courts.

Concurrent jurisdiction of monthly & quarterly courts.

county courts, and for other purposes," and it is thought expedient that the same should be revised and amend ed; and to prevent the difficulties that often arise from multiplied laws on the same subject, it is necessary that the whole system should be brought into one point of view.

11. Be it therefore enacted by the General Assembly, Quarterly That courts shall be held for each county and corporation on the several court days in the months of March, May, August, and November, for the trial of all presentments and criminal prosecutions, suits at common law and in chancery, where the sum exceeds five pounds or eight hundred pounds of tobacco, depending therein, and continue for the space of six days, unless the business be sooner determined: And if it shall so happen that a sufficient number of justices shall not meet for holding the said courts on the first day of the term, or on any subsequent day thereof, it shall and may be lawful for any one justice to adjourn the court from day to day for the space of three days, and provided such adjournment shall not extend beyond the term limited for the duration of the session. The monthly and quarterly courts shall have concurrent jurisdiction in granting and dissolving injunctions in chancery, and in entering up judgments on attachments against absconding debtors where the property attached shall not be replevied, and except such as are by law finally cognizable before a single justice of the peace, in all petitions for debt, detinue and trover, and in all matters touching the breach of the peace and good behavior, in motions on replevin bonds, and motions against sheriffs and other public officers and defaulters. The respective county courts shall sit in the several months not before specified for the transaction of all business cognizable by the said courts, except such as has been herein assigned to the courts of quarter sesProcess re- sion. All original process to bring any person or persons to answer in any action or suit, indictment or information in the said courts of quarterly session, and all subsequent process thereon, all process in chancery awarded by the said court, and all other writs of what nature soever, shall be made returnable to the first day of the next succeeding quarterly term, except, subpœnas of injunction attachments, petitions and subpœnas for witnesses which shall be returnable to the next suc

turns of

ceeding court, be the same monthly or quarterly, as the case may require. Special bail may be taken in Special baif. court at the quarterly sessions or at the monthly courts; and any justice of the peace when the courts are not sitting may take recognizance of special bail in any action therein depending, which shall be taken de bene esse, and returned by the justice taking the same, to the clerk of the court before the next succeeding quarterly court, to be filed with the papers in such action. And if the plaintiff or his attorney shall except to the sufficiency of the bail so taken by a justice out of court, notice of such intended exception shall be given to the defendant or his attorney at least five days previous to the day at which such exception shall be taken; and if such bail shall be adjudged insufficient by the court, the recognizance thereof shall be discharged, and such proceedings shall be had as if no such bail had been taken. The same proceedings shall be had against the common bail and sheriff in any suit, or either of Common bail. them, their executors or administrators, and they or either of them may have the same remedy against the defendant or his executors or administrators in the county courts at their quarterly sessions as is directed to be had in any district court in such cases. All imparlances to be taken and pleadings to be filed both in common law and in chancery, until an issue is joined or interlocutory decree or judgment obtained, shall be clerk's office. done at rules to be held monthly in the clerk's office on such days as the courts at their respective quarter sessions shall appoint, which rules shall be distinctly entered in a book to be kept for that purpose, and the clerk shall be allowed the same fees for entering such rules, as if the same had been made in court. And all rules to declare, plead, reply, and for other proceedings, shall be given from month to month, and shall be made and entered with the clerk of the court in the same manner as rules are made and entered with the clerks of the district court in suits depending in them. Provided nevertheless, That the court may at their quarterly session next after any of the said rules and proceedings have been had in the clerk's office, for good cause to them shewn, set aside any of the said rules and proceedings, and make such order concerning the same as to them may appear just and right. The clerk shall pro portion the causes upon the docket from the first day

Rules, in

of the court to the sixth, both inclusive, if in his opinion, so many days will be expended in trying the causes ready for trial, and issue subpoenas for witheses to attend on the days to which the causes stand for trial. Docketting He shall docket the causes in order as they are put to issue, and no cause shall be removed from its place on the docket unless where the plaintiff at the calling the same be unprepared for trial, in which case, and no other, shall the cause be put at the end of the docket. Depositions, When any witness resides out of this commonwealth, when & how and within any other of the United States, or shall be

causes.

taken.

about to depart the same, or by age, sickness or otherwise, shall be unable to attend in person, upon affidavit thereof, the court when sitting, or any justice thereof in vacation, may on request of either party direct a commission to be issued by the clerk of the court to two or more justices of the peace for taking the deposition of such witness, de bene esse, but the party obtaining such commission shall give reasonable notice to the adverse party of the time and place of taking such deposition, otherwise the same shall be void. If any party in any suit at common law or in chancery shall make oath that he verily believes his claim or defence, or a material point thereof, depends on a single witness, the court, or any justice thereof, may direct a commission to issue from the clerk of the court to two or more justices of the peace to take the deposition of such witness, de bene esse, although he or she be not about to depart the commonwealth, nor under any disability, the party in such case giving reasonable notice of the time and place of taking the same to the adverse party. When any witness resides beyond sea or in any foreign country, upon affidavit thereof, the court when sitting may, on request of either party, direct a commission to issue from the clerk's office, directed to such commissioners, not exceeding five, as shall be nominated and agreed upon by the parties litigant, for which purpose, the party applying for a commission in such cases shall give the adverse party, his attorney or agent, ten days previous notice of the day of his intended application to the court, without which no such commission shall issue; and if the adverse party, his attorney or agent, shall not attend for the purpose, in that case the party praying the commission, may nominate the commissioners himself, any three of

tify.

Notices on

motion.

whom in either case may proceed to execute the said commission: Provided nevertheless, That in either case, reasonable notice shall be given to the adverse party of the time and place of taking such deposition, and the costs of giving any such notice as aforesaid, as well as of taking any deposition or depositions in any or either of the United States, or beyond sea, may be taxed by the court against the party who, in their opinion, ought in justice to pay the same. If any person attending before any county court referees or commissioners, appointed to take his or her deposition Witnesses re. within this commonwealth, shall refuse to give evi- fusing to tes dence on oath or affirmation, as the case may be, to the best of his or her knowledge, any person so refusing, shall be committed to prison, either by the court referees or commissioners, there to remain, without bail or mainprise, until he or she shall give such evidence. Notice in writing of motions upon replevin bonds, and against delinquent sheriffs and other officers, if left with the wife or other free person over the age of twenty-one years, other than a negro or mulatto, belonging to the family of such obligor, sheriff, or other officer, ten days before the making such motion, and at his or their usual place of abode, upon affidavit thereof being made, shall be deemed sufficient. The county courts, at their quarterly sessions, shall have similar jurisdiction with the high court of chancery, and shall proceed in the same manner against the estate and effects of persons residing out of this state, or absconding to avoid being served with the process of the said court; and may hear and determine all caveats against grants for lands lying within the jurisdiction of the said courts respectively, except within the counties. composing the district of Kentucky. The person entering a caveat against the issuing a grant upon any survey, shall take from the surveyor of the county, or from the register's office, a certified copy of such survey and plat, which, within thirty days from the entering such caveat, he shall deliver to the clerk of the county where the suit is instituted, or such caveat shall be void, and the clerk thereupon shall make due entry thereof in a book kept by him for that purpose, and issue a summons, commanding the defendant to appear on the first day of the next succeeding quarterly court, defend his or her right; and on such process being

Foreign at. tachments.

Caveats

executions.

ments.

returned executed, the same proceedings shall be had thereon, as by law are directed in similar cases in the district courts. All writs of execution upon judgments Returns of obtained in the quarterly or monthly courts, and all executions and other process to enforce any decree in chancery, obtained in either of the said courts, may be made returnable to the first day of a quarterly or monthly court, provided there be not less than fifteen nor more than ninety days between the teste and retorn Office judg- of such execution or process. Where any final judg 'ment shall be entered up in the office against any de fendant or defendants, and their securities, or against any defendant or defendants. and sheriff, by default, execution may issue thereon after the next succeeding quarterly court, unless the same be set aside during such court, in like manner as office judgments in the district courts may be set aside; and all office judgments so set aside, shall be immediately put at the end of the issuedocket, and tried the same court in turn with the other issues, unless the plaintiff shall wave his right of trial until the next quarterly term. The right of appeal from the county and corporation courts to the district courts, shall be exercised in the same manner as hath heretofore by law been accustomed from the county to the general court.

Appeals.

Sheriffs fail

executions,

fines on.

III. And be it further enacted, That where any writ ing to return of execution or attachment, for not performing a decree in chancery, shall come into the possession of any sheriff, coroner, or serjeant of a corporation, and he shall fail to return the same to the office from whence it issued, on or before the return day thereof, it shall be lawful for the court, upon ten days previous notice being given, upon the motion of the party injured, to fine such sheriff, coroner, or serjeant, at their discretion, in any sum not exceeding five pounds per month, for every hundred pounds contained in the judgment or decree on which the execution or attachment so by him detained has been founded, and so in proportion for every greater or lesser sum. And where the execution or attachment has been founded upon a judgment or decree for the specific performance of an act or thing, in any sum not exceeding fifty pounds, the fines shall be to the use of the party injured, and at his request an execution shall issue there for, and be indorsed by the clerk, that no security of any kind shall be taken. If

Negligence of attornies.