for failing to received by him

pay over money

public buildings pay the same over to the use and benefit of the county, or trustees entitled to the same, it shall and may be lawful for the county court by their county attorney, or the said trustees or their successors in office, to recover all such sums of money so collected, by motion in the circuit court wherein such recovery may be had, ten days previous notice being given; on any execution for which, the clerk shall endorse "no security of any kind shall be taken."

dictment a

ers

leges, meeting houses, &c.

Grand Jury SEC. 4. The grand jury of any county may find an indictment may find an in- for any trespass, damage or injury done to any of the county buildgainst trespassings, university, college, seminary of learning or school house, as on public specified in this act; or for any trespass, damage or injury done to buildings, colany church, meeting house or encampment, erected for religious worship, as in other cases of trespass; and all recoveries so had, shall be applied as directed by the first section of this act; and the several sheriff's in this commonwealth collecting said money, shall account for the same as in other cases, when they collect money and fail to pay it over.

Penalties in

flicted how ap

plied.

Plaintiffs un

compelled to prove actual possession.

SEC. 5. It shall not be necessary for the plaintiff or plaintiffs, in der this act not any action of trespass, or other action provided for in this act, to prove actual possession, but only an occasional or general use and occupancy by those for whose [use] and benefit the' action may be brought; and the death of any one or more of the trustees of the university, college, seminary or school house, shall not abate the said action; but the same shall continue and be prosecuted as if said death had not happened.

Suit not to a bate by the death of a trus

tee.

1821.

The erection

county build

to the lowest

IN FORCE FROM ITS PASSAGE.

AN ACT to restrict the County Courts in laying their Levies and the mode of let ting their Public Buildings: Approved December 21, 1821.-Session Acts, page 443.

SEC. 3. Be it further enacted, That whenever any of the counof all public ty courts aforesaid may desire to erect a public edifice or building ings to be let at for the convenience of their said counties, it shall be their duty to public auction appoint three or more discreet persons, not justices of the peace, bidder, by com- commissioners, whose duty it shall be to let the erection of such missioners not building publicly, at auction, to the lowest bidder; and all private agreements or contracts made by such commissioners, with any inAll private dividual or individuals, shall be taken, and the same are hereby declared to be utterly void and of no effect.

members of the

court.

contracts and agreements void.

take bond and

SEC. 4. Be it further enacted, That in all cases it shall be the duty The com'rs to of the commissioners to take bond, with sufficient security, in the security from penalty of at least double the amount of the contract, from the unthe undertaker. dertaker, payable to the county court of such county,

conditioned

for the true and faithful discharge of the work so undertaken; which bond shall be lodged in the clerk's office of the county court, upon which, in case of failure, suit may be commenced in the name of the county court of such county, and recovery had as in other cases of covenant broken.

How suit may

be instituted on

such bond.

TITLE 35.

CATTLE.

1785.

IN FORCE FROM FIRST OF JANUARY 1787.

Bills of health to be produced by persons driving cattle into

or through the

state.

AN ACT for preventing the Infection of Horned Cattle.-2 Litt. 565. SEC. 1. Be it enacted by the General Assembly, That the driving of cattle into or through the commonwealth, or any part thereof, if it be not to remove them from one plantation to another of the same owner, or to be used at his house, shall be deemed a nuisance, unless the driver shall produce to any freeholder of a county wherein the drove is passing, who shall require it, a bill of health, signed by some justice of the commonwealth, containing the number of the drove, with descriptions of the cattle, by their sexes, flesh marks, and ear marks, or brands, and certifying them to be free from distemper; or, notwithstanding he may produce such bill of health, unless he shall forthwith obtain another at the like requisition, if any such freeholder make affidavit before a justice, that he hath cause to suspect some of the cattle to be distempered. Such bill of health How obtained. shall not be given, in either casc, before two disinterested freeholders, appointed by warrant of a justice, shall have viewed the cattle, and reported them to be free from distemper. A freeholder refusing to obey such warrant, shall be amerced by the justice granting such warrant, in any sum not exceeding twenty-five shillings. If the cattle appear by the report to be distempered, the owner may impound them; and if he refuse to do so, or if he suffer them to pered. escape from the pound, before a justice shall have certified that they may be removed without annoying others, the same justice, or some other to whom information shall be given of the fact, shall by his order cause them to be slaughtered, and their carcasses, with the

Proceedings when cattle are found distem

Owners of distempered cattle to confine them,

and when dead

bury them.

hides on, (but so cut or mangled that none may be tempted to take them up and flay them,) to be buried four feet deep. Those who shall be employed in executing such orders, shall receive five shillings for every head so buried, to be paid by the county wherein it shall happen; and every one appointed by the order, who shall refuse or neglect to execute it, shall be amerced in the sum of five shillings for every head so ordered to be buried. Every one shall so restrain his distempered cattle, or such as are under his care, as that they may not go at large off the land to which they belong, and when they die, shall bury them with their hides, in manner aforesaid; and knowingly offending in either of those instances, shall be amerced in the sum of twenty shillings for every head they shall neglect so to bury.

TITLE 36.

Ꮯ ᎪᏙ Ꭼ Ꭺ Ꭲ .

1796.

IN FORCE FROM FIRST OF JANUARY 1797.

AN ACT to reduce into one the several acts for preventing vexatious suits, and regulating proceedings in civil cases: Approved December 19, 1796.-1 Litt. 500. [SEC. 45.] "The person who enters a caveat shall express therein the cause why a grant should not issue, and the nature of the right on which the plaintiff therein claims the said lands, (a) at the time of entering such caveat, he shall file with the register an affidavit, (b) that such caveat is really and bona fide made with an intention of procuring the lands for the persons in whose name such caveat is entered, and not in trust for the benefit of the person against whom such caveat is entered: and all caveats entered contrary to the di

(a) The plaintiff in a caveat can rely only on the points set forth in the caveat as the cause thereof, and the facts required in the act of 1811, to be set forth at the trial, are only exemplifications of those causes.-Justices of Allen county v. Allen, 2 Mar. 32.

2. The court may decide against the plaintiff in a caveat on the merits of his claim, notwith

standing he has not filed the statement as required by the act of assembly.-Davis v. Gray, 3 Litt. 453.

(b) The above act requires the affidavit to be made by the party in whose name and for whose benefit the caveat is entered; and an affidavit by an agent will not do.-Ross v. Neal, 2 J. J. Mar. 25.

void.

ter copy is filed with the clerk.

What proceedif the summons ings may be had on a caveat is not executed.

On process executed court to

proceed in a summary way, and no appeal

rections of this act, shall be absolutely null and void. He shall take Copy of caveat to be lodged from the register a certified copy thereof, which within fifteen days with the clerk, thereafter, he shall deliver to the clerk of the district court, or court if not, to be of quarter sessions, in which he means to prosecute the same, or such caveat shall become void; (c) the said clerk on receiving the Proceedings afsame, shall enter it in a book, and thereupon issue a summons, reciting the cause for which such caveat is entered, and requiring the defendant to appear; if in a district court, on the third day; or if in a court of quarter sessions, on the first day of the succeeding court, and defend his right: whenever a summons on a caveat shall either not be returned at all, or be returned not executed, the caveat upon which such summons shall have issued, shall be dismissed with costs, unless the court (before [whom] such caveat shall be depending) shall be satisfied that the summons (not having been executed) did not proceed from the neglect of the party who entered such caveat: on such process being returned executed, the court shall proceed to determine the right of the cause in a summary way without pleadings in writing, empannelling and swearing a jury for the finding of such facts as are material to the cause, and are not agreed by the parties, and shall thereupon give judgment, (d) on which no appeal or writ of error shall be allowed. A copy of such judgment (if in favor of the defendant) being delivered into the land office, shall vacate the said caveat; and if not delivered within three months, a new caveat may for that cause be entered against the grant: and if the said julgment be in favor of the plaintiff, upon delivering the same into the land office, together with a plat and certificate of the survey, and also producing a legal certificate of new rights on his own account, he shall be entitled to a grant therefor; but on failing to make such return, and producing such certificate within six months after judgment so rendered, it shall be lawful for any other person to enter a caveat for that cause against issuing the grant; upon which subsequent caveat such proceedings shall be had as is before directed in the case of an original caveat; and in any caveat where judgment shall be given for the defendant, the court shall award him his costs, and may compel the plaintiff in any caveat (if they think fit) to give security for costs, or on failure thereof, may dismiss his

(c) See the act of 1811, note (e) post.

(d) The plaintiff in a caveat cannot recover unless his own claim is valid, however invalid that of his adversary may be.-Hendricks v. Bell, 1 Bibb, 138; Justices of Allen county v. Allen, 2 Mar. 31; Whitley v. Shirley, 3 Mar. 131.

2. Caveat is the proper mode by which to ar

allowed.

Effect of judg ment for plaintiff or defendant, and in what

cases a new ca

veat may be entered.

Costs regulated

rest the completion of an illegal claim by obtaining a patent therefor.-Patterson v. Trabue, 3 J. J. Mar. 599.

3. Omitting to file a caveat against the emanation of a patent on a conflicting land title, does not prevent the party from resorting to a court of chancery to have the titles tried there.-Crow's Heirs v. Harrod's Heirs, Har. 438.

suit; and in case the plaintiff in any such caveat shall recover, the court may, if they think it reasonable, award costs against the defendant."

1809.

issue in certain cases.

Where to be prosecuted.

Appeals there on may be had.

IN FORCE FROM ITS PASSAGE.

AN ACT to authorize the appointment of a Sergeant to the Court of Appeals, and allowing appeals in certain cases of Caveat: Approved February 11, 1809.4 Litt. 80.

SEC. 1. Be it enacted by the General Assembly, That on all Caveats may claims to land accruing under any act or acts of assembly which have been passed by the Commonwealth of Kentucky, authorizing the appropriation of any vacant land, caveats may be filed and prosecuted in the same manner and under the same rules and regulations as are prescribed in an act entitled "an act to reduce into one the several acts for preventing vexatious suits, and regulating proceedings in civil cases," except that the caveat shall be prosecuted in the circuit court of the county where the land lies, and that from any judgment rendered by any circuit court on any caveat filed and prosecuted under this act, either party may appeal to the court of appeals on giving bond with security, and otherwise proceeding as in other cases of appeal. Nothing in this act contained shall be construed in anywise to alter or change the law respecting caveats prosecuted under rights derived from the laws of Virginia, but the same shall remain as if this 'act had never passed, nor shall any thing herein contained be construed as giving a right to sue out a writ of error on any judgment on a caveat, in which an appeal is by this act allowed: and it is hereby declared that every such judgment shall be final, unless an appeal is prayed during the term of that court in which it shall be pronounced.

Proviso.

No writ of er

ror to be prose

cuted.

Grant not to is

in caveat or any

1811.

IN FORCE FROM ITS PASSAGE.

AN ACT better to regulate proceedings in Caveats: Approved January 31, 1811. 4 Litt. 282.

SEC. 1. Be it enacted by the General Assembly of the Commonsue to plaintiff wealth of Kentucky, That from and after the passage of this act, person for him no grant shall issue to the plaintiff in any caveat, entered or to be till the caveat entered, or to any other person in trust for the plaintiff, or to his use, either upon the entry, location or survey upon which such caveat may be bottomed, or upon any other claim, so as to include the land or any part thereof, within the survey, against which such caveat is or may be entered, until such caveat shall be dismissed,

is determined.