v. Chase, 3 Mar. 266.

2. The law authorizing proceedings against absent defendants, does not apply to cases of resident insolvent debtors.-Rich, &c. v. Catterson, 2 J. J. Mar. 135.

(b) If a debtor has abandoned the country, and left effects in the possession of others, a court of equity will entertain jurisdiction of the case, and afford the appropriate relief.-Moore v. Simpson, 5 Litt. 49.

2. The acts respecting absent defendants in chancery, give jurisdiction to courts of equity in all cases arising on contract.-Watts v. Griffin, Litt. Sel. Cases, 244.

a

Court may make restraining order, and require surety

3. If in a bill against an absent and a resident defendant, to have a demand against the former satisfied out of a debt due by the latter to the former, it appear such debt had been appropriated to another creditor before suit, and the chancellor had not jurisdiction except to subject the resident, no decree can be rendered against the absentee.-Manifee's Heirs v. Hyneman, &c. 3 Mar. 406.

4. Under the act of 1796 authorizing the choses in action, &c. of absent defendants to be subjected to the demands of creditors by suit in chancery, the effects of an absent joint obligor may be reached without having obtained a judgment at common law against his co-obligors. They must, however, be made defendants, and the chancellor will then do complete justice to all. -Curd, &c. v. Letcher, 3 J. J. Mar. 444-445,

Shall appoint a day for defendant to en

ter appearance. Order to be

months.

Repealed, see section of act

1803, post 95.

debts by them owing to, or the effects in their hands of such absent defendant or defendants, and for that purpose may order such debts to be paid, and effects delivered to the said plaintiff or plaintiffs upon their giving sufficient security for the return thereof to such persons, (c) and in such manner as the court shall direct.

SEC. 2. The court shall also appoint some day (d) in the succeeding term for the absent defendant or defendants, to enter his, her or their appearance to the suit, and give security for performing the decree: a copy of which order shall be forthwith published advertised two in the Kentucky Gazette, or Herald, and continued for two months successively, (e) [and shall also be published on some Sunday, immediately after divine service, in such church or meeting-house as the court shall direct; and another copy shall be posted at the front door of the said court-house.] If such absent defendant or defendants shall not appear and give such security within the time limited, or such further time as the court may allow them, for good cause shewn, the court may proceed to take such proof as the complainant shall offer: and if they shall thereupon be satisfied with the justice of the demand, they may order the bill to be taken as confessed, (ƒ) and make such order and decree therein as shall appear just, and Further pro- may enforce due performance and execution thereof by such ways and means as hath heretofore been used for enforcing other decrees, requiring the plaintiff or plaintiffs to give such security as the court shall approve for abiding such future order as may be made for restoring the estate or effects to the absent defendant or defendants upon his or their appearance, and answering the bill; and if the

If he does not appear, bill to

be taken for confessed.

ceedings.

(c) A decree against an absent defendant and his resident debtor, attaching the debt for the ⚫ benefit of complainant, ought to require a bond to be executed, conditioned for abiding such future order as may be made for restoring the property to the absentee upon his appearance and answering the bill.-Brockman, &c. v. Hank's Adm'r. 5 J. J. Mar. 252.

2. A bond executed on obtaining a restraining order, is not such a bond as the statute requires for securing restitution to the absentee.-Ibid.

(d) An order for the appearance of an absent defendant on or before the calling of the cause at the next term, is insufficient: the law requires a certain day to be fixed in such order.-Milam, &c. v. Thomasson, 7 Mon. 324.

(e) An order of publication ought to be published two calendar months; a publication of eight weeks will not do.-Cravens v. Dyer, Dallam, & Co. 1 Litt. 153; Pyle v. Cravens, 4 Litt. 17; Lawlin's Heirs v. Clay, 4 Litt. 283.

(f) It is irregular to take a bill for confessed

at the term to which the absentee is warned to appear; but if the decree taken at that term be interlocutory only, it will not be reversed for that cause alone.-Bedford v. Duly, 1 Mar. 222.

On opening a decree against an absent defendant, and rehearing the cause, regard should be paid to the first decree, and if that is right, all things done under it should remain unaltered.

Ibid. 223.

2. Where a bill is brought against resident and non-resident defendants, asserting the same equity against both, and the resident defendants answer and put the complainant on proof of his equity, and he fails to produce proof, there can be no decree against the non-residents, defendants, although they fail to answer, and the bill has been taken as confessed against them.—Cunningham's Heirs v. Steel, 1 Litt. 52.

3. An interlocutory order and assessment of damages may be made at the term to which an order of publication is returned.

Moore v. Simpson, 5 Litt. 49.

plaintiff or plaintiffs shall refuse to give or not be able to procure such security, the effects shall remain under the direction of the court in the hands of a receiver, or otherwise for so long a time, and shall then be finally disposed of in such manner as to the court shall seem just.

appear

appear

Absent defen

dant appearing within 7 years after decree,

have the cause reheard.

May answer the bill.

SEC. 3. If any person or persons who shall be out of the commonwealth at the time any decree is pronounced as aforesaid, shall, within seven years from the passing such decree, return and openly; or in case of his or her death, if his or her heir, executor, may petition to or administrator shall, within the said seven years be, and openly within this commonwealth, the plaintiff or plaintiffs, their executors or administrators, shall serve such person or persons so returning or appearing, with a copy of the decree within a reasonable time after such return or appearance shall be known to the plaintiff or plaintiffs, and thereupon such defendants, or their representatives, may within twelve months after such service, or those defendants not served with a copy, or their representatives, may within seven years after the decree pronounced, appear in court and petition to have the cause re-heard; and upon their paying down, or giving security for payment of such costs as the court shall think reasonable, they shall be admitted to answer the bill, and issue may be joined, and witnesses on both sides examined, and such other proceedings, decree and execution had, as if there had been no former decree in the cause: but if the several defendants, or their representatives, upon whom the decree shall be so served, shall not within twelve months after such service, and the other defendants, or their representatives, upon whom no such service is made, shall ants confirmed. not, within seven years from the time of the decree pronounced, appear and petition to have the cause reheard as aforesaid, and pay or secure to be paid such costs as the court may think reasonable, all and every decree to be made in pursuance of this act against any defendant or defendants so failing, shall stand absolutely confirmed against him, her or them, his, her or their heirs, executors or administrators; and all persons claiming under him, her or them, by virtue of any act or conveyance done, or made subsequent to the commencement of the suit; and at the end of such term the court may make such further order for quieting the plaintiff or plaintiffs in any such suits in their possession of, and title to the estate and effects so sequestered or made liable as to them shall seem reasonable.

SEC. 4. In all cases whatever where a suit is or shall be depending in any court of chancery, concerning any matter or thing whatever, against any absent defendant or defendants, the court may, on satisfactory proof to them made, that such defendant or defendants is, or are out of this commonwealth, or that upon enquiry at his, her or their usual places of abode, he, she or they could not be

In what cases a decree against absent defend

to stand

ceedings ag'nst absent defend

Further pro

ants.

found, make any order similar to that which is directed to be made in case of absent debtors, adapting the same to the nature of the case; a copy of which order shall be published in like manner as is directed in case of absent debtors, and thereupon if the appearance of such absent defendant or defendants, be not entered, the complainant may proceed in like manner as if an appearance had been entered: Provided, always, That where such decree shall be made, such absent defendant or defendants may, at any time within seven years (g) be permitted to file his, her or their answer, and to shew cause why the said decree should be set aside; upon which the courts may make such decree as shall appear to be equitable.

1800.

IN FORCE THREE MONTHS FROM ITS PASSAGE.

AN ACT to amend the laws of proceedings in civil cases: Approved December 18, 1800.-2 Litt. 402.

SEC. 5. And be it further enacted, That where land is held by Joint tenant "two or more persons in joint-tenancy or tenancy in common, and one may sue nonre- of them lives out of this commonwealth, or is a minor, a person sident, &c. for adjustment of insane or feme covert, and the other a resident thereof, it shall be claim to the lawful for such resident to carry on any suit or action for the adjustment of any claim to said land: Provided, however, That it shall be lawful for such minor, insane person or feme covert, within

land.

(g) A decree ascertaining the complainant's demand, directing a sale and ordering the payment of costs, is final, and from its date the seven years allowed absent defendants to answer, is to be computed, and not from the orders confirming, directing and approving the sale.

Field v. Ross' Ex'r. 1 Mon. 136. When such a decree is improperly opened in the court below, it cannot be questioned in this court by the party who opened it, nor can he have the benefit of the subsequent decree which was in his favor.-Ibid.

That the order of publication was not regularly advertised, is no cause for opening a decree against absent defendants, and permitting their answer, after the limitation had expired.-Ibid.

2. Decision of the court overruling a motion by part of the defendants in a decree against them and others as absent defendants to open the decree and file their answer, because all did not appear who were necessary parties to contest the decree, is not a bar to an application made by all.-Blight, &c. v. M'Ilvoy, &c. 4 Mon. 144.

When the absent defendants hold a joint right, they must embody themselves in one petition and answer, and present them within the seven years.-Ibid.

If one defendant shows in his petition and answer that he holds the interest of all the others against whom the decree was rendered, he shall be heard without their uniting-otherwise notIn such cases the defendant who appears making his co-defendant, a defendant to a cross bill in his answer, will not avail.-Ibid.

Decree of affirmance in the Court of Appeals, on a writ of error brought by the defendants to a decree against them as absentees, does not bar their right to file their answer within seven years. Ibid.

3. Where a joint decree has been rendered against absent defendants, it is an error to open it on the answer of part of the defendants being filed. They should all unite in such an application.—Bradley v. Catlet's Heirs, 7 J. J. Mar. 122, 3 Litt, 172,

three years after their several disabilities are removed, and of said non-residents within five years after rendering said judgment or decree, to impeach, reverse and vacate the same on the ground of fraud or collusion of such resident, joint-tenant or tenant in common, in obtaining the same.

1802.

IN FORCE FROM ITS PASSAGE.

AN ACT to amend an act, entitled, an act to reduce into one the several acts for the conveyance and division of lands: Approved December 16, 1802.

3 Litt. 19.

How chancery suits may be brought against

unknown heirs

for land.

Advertise

ments against, to be published eight weeks.

SEC. 3. And be it further enacted, When any person or persons, their heirs or assigns, claim land, as locator, or by bond or other instrument of writing, may institute a suit in a court of equity, having jurisdiction in such cases, and where the party having died and the legal title descended to their heirs, and the complainant may proceed to obtain a decree for the land, though the particular names of the heirs be unknown, and not particularly named in the suit, and though they may be residents of this commonwealth or not; but in such cases it shall be advertised eight weeks (h) in one of the gazettes of this state, requiring such heirs or representatives to appear and make their defence; and when a final decree is entered up, the court entering such decree shall appoint one or more commissioners to convey the title of the land thus decreed to the complainant; ers and in cases where suits in chancery have heretofore been entered for land, the same course of proceedings may be had as aforesaid; and in all cases where a decree hath been entered up against the defendant or defendants, the court shall appoint one or more commissioners to convey the land accordingly: Provided, however, If at any time hereafter it shall appear there was any fraud in the contract, or in obtaining the title by this act, so much of the proceedings as are necessary to do justice to the party, may be set aside in a court of equity.

1803.

IN FORCE FROM ITS PASSAGE.

AN ACT to amend the act, entitled, "an act directing the method of proceeding in Courts of Equity, against absent debtors, or other absent defendants, and settling the proceedings on attachments against absconding debtors:" Approved December 22, 1803.-3 Litt. 108.

Commission

to convey lands pursuant to decree.

Proviso.

SEC. 1. Be it enacted by the General Assembly, That so much of Repeal of part the said recited act as requires that a copy of the order of publica- of act of 1796.

(h) Orders of advertisement against unknown heirs, may be published only eight weeks; against

other defendants they must be two months.-" Barclay v. Hendricks, 4 Mon. 252.

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