to be recommit- offence, otherwise than by the order or process of the court wherein ted for the same he shall be bound by recognizance to appear, or some other court having jurisdiction of the cause. offence. A citizen com mitted to pri son, not to be removed but in certain cases. Penalty upon any judge or justice refusing a habeas corpus SEC. 7. A citizen of the Commonwealth committed to prison in custody of an officer for any criminal matter, shall not be removed from thence into the custody of another officer unless it be by habeas corpus, or by some other legal writ; or where the prisoner shall be delivered to the constable or other inferior officer, to be carried to some common jail, or shall be removed from one place to another within the said county in order to his discharge or trial in due course of law, or in case of sudden fire or infection or other necessity, or where the prisoner shall be charged by affidavit with treason or felony alleged to be done in any of the other of the United States of America; in which last case he shall, on the demand of the executive authority of the state from which he fled, be sent thither in custody by order of the district court, or warrant of any two judges thereof, in vacation time, or may be bound by recognizance, with securities, before them to appear there, whichsoever shall seem most proper, if the said court or judges upon consideration of the matter, shall think he ought to be put upon his trial. SEC. 8. If any judge or justice of any of the said courts in the vacation time, upon view of the copy of the warrant of commitment or detainer, or upon affidavit made that such copy was denied as aforesaid, shall refuse any writ of habeas corpus by this act requir ed to be granted, being moved for as aforesaid, such judge or justice shall be liable to the action of the party grieved. 1816. Regulations IN FORCE FROM ITS PASSAGE. AN ACT further to regulate the Circuit Courts of this Commonwealth: Approved SEC. 4. Be it further enacted, That any two justices of the as to writs of peace shall have the same power and authority to issue writs of habeas corpus. habeas corpus, as assistant judges heretofore had; and every writ of habeas corpus so issued by said justices, shall be made returnable before the judge of the circuit court, who shall be nearest to the place where the person praying the same, may be confined; and the person to whom the said writ shall be directed, shall be allowed one day for making his return, for every twenty miles he may necessarily travel in going to said judge: And if any person or persons shall hereafter fail, or refuse to obey any writ of habeas corpus so issued, or issued by a judge of the circuit court, in vacation, such person or persons so failing or refusing, shall be subject to the same course of proceedings, liable to the same fine and imprisonment, as though the said writs of habeas corpus had issued in term time. 1821. IN FORCE FROM ITS PASSAGE. AN ACT to alter the mode of admitting persons to bail under writs of Habeas SEC. 3. Be it further enacted, That justices of the peace before whom returns may be made as aforesaid, after having examined into the causes of commitment, if it shall appcar that the prisoner applying has not been confined upon suspicion of treason or murder, and that he is entitled to bail, under the constitution and laws of this state, shall immediately fix upon the sum in which he shall be required to give bail for his appearance at the next term of the circuit court for said county, and proceed to take the bond with sufficient security, agreeably to the existing laws. SEC. 4. Be it further enacted, That any officer acting under writs as aforesaid, shall be entitled to the same fees for the distances necessarily travelled, and liable to the same penalties for failure or refusal to obey, upon application of the prisoner or other person with a writ of habeas corpus, that he would now be, under the existing laws. [For the 19th section of the act of 1802, authorizing judges of the circuit court to grant writs of habeas corpus, in vacation, to operate in any part of the commonwealth. See title CIRCUIT COURTS, p. 492, ante.] [For the 11th section of the act of 1805, directing what disposition shall be made of a prisoner who applies for a discharge by a habeas corpus, and it appears that the proceedings under which he is arrested are defective, and there is reason to believe that he is guilty of a misdemeanor or felony. See title CRIMINAL PROCEEDINGS, p. 536, ante.] [For the 10th section of the act of 1812, authorizing the writ of habeas corpus, to issue where an infant or feme covert is detained by a religious association, and directing the mode of proceeding thereon. See title ALIMONY AND DIVORCE, p. 126, ante.] [For other duties of justices of the peace relating to the writ of habeas corpus. See title JUSTICES OF THE PEACE, post.] TITLE 91. HEIRS AND DEVISEES. Joint actions 1792. IN FORCE FROM FIRST OF MARCH 1793. AN ACT subjecting lands to the payment of debts: Approved December 17, 1792.-1 Litt. 128. SEC. 2. The same actions which will lie against executors or may be brought administrators may be brought jointly against them and the heirs against execu- and devisees of the dead person or both, and shall not be delayed tors, &c. of any for the non-age of any of the parties. (a) decedent. (a) The heir was always liable to an action upon the obligation of his ancestor, where he was expressly named; and upon a judgment, the whole of the lands might be extended in his hands. But if judgment were obtained against the ancestor, the obligation became thereby extinguished, and no action would lie upon it against the heir; however, after the statute of Westminster 2d, which gave the writ of elegit, a-scire facias upon the judgment against the ancestor, to have execution for a moiety of the lands, would lie against the heir; not as heir, but as terre-tenant; for it would lie against any one else who was in possession of the land. The statute of 1792 gives the action against the heir and executor or administrator jointly, where the action will lie against the executor or administrator alone; so that the heir may be sued jointly, by virtue of the statute, with the personal representative upon such a judgment. The act, being affirmative, does not take away the remedy to which the party was entitled before. (7 Monroe, 403.)-The plaintiff may still have his scire facias, without joining the personal representative; but the proceeding must be against him as tenant of the land, and the execution must be an elegit, and not a fieri facias. So the executor is still liable upon the judgment without joining the heir.-And he may have a writ of error to reverse it without making the heir a party. But, as the heir is only liable as heir, jointly with the executor or administrator, he cannot bring a writ of error in his own name, without joining the personal representative.— South's Heirs v. Hoy, 3 Bibb, 522; 5 Mon. 600; Holder's Heirs v. Commonwealth, 3 Mar407; 4 Litt. 136; 4 Bibb, 458. 2. Where heirs are not bound in the contract of the ancestor, but are liable to be sued jointly with the executors only, it seems that upon taking the bill pro confesso as to them, the decree should be of the estate descended, and not of their personal right; where the bill does not allege that there are assets, it must surely be so rendered.-Carneal's Heirs, v. Day, 2 Litt. 397. 3. The above act, authorizing joint actions against the personal representatives and the heirs, embraces all contracts, wherever and whenever made.-Carneal's Heirs v. Day, &c. Litt. Sel. Cas. 494. 4. A party in a case in which the heir might have been sued jointly, sues the executor alone, and fails to make the money upon his judgment for want of assets; he cannot pursue the heir in chancery. He should have sued the heir jointly with the personal representative.Bedell's Alm'rs. v. Keethley, 5 Mon. 598. 5. A verdict that estate descended to the heirs, which the executor sold under the directions of the will, entitles them to a judgment in bar. There can be no judgment against them quando acciderunt.- -Monroe's Ex'r. v. Wilson, 6 Mon. 122. 6. In an action against an executor and heirs 1792. IN FORCE FROM ITS PASSAGE. AN ACT to amend an act entitled "An act for establishing a Land-Office:" Approved December 22, 1792.-1 Litt. 160. Where grants deceased per sons, lands to SEC. 4. And whereas in some instances grants have issued in the names of persons who were deceased prior to the date of the have issued to grant, and cases of the same nature may happen in future: Be it enacted, That in all such cases the land conveyed shall descend to vest in the heirs the heir, heirs or devisees in the same manner as it would do had the grant issued in the lifetime of such defendant. (b) 1798. IN FORCE FROM FIRST OF MARCH, 1798. or devisees. How far the AN ACT providing that Wrongful Alienations of Lands shall be void, so far as they be Wrongful: Approved January 16, 1798.-2 Litt. 39. SEC. 2. But if the deed of the alienor doth mention, that he and his heirs be bound to warranty, and if any heritage descend to the heirs shall be demandant of the side of the alienor, then he shall be barred for as such, respectively, neither can be charged as devisees.-Ibid. 7. In such action they may sever in their pleadings; and judgments may be rendered for or against either the executor or heirs, or both, according to the evidence.-Ibid. 8. Where heirs are not expressly bound by the covenant of their ancestor, the personal representatives must be sued with them to recover money.--Conley's Heirs v. Boyle's Exr's. 6 Mon. 638. 9. Where the heirs are not expressly bound by the covenant of the ancestor, and there is no personal representative, a bill in chancery is an appropriate remedy against them, for a breach of the ancestor's covenant. A bill in chancery may be maintained against heirs and devisees, even when there is a legal remedy.-Ellis v. Gosney's Heirs, 1 J. J. Mar. 348. 10. In a common law action, the plaintiff may elect to sue the personal representative and heirs jointly, on a bond in which the latter are not expressly bound; and on a bond in which they are so bound, suit may be brought against either of them alone, or against the personal representative, or against all of them jointly. Meek's Heirs v. Ealy's Heirs, 2 J. J. Mar. 330. son, barred or bound to recompense (b) If a patent for land issues to a dead perit descends to those who were his heirs at the time of his death, and not those at the time the patent issued.-Hansford v. Minor's Heirs, 4 Bibb, 385. 2. A patent issued to a dead person prior to the above act, conferred no right; but that act vested the right which did not pass from the Commonwealth, in the heirs or devisees of the dead person, provided before that act no other grant had issued.-Lewis v. McGee, 1 Mar. 200. 3. If a patent has issued before the passage of the act of 1792, to a dead man, by virtue of that statute, it will vest directly in his legal representatives, where the decedent has made his will prior to the passage of the law, allowing after-acquired lands to pass by devise.-Skeene, &c. v. Fishback, 1 Mar. 356. 4. Grants issued after the grantee's death, vest the land in the heirs or devisees, whether the grantee died before or after the act of 1792. Adams v. Logan, 6 Mon. 177. 5. The above act vested the heir with the land entered after the date of the will, made in 1782, and not the devisee.-Bowman, &c. v. Violet, &c. 4 Mon. 351. 6. In contests with claims maintained under the above act, they are regarded as originated of that date. Ibid. where the value of the heritage that is to him descended. And if in time ve assets after any heritage descend to him by the same alienor, then shall the tenant recover against him of the seizin warranted, by judicial writ that shall issue out of the rolls of the justices before whom the plea was pleaded, to re-summon his warranty, as before has heen done in cases where the warrantor cometh into the court, saying that nothing descended from him by whose deed he is vouched.(c) 1819. Separate action may be brought against heirs or devisees, on the contract of ancestor, where it officially appears there are no assets in the hands of ex'rs. IN FORCE FROM ITS PASSAGE. AN ACT authorizing suits against Heirs and Devisees in certain cases, and limiting the time of bringing suits against Executors and Administrators: Approved February 9, 1819.-Session Acts, p. 751. SEC. 1. Be it enacted by the General Assembly of the Commonwealth of Kentucky, That in all cases where a judgment has been, or shall be obtained against the executor or administrator of a deceased person, on a contract on which a joint action might have been maintained against the executor or administrator and the heirs or devisees of the deceased person, if it shall appear, by a judgment of record, or by the return of the proper officer, that there is not property of the deceased in the hands of the executor or adJudgment a ministrator, to satisfy such judgment, it shall be lawful to bring a adn'rs. on such separate suit against the heirs or devisees on such contract; (d) and contract, no bar the judgment against the executor or administrator, if not satisfied, to recovery, un- shall be no bar to the suit against the heirs or devisees. or adm'rs. to satisfy it. gainst exr's. or less satisfied. SEC. 2. On all such contracts, if no person administer on the When separate goods and chattels of the deceased for the space of one year after action may be maintained a- his or her death, a separate action may be maintained against the gainst heirs,&c. heirs and devisees. Facts giving such right to be set forth, &c. SEC. 3. In such actions, the facts authorizing the suit to be brought separately, shall be distinctly averred in the declaration. (e) (e) "Our parent state, as far back as 1785, passed an act upon the subject of which the above statute of 1798 is a substantial, if not a literal copy. According to Judge Tucker, in his comments, the effect of the Virginia act seems to be, that all warranties are void in regard to the heir, unless he have assets to some extent from the warranting ancestor. If the heir have assets to any extent, the warranty is binding on him to that extent. See note 8, to Tucker's Blackstone, 2d vol. 303. If the heir have assets by descent, he is bound by the warranty of his ancestor, although it commenced by disseizin. Such is the effect of the above section of the statute.-Logan v. Moore, 1 Dana, 59, (d) A surety who has paid the debt of his. principal, and afterwards obtained judgment against his executor, and had a fieri facias returned "no property," may maintain an action under the above act against the derisees.-Buckner's Dev's. v. Morris, 7 J. J. Mar. 648. 2. Lands lying out of this state cannot be assets in the hands of the heir; consequently the devisee would not be liable to the debts of the devisor on account of such lands.--Payne, &c. v. Logan's Adm'r. 4 Bibb, 402. 3. The heir is not liable upon a covenant of warranty in a conveyance of lands by executors, under a power given in the will.-Nicholas' Heirs v. Jones, 3 Mar. 386. (e) To authorize sustaining an action of as |