1854. deceased defendant, by an action prosecuted by ordinary proceedings, without verification of the petition. That chapter six, of title fifteen, be stricken out and repealed. That in title ten the following chapters be added: 4. For the settlement of estates of deceased persons. 7. Civil proceedings on behalf of the commonwealth. 9. Forcible entry and detainer. 10. Probate of wills. 11. Settlement of the accounts of fiduciaries, &c., by the county court. 12. Caveats. 13. Writs of mandamus and prohibition. 14. For repealing or vacating charters, and preventing the usurpation of an office or franchise. 15. Proceedings for the sale of the real property and slaves of infants, persons of unsound mind, and married women. CHAPTER 3. For alimony and divorce. § 1. The action for alimony or divorce shall be by equitable proceedings. §2. The pleadings are not required to be verified by affidavit. But either party may file interrogatories to the other in regard to any matter of property involved in the action, which shall be answered on oath, as interrogatories in other actions, and have the same effect. § 3. The statements of the petition for a divorce shall not be taken as true because of the defendant's failure to answer, or his or her admission of their truth. § 4. The plaintiff, to obtain a divorce, must allege and prove, in additition to a legal cause of divorce 1. A residence in the state for one year next before the commencement of the action. 2. That the cause of divorce occurred or existed in this state, or if out of the state, either that it was a legal cause of divorce in the state where it occurred or existed, or that the plaintiff's residence was then in this state. 3. That the cause of divorce occurred or existed within five years next before the commencement of the suit. § 5. During the pendency of an action for divorce or alimony, the court may allow the wife maintenance, and enforce the payment of the same by orders and executions, and proceedings as in cases of contempt. § 6. In every final judgment for a divorce from the bond of matrimony, an order shall be made, that each party be restored to all property not disposed of at the commence ment of the action, which either party obtained from or through the other during the marriage, and in consideration or by reason thereof. The proceedings for enforcing this order may be by petition of either party, specifying the property the other has failed to restore; upon which, the court may proceed to hear and determine the same, in a summary manner, after ten days notice to the opposite party. §7. The proceedings for annulling a final judgment for a divorce from the bond of matrimony, shall be a joint petition of the parties, verified by both parties in person, filed in the court rendering the judgment, upon which the court may forthwith annul the divorce. 8. To annul a divorce from bed and board, either party may file a petition setting forth a sufficient cause for annulling the same; on which, a summons shall issue against the other, and other proceedings be had, as in actions by equitable proceedings. CHAPTER 4. For the settlement of estates of deceased persons. 1. The personal representative, an heir, devisee, legatee, distributee, or creditor of a deceased person, may institute an action by equitable proceedings for the settlement of his estate, and in such action may make all having an interest in the estate and settlement defendants. §2. In an action for the settlement of the estate of a deceased person, if it shall appear that the personal estate is insufficient for the payment of all debts, the court may order the slaves and real property, or either, descended or devised to the heirs or devisees, who may be parties to the action, or so much thereof as shall be necessary, to be sold for the payment of the residue of such debts. 3. In all actions for the settlement of the estates of deceased persons, the court shall make an order for the creditors of such decedents to appear before a commissioner, to be appointed by the court, and prove their claims by a certain day to be named in the order, notice of which shall be given by advertisement in a newspaper; or, if none is published in the county, then by such other modes as the court may judge best calculated to give such creditors actual notice of the order; and in addition to the advertisement in a newspaper, the court may direct publication in other modes. 4. A creditor appearing before the commissioner and presenting his claim becomes thereby a party to the action, and is concluded by the final judgment of the court allowing or rejecting his claim. 5. Creditors failing to appear and prove their claims, agreeably to such order, shall have no claim against the executor or administrator, who has actually paid out the estate 1854. 1854. in expenses of administration, and to creditors, legatees, or distributees. § 6. Legatees and distributees shall be liable to a direct action by a creditor to the extent of estate received by each of them, notwithstanding the failure of the creditor to appear, and the discharge of the personal representative, as prescribed in the preceding section; and that liability shall continue for the same period that the liability of the personal representative would have continued but for said discharge. §7. The court shall require the distributee or legatee, before receiving his distributive share or legacy, to execute bond, with good surety, to the commonwealth, conditioned to pay his proportion, not exceeding the amount received by him, of any debt which may appear against the estate. of the decedent within five years after the grant of administration on the estate. Any creditor may institute an action on said bond, within five years after the grant of administration, but not after. § 8. Upon the institution of the action mentioned in this chapter, an order enjoining the prosecution of actions. against the personal representative, or heir, by creditors, for their demands, shall be entered. But such enjoining shall not be made, unless the action for the settlement of the estate be commenced in three years after the qualification of the personal representative. § 9. Nothing in this code shall be construed as dispensing with the affidavit required in sections 35 and 36, of article 2, chapter 37, of the Revised Statutes, but said sections, as well as section 38, of the same article, shall remain in full force, and be applicable to all actions or proceedings to enforce a claim against the estate of a person deceased; and no suit shall be brought against a personal representative until after a demand is made of him, accompanied with the affidavit required. CHAPTER 5. For enforcing the satisfaction of judgments. § 1. After an execution of fieri facias, directed to the county in which the judgment was rendered, or to the county of the defendant's residence, is returned by the proper officer, either as to the whole or part thereof, in substance, no property found to satisfy the same, the plaintiff in the execution may institute an action by equitable proceedings in the court from which the execution issued, or in the court of any county in which the defendant resides, or is summoned, for the discovery of any money, chose in action, equitable or legal interest, and all other property to which the defendant is entitled, and for subjecting the same to the satisfaction of the judgment; and in such actions, persons indebted to the defendant in the execution, or holding the money or property in which he has an in terest, or holding the evidences or securities for the same, may be also made defendants. §2. The answers of all the defendants shall be verified by their own oath, and not by that of an agent or attorney, and the court shall enforce full and explicit discoveries in such answers by process of contempt. §3. In the action mentioned in the preceding sections, the plaintiff may have an attachment against the property of the defendant in the execution, similar to the general attachments provided for in chapter three, of title eight, without either the affidavit or bond therein required. § 4. A lien shall be created on the property of the defendant by the levy of the attachment or service of the summons, with the object of the action indorsed thereon, on the person holding or controlling his property. 5. The court shall enforce the surrender of the money, or securities therefor, or of any other property of the defendant in the execution, which may be discovered in the action, and for this purpose may commit to jail any defendant or garnishee failing or refusing to make such surrender, until it shall be done, or the court is satisfied that it is out of his power to do so. CHAPTER 6. Summary proceedings. § 1. Judgments and final orders may be obtained on motion, by sureties against their principals; sureties against their co-sureties, for the recovery of money due them on account of payments made by them as such; by clients against attorneys; plaintiffs in execution against sheriffs, constables, and other officers, for the recovery of money or property collected for them, and damages; and in all other cases specially authorized by statute. 2. Notice of such motion shall be served on the party against whom the judgment or order is sought, at least ten days before the motion is made. 3. The notice shall state in plain and ordinary language the nature and grounds of the motion, and the day on which it will be made. 4. Unless the motion is made or entered on the motion docket on the day specified in the notice, it shall be considered as abandoned. 5. The motion mentioned in this chapter may be made on any day of the term of the court. §6. The motion shall be heard and determined without written pleadings, and judgment given according to law and the rules of equity. CHAPTER 7. Civil proceedings on behalf of the commonwealth § 1. All debts due to the commonwealth of Kentucky are recoverable by motion in the Franklin circuit court. 1854. 1854. $2. Where the debt is due by a sheriff, clerk, or collector of the revenue, or any other receiver of public moneys, for money collected or received, and such officer, collector, or receiver, has failed to pay the same in the manner and at the time prescribed by law, the motion for the recovery of such debt may be made at the regular term of said court next succeeding such failure, without any notice to such debtor or his sureties. § 3. Where officers, corporations, or officers of corporations, are required to report to the auditor of public accounts the moneys in their hands belonging to the commonwealth, or due by them, or by a corporation, to the commonwealth, at a certain period or periods fixed by law, and a fine or penalty is imposed for such failure, the motion for the recovery thereof may be made at the term of said court next after such failure, without any notice to said party in default. §4. In all other cases, notice of such motion shall be served on the debtor, or person in default, ten days before the making thereof. § 5. The notice shall in general terms state the nature and grounds of the motion, and the day on which it will be made. The notice must signed by the attorney general. § 6. Where a debt due to the commonwealth appears upon the books of the auditor of public accounts, or of any other public officer, whose duty it shall be to audit and keep an accurate account of such debt, a copy of the balance due upon the books of such auditor or officer, certified by him to be the correct and true balance, shall be sufficient evidence of such indebtedness. § 7. All questions of law or fact arising on said motions, shall be determined by the court. § 8. Where the debt due the commonwealth is uncertain in amount, or depends on the settlement of a complicated account or transaction, or in any other case in which the attorney general thinks proper, he may bring an action therefor by ordinary or equitable proceedings in the Franklin circuit court. § 9. Precedence shall be given in all courts to actions, motions, and other proceedings in which the commonwealth is a party, for its own use, over any other business of the court. § 10. When depositions are required to be taken in any civil proceeding in behalf of the commonwealth, the attor ney general may require the commonwealth's attorney of the district, or the county attorney of the county in which the depositions are to be taken, to attend to the taking of the same, and examine or cross-examine the witnesses, whose duty it shall be to attend to the taking of the same, and he shall be allowed five dollars per day for each day he may be so engaged in taking such depositions. 11. Whenever an execution against a public debtor |