Proceedings in Civil Suits. tion, and the costs of such suits as the personal representative is directed by law to institute, shall be paid in full before any distribution also, where a creditor has a lien which is not sufficient to discharge his debt, he shall not be entitled to any portion of the residue of the estate, until all the creditors not having liens shall have received a sum equal, pro rata, with such lien creditor. Where the personal estate is not sufficient to pay the debts, the personal representative may file a bill in Chancery to subject the realty to the payment thereof, making the heirs, devisees, legatees, and distributees, and creditors, parties. The court may decree a sale, after proper notice, and upon reasonable credits; and distribute the proceeds among the creditors, as above directed. A master commissioner shall be appointed to ascertain the condition of the estate, and before whom the creditors shall prove their claims. The holders of fraudulent conveyances may be made parties to the bill, and the property subjected to the payment of the debts of the estate. (a) Where any person dies intestate, leaving a widow, that portion of his estate which would be by law exempt from execution, is not considered assets, but the same, together with a sufficiency of provisions to sustain the widow and infant children, if there be any, for the term of twelve months, shall be appropriated by the administrator to their use: and if there be not a sufficiency of provisions on hand, so much of the live stock and growing crop shall be set aside by the commissioner appointed to appraise the estate, as may be necessary to supply the deficiency. (b) 9. Proceedings in Civil Suits. Imprisonment for debt.-Imprisonment for debt is abolished in Kentucky, (c) except that a capias ad satisfaciendum may be issued on a judgment in trespass, vi et armis, or for words spoken or written, or for seduction, in which cases the defendant may release his person by availing himself of the law for insolvent debtors, on giving the plaintiff ten days' notice. (d) No person can be arrested on any original or mesne process (a) Lough. Dig. 240. (b) Acts of 1845, 35. (d) Ib. 630. Proceedings in Civil Suits. or held to bail, unless the plaintiff make an affidavit that he verily believes the defendant will leave the commonwealth, or move his property out of the same before judgment; or otherwise abscond, so that the process of the court after judgment cannot be served upon him. Upon such affidavit being filed, the clerk shall indorse that bail is required, and in what sum. (a) Any person arrested under an order requiring bail, or on a writ of ne exeat, may avail himself of the act for the relief of insolvent debtors, on giving reasonable notice to the plaintiff or his agent, if in the state; if not, by filing such notice in the office which issued the process against him. (b) Insolvent debtor.-Any person taken or charged in execution, may apply to two justices of the peace, deliver in a schedule of his estate and effects, and take the oath of an insolvent debtor. His person is released, but any estate he may subsequently acquire is liable for his debts. The schedule is filed in the clerk's office, and the property therein enumerated is vested in the sheriff, who sells the same and distributes the proceeds among the creditors. (c) Judgment and Executions. The writs of fieri facias and elegit are in use in Kentucky, but the former runs against the real as well as personal estate of the debtor. The personalty must however be first taken and sold. The estate of the defendant is bound from the time of the delivery of the writ of execution to the officer, who indorses thereon the exact date of its reception. A landlord who reserves rent in money, has a preference over any executions; creditor for one year's rent. (d) Various articles, too numerous to mention, principally furniture and tools, and provisions for six months are exempt from execution. (e) The equitable interest of a mortgagor in any real or personal estate may be sued, subject to the incumbrance, and saving to the mortgagor the right of redeeming the same within the year. The (b) Ib. 196. (a) M. & B. Dig. 195. (c) Lough. Dig. 273. As a capias ad satisfaciendum may be issued on judgments in certain actions of tort, the above law is still in force. See Imprisonment for Debt. (d) M. & B. Dig. 625, 631. (e) Lough. Dig. 235, 236. Proceedings in Civil Suits. purchaser of such equitable interest in personalty is required to give bond, with approved security, that he will not remove the same from the commonwealth, but hold it subject to the order of any court of competent jurisdiction. Where goods and chattels are levied upon an execution, the same shall be restored to the owner upon his executing an obligation with security for their forthcoming at the time and place appointed for the sale: which obligation, if forfeited, has the force of a judgment, and execution may be issued thereon against the principal and security, upon which no indulgence will be allowed. A defendant may also at any time before sale replevy his property for the space of three months, by giving bond with sufficient security for the payment of the debt, interest, and all costs, at the expiration of that period; which bond, if forfeited, is to have the effect of a judgment, on which execution may be issued as in the case of a forfeited forthcoming bond. Where real estate is taken in execution and offered for sale, it will, unless it brings two thirds of its appraised value, be subject to redemption by the debtor at any time within one year from the sale, on payment of the purchase money, and ten per cent. interest. (a) Remedy against sheriffs and attorneys for misconduct.—Any sheriff failing to pay over money collected on an execution, or failing to pay over the amount of the debt and costs where he has suffered a defendant in custody under a ca. sa. to escape, may, upon a motion by the creditor in the execution, of which ten days' notice has been given, be amerced, for the benefit of such creditor, in a sum equal to the amount specified in the writ, with interest at the rate of fifteen per cent. from the return of the execution until discharge of the judgment. (b) In order to entitle a plaintiff residing out of the county to recover from the sheriff the amount of money collected by him, the former must have appointed an agent in the county, or made a personal or written demand therein. (c) An attorney who fails to pay over money which he has collected may be suspended from practice; and a judgment upon motion (a) M. & B. Dig. 650. (b) Ib. i. 624. (c) Davis v. Armstrong, 1 Mars. 366; Allen v. Grant, 1 Mars. 409. Proceedings in Civil Suits. after ten days' notice may be also rendered against him in favor of the creditor, for the amount due, and cost of the motion. (a) Courts. The judicial system of Kentucky is so similar in its general features to that of Virginia, that the discrepances need not be pointed out. (a) M. & B. D. 173, 178. 9. PROCEEDINGS IN CIVIL SUITS. 10. EFFECT OF DEATH UPON THE RIGHTS OF CREDITORS. 1. Choses in Action. Contracts. All contracts which are only joint according to the common law, are directed by statute, to be construed as joint and several, and the effects and incidents of a several contract attaches to them. (a) All instruments of writing professing on the face thereof to be sealed, and to which the person executing the same, shall affix a scrawl by way of seal, are to be adjudged as sealed. (b) All notes in writing for the payment of a sum of money or property therein mentioned, to any person or order, or to bearer, shall import a consideration. (c) All bonds or promissory notes for money or property may be assignable by an indorsement thereon, and the assignee may bring an action thereon in his own name; the obligor being allowed every just discount against the assignor before assignment, and every defence to the instrument which he might have made, had it remained in the hands of the assignor. (d) Bills of exchange and promissory notes.-All promissory notes, which express on their face, to be for "value received, negotiable and payable without defalcation," are rendered negotia(a) Revised Statutes 216. (c) Ib. 189. (d) Ib. 190. (b) Ib. |