1851: Floyd Johnson Breathitt ized to hold and criminal terms. and the fourth Monday in October, and continue, each, six juridical days. In the county of Floyd, on the first Monday in June and the first Monday in November, and continue, each, twelve juridical days, In the county of Johnson, on the third Monday in June and the third Monday in November, and continue, each, six juridical days. In the county of Breathitt, on the fourth Monday in June and the fourth Monday in November, and continue, each, six juridical days. §2. That it shall be lawful for the several circuit court Judges author. judges in this commonwealth to hold special terms in the special chancery counties of their respective circuits, for the trial of chancery and criminal causes, when the business, in his opinion, may require it, and may require a grand jury to be impanneled, if he deem it necessary, by an order, in or out of term time; and where such order shall be made in vacation, notice of the term shall be given in such manner as the judge, in his order, shall prescribe; and where such term is ordered for the trial of criminal causes, the judge shall give to the clerk such instructions in regard to the summoning of a grand and petit jury as he shall deem right. 3. This act shall take effect on the fifteenth day of June, 1851. Approved March 22, 1851. CHAPTER 616. AN ACT to establish a Code of Practice in civil cases in the Courts of this Commonwealth. Be it enacted by the General Assembly of the Commonwealth of Kentucky, as follows: PRELIMINARY PROVISIONS. § 1. This act shall be known as the Code of Practice in civil cases, of this state. § 2. Remedies in civil cases in the courts of this state, are divided into two classes: 1. Actions. 2. Special proceedings. § 3. A civil action is an ordinary proceeding in a court of justice, by one party against another, for the enforcement or protection of a private right, or the redress or prevention of a private wrong. It may also be brought for the recovery of a penalty or forfeiture. § 4. Every other remedy in a civil case, is a special proceeding. TITLE 1. FORM OF CIVIL ACTION. § 1. The forms of all actions and suits, heretofore existing, are abolished; and hereafter, there shall be but one form of action for the enforcement or protection of private rights, and the redress or prevention of private wrongs, which shall be called a civil action. §2. In such action, the party complaining is known as the plaintiff, and the adverse party as the defendant. §3. The proceedings in a civil action may be of two kinds: 1. Ordinary; 2. Equitable. Proceedings ordinary and equitable. Must be equi had jurisdiction § 4. The plaintiff may prosecute his action by equitable proceedings, in all cases where courts of chancery, before table, if chanc'y the adoption of this code, had jurisdiction; and must so proceed, in all cases where such jurisdiction was exclusive. § 5. In all other cases, the plaintiff must prosecute his action by ordinary proceedings. § 6. An error of the plaintiff as to the kind of proceedings adopted, shall not cause the abatement or dismissal of the action, but merely a change into the proper proceedings by an amendment in the pleadings, and a transfer of the action to the proper docket. § 7. The error mentioned in the last section may be corrected by the plaintiff, without motion, at any time before the defendant has answered; or afterwards, on motion in court. §8. The defendant shall be entitled to have the correction made, in the following cases: 1. Where the action has been commenced by equitable proceedings, the defendant, by motion made at the time of filing his answer, may have them changed into ordinary proceedings, when it appears that, by the provisions of section five, the plaintiff should have adopted ordinary proceedings, and, in addition, that his answer presents a defense on which he is entitled to a trial by jury. 2. Where the action has been commenced by ordinary proceedings, the defendant, by motion made at or before the time of filing his answer, may have them changed into equitable proceedings, when it appears that, by the provisions of section four, the plaintiff should have adopted equitable proceedings. In other cases, by ordinary proceedings. Error of plain tiff not cause of dismissal, but may be changed to proper dock et. Error of plain. ti may be cortion. rected by mo Cases in which the correction may be made, If action is commenced by §9. Where the action has been properly commenced by ordinary proceedings, either party shall have the right, by ordinary pro motion, to have any issue, which, before the adoption of sues are equita this code, was exclusively cognizable in chancery, tried in ble, can have case the manner hereinafter prescribed in cases of equitable tried as equita proceedings; and if all the issues are such as, before the adoption of this code, were cognizable in chancery, though none were exclusively so, the defendant shall be entitled to have them all tried as in cases of equitable proceedings. ble proceedings. 1851. ings waived if § 10. An error as to the kind of proceedings adopted in Error as to the action, is waived by failure to move for its correction at kind of proceed the time and in the manner prescribed in this chapter; and not made in time all errors in the decisions of the court, on any of the moMode of except. tions named in this chapter, are waived, unless excepted to at the time; which may be done by the clerk noting, at the end of such decision, words of the following import: “To which decision, the plaintiff (or defendant) excepts." ing. Provisions of code as to civil actions apply to both kinds. § 11. The provisions of this code, concerning the prosecution of a civil action, apply to both kinds of proceedings, unless the contrary appears. code repealing Actions in general. § 12. The provisions of this code, repealing certain statProvisions of utes of limitation, and fixing the periods within which actions must be brought, shall not apply to actions or suits already commenced, nor to cases in which the right of action has already accrued; but the laws of limitation, now in force, shall be applicable to such cases, according to the subject of the action, and without regard to the form. statutes of limitation do not ing suits or ac apply to existtions. Certain stat. nies of limitation repealed. § 13. The following acts and parts of acts are repealed, viz: The act to reduce into one the several acts and parts of acts concerning limitations of actions, approved December 17, 1796. So much of the 46th section of the 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, as regards civil actions and suits for penalties. The 1st and 2d sections of an act to amend an act, entitled, an act to amend and reduce into one the several acts, or parts of acts, concerning limitations of actions, and for other purposes, approved January 22, 1814. The 5th section of an act authorizing suits against heirs and devisees, and limiting the time of bringing suits against executors and administrators, approved February 9, 1819. An act to provide for limitations in certain actions, approved December 1, 1823. So much of the 22d section of an act to amend the several acts against unlawful gaming, approved February 2, 1833, as regards civil actions for penalties, An act to amend an act, entitled, an act to reduce into one the several acts and parts of acts concerning limitations of actions, approved February 16, 1838. An act to amend the law limiting actions for the recovery of land by females and their heirs, approved February 7, 1840. An act limiting actions against sureties, approved February 8, 1838, except so much thereof as relates to the discharge of sureties in judgments. The 2d section of an act respecting conveyances by married women, approved February 23, 1849. So much of an act limiting the time of bringing suits against heirs and devisees, approved March 7, 1850, as prescribes the period within which original suits may be brought against heirs and devisees. § 14. Civil actions can only be commenced within the periods prescribed in this title after the cause of action has accrued. CHAPTER 2. Actions for the recovery of real property. 1851. When civil actions shall be commenced. For the recovery of real prop erty within 15 § 15. An action for the recovery of real property, can only be brought within fifteen years after the right to bring it first accrued to the plaintiff, or to the person through years. whom he claims. § 16. If, at the time when the right of any person to bring an action for the recovery of real property first accrued, such person was an infant, married woman, or of unsound mind, then such person, or the person claiming through him, may, notwithstanding the period of fifteen years has expired, bring the action within three years after the time at which the person to whom the right first accrued, ceased to be under such disability as existed when the same so accrued, or died—whichever has happened first. Savings in favor of infants, married women and lunatics. Limitation does not stop disability, nor disability disany for subsequent 17. The time within which an action for the recovery of real property may be brought, shall not be extended by reason of any disability which did not exist when the right to bring the action first accrued; nor by reason of ability of the heirs of the person to whom the right first accrued. § 18. The period within which an action for the recovery of real property may be brought, shall not, in any case, be extended beyond thirty years from the time at which the right to bring the same first accrued to the plaintiff, or to the person through whom he claims, by reason of any death, or the existence or continuance of any disability whatever. § 19. No continual claim upon or near any real property, shall preserve a right to bring an action. § 20. The provisions of the act, entitled, an act to compel the speedy adjustment of land claims, approved February 9, 1809, are continued in force. 21. An action by a female, or her heirs or devisees, for the recovery of real property, for the conveyance of which heirs. of 1851. Action by fe male or her heirs, who has conveyed. to be brought within 3 years after dis ability. Certifi cate of clerk sufficient to prove execution of deed. in favor of le heirs. she has, jointly with her husband, executed a deed after her arrival at the age of twenty-one years, and acknowledged such execution before an officer authorized to take an acknowledgment of a married woman's deed conveying her inheritance, can only be brought within three years next after she became discovert, or within three years next after the right to bring the action accrued to her heirs, where she died during coverture. In any such case, the certificate of the officer that the deed was acknowledged before him by the female, shall be sufficient proof of its execution by her, though such certificate may not, in other respects, be in compliance with the law. 22. If, in any case mentioned in the last section, the Further savings female, when she became discovert, was of unsound mind, males and her the action may be brought by her, or those claiming under her, within three years next after the removal of such disability, or next after her death-whichever has happened first. And where the female dies during coverture, and her heirs are all under the disability of coverture, infancy, or unsoundness of mind when the right to bring the action accrues to them, the action may be brought within three years next after the removal of such disability as to all of them. § 23. But the period within which an action for the recovery of real property, in any case mentioned in section twenty-one, may be brought, shall not be extended beyond ten years from the time the female became discovert, or the right of her heirs to bring the action first accrued-whichever has happened first-by reason of any disabilty what But the time beyond 10 years. not extended Civil actions for the recovery of other than real propertyWithin 15 years on judgments, decrees, & written contracts. Within 10 years on all bonds of ever. CHAPTER 3. Actions other than for the recovery of real property. § 24. Civil actions other than for the recovery of real property, shall only be commenced within the following periods after the cause of action has accrued : § 25. Within fifteen years: An action upon a judgment or decree of any court of the United States, or of any state or territory within the United States, the period to be computed from the date of the last execution regularly issued thereon. An action upon a recognizance, or a written contract, other than one for which a different limitation is hereinafter prescribed. § 26. Within ten years: An action upon the official bond of a sheriff, marshal, officers, admin sergeant, clerk, constable, or any other public officer, or his junction bonds, deputy. istrators, &c. in. &c. An action upon the official bond of a personal representative, guardian, curator, or committee. An action upon a bond for an appeal, supersedeas, attachment, injunction or order of arrest, or for the delivery |