tion therein mentioned, directed to be made against the absentee, shall be posted up at the front door of the court-house, and that another copy shall be published on some Sunday immediately after divine service, at some church or meeting-house door, be, and the same is hereby repealed. SEC. 2. And be it further enacted, That a certificate of the prinCertificate of ter in whose paper the said order shall have been published agreeaprinter evibly to the said act, that it has been so done, together with a copy of said publication, shall be deemed and held sufficient evidence of that fact. (i) dence of publication. (i) In the publication of the order of advertisement against an absent defendant, the omission of the term when the order was made, is a fatal defect.-Miller v. Hall & Hanks, 3 Mon. 243. The certificate of the order of publication must shew in what successive months the order was made.-Ibid. The Editor and not his proxy, must certify the publication, and that he is Editor, must be stated on the certificate.-Ibid. 2. The Court of Appeals will take judicial notice that certain persons are officers, without their names of office appearing in their acts. But it must appear on the face of the certificate of the insertion of the order of publication in the newspaper, that the person certifying is the Editor.-Evans v. Benton, 3 Mon. 390. 3. To advertise against one not made party by the bill, and afterwards insert the name as an amendment, will not do.-Taylor v. Bate, 4 Mon. 268. 4. Under the act of 1796, an affidavit of the service of a subpoena or publication of an order in a suit against an absent defendant, could not be made before a justice of the peace. It was necessary for the orders of proclamations, &c. against defendants, to be proclaimed in the church and posted at the court-house door before the appearance day, and for the proof thereof to appear in the cause.-Green's Heirs v. Breckinridge's Heirs, 4 Mon.543. Publication of an order requiring the defendant to appear years before the order is nought. Ibid. Recital in a decree, of the publication of the orders against an absent defendants, does not prove it, but the evidence must be filed.-Ibid. Decrees obtained against absent defendants by constructive notice, of proclamation and publication in the newspapers are naught, unless it appears that all the requisites of the law as to the orders and the advertisements of them are complied with.—Ibid. 5. Certificates of the publication of orders for the appearance of absent defendants, must show that the number of insertions required took place between the date of the order and appearance day.-Milam v. Thomasson, 7 Mon. 325. 6. Printer's certificate, after the appearance day for the absent defendants, stating the order had been published nine weeks, without stating when, is insufficient, and the decree void.—Tevis' Representatives v. Richardson's Heirs, 7 Mon. 658. 7. Certificate of publication to which editor's name is signed by another, is no evidence of publication.-Nicholas Adm'r. v. Gratz, 2 J. J. Mar. 486. 8. Certificate of publication must show when, "and in what paper the order of publication was published.-Hopkins v.Claybrook,5J.J.Mar.236. 9. It has been decided in various cases, that the certificate of the order of publication against absent defendants must be made by the editor. -Wilkinson v. Perrin, 7 Mon. 217; Freeman &c. v. Brown, 7 Mon. 264; Bainbridge v. Owen, 2 J. J. Mar. 463, &c. But on a full argument on a re-hearing, the attention of the court was drawn to the particular expressions of the above act, and a tificate should be made by the printer, and that decision given that the law requires that the cerhe should, pro forma, style himself printer and proprietor of a particular paper; and that a certificate given by one styling himself editor, is not a compliance with the above act of assembly. Brown v. Woods, &c. 6 J. J. Mar. 18. This decision has been since uniformly followed.-Sprague v. Sprague, 7 J. J. Mar. 331; Hay v. McKinney, 7 J. J. M. 442. 10. Certificate of publication to which the order of Court is not attached, does not prove that the order made by the court has been published, and is therefore insufficient.-Ferrit v. Combs, 7 J. J. Mar. 247. 1810. IN FORCE FROM FIRST OF JUNE 1810. AN ACT to regulate proceedings in suits at law, and in Chancery: Approved January 31, 1810.-4 Litt. 180. to SEC. 26. In suits in chancery against absent defendants, orders Proceedings against absent requiring the appearance of the defendant or defendants, and pub- defendants lication in a newspaper, shall be had as heretofore. The publica- be as heretofore tion in a newspaper shall authorize the complainant or complainants to proceed in the same manner as if process were returned executed, to the term at which the defendant or defendants may by such publication be required to enter an appearance: Provided, however, That such absent defendant or defendants shall be permitted to open a decree in such cases, in the same manner as if this act had not passed. 1815. IN FORCE FROM ITS PASSAGE. AN ACT to amend the several acts respecting proceedings in Chancery, and at law: WHEREAS, doubts exist, whether a suit in chancery can be maintained against absent heirs, whose names are unknown, except where the object of such suit is to obtain a division of lands: "Therefore, SEC. 1. Be it enacted by the General Assembly of the Commonwealth of Kentucky, That all suits in chancery, which may be brought against the heirs of any decedent, where the names of such heirs are known, may be brought against such heirs, where the names are unknown to the complainant: Provided, however, That such complainant, before the emanation of any process, or making any order against such heirs, do file in the clerk's office, with his or her bill, an affidavit, (j) stating that he or she does not know the names of such heirs. (j) In proceeding against heirs whose names are unknown, there ought to be an affidavit that their names are unknown filed in the clerk's office; alleging it in the bill is not sufficient.Lawlin's Heirs v. Clay, 4 Litt. 283. 2. If bill alleging that heirs are unknown be sworn to, it is unnecessary to file affidavit to that effect.-Whitlege's Heirs v. Callis, 2 J. J. Mar. 403. 3. In a bill against unknown heirs, the want of an affidavit of complainant that the heirs are VOL. I. unknown to him, would be fatal on demurrer; or where an appearance is entered, the decree may be reversed or set aside. But such decree, and a conveyance of title made in virtue thereof, is not void, but only voidable.-Hynes v. Oldham, 3 Mon. 267. 4. Quere: Whether a purchaser can be compelled to accept a title obtained by a decree against unknown heirs? Where the land had been devised or conveyed, a decree against unknown heirs is nought. That the decree against 14 Same proceedings to be had when some are known and some unknown. SEC. 2. And be it further enacted, That in all cases where the names of some of the heirs are known to the complainant, and some are unknown; (k) and in all cases where the complainant shall know the names of some of the heirs, and shall not know whether there are others or not, it shall be lawful for him or her to proceed by subpana against those who are known; and by advertisement against those who are unknown, in the same manner he or she might, if the names of all were unknown. 1819. IN FORCE FROM ITS PASSAGE. AN ACT to regulate the practice of the General Court in certain cases: Approved February 6, 1819.-Session Acts, page 697. Orders of In all cases of orders of publication against absent defendants, publication in general court taken in the general court, where said order shall have been regumay be inserted larly made, and a copy thereof returned and filed in the cause, and in any authorized newspaper proved or certified as heretofore, three months before any succeeding term of said court, it shall, and may be lawful for the court thereupon to proceed, at the next term, to make such decree as to the court may seem lawful and right, any law to the contrary notwithstanding. 1823. IN FORCE FROM ITS PASSAGE. AN ACT to prescribe the duties of the Judges of the Court of Appeals, and for other purposes: Approved December 29, 1823.-Session Acts, 1823, p. 372. SEC. 4. Be it further enacted, That orders of publication against non-resident defendants in said court, [court of appeals,] may be inserted in any legally authorized newspaper published in this state. 1827. IN FORCE FROM ITS PASSAGE.. AN ACT to amend the laws in relation to absent defendants: Approved January 25, 1827.-Session Acts, 1826. p. 158. SEC. 1. Be it enacted by the General Assembly of the Commonwealth of Kentucky, That from and after the passage of this act, unknown heirs is erroneous for the lack of the affidavit, is an objection to the title thus obtained. -Tevis' Representatives v. Richardson's Heirs, 7 Mon. 657. (k) When some of the heirs are unknown, it is necessary, before obtaining an order of publication against them, to file in the clerk's office an affidavit of that fact.-Dawson v. Clay's Heirs 1 J. J. Mar. 166. 100 it shall and may be lawful for any creditor of of lands in this commonwealth, to file a bill in circuit court of the county where the land or son may lie, (which bill shall be sworn to,) setting fort demand, and that the same has not been paid, and that ant or defendants are non-residents, and own no personal or not enough to pay and discharge the aforesiad debt or de in this state, within the knowledge of the complainant or comp ants; and upon said court's being satisfied of the justice of th demand, it shall and may decree the same, and order the sale of any lands in this state, belonging to said defendant or defendants, or so much thereof as will satisfy and discharge the said claim or demand aforesaid; and in such cases it shall not be required that process should be served on the defendant or defendants, when they they are all are all non-residents. SEC. 2. Be it further enacted, That no decree shall be entered under the foregoing section of this act, until after publication made in some authorized newspaper in this state, according to the laws now in force, on that subject, and until after the complainant or complainants shall have executed bond, with security, to be approved. by said court, in a penalty to be fixed by said court; which bond shall be taken to the Commonwealth of Kentucky, for the use of any person who may be injured thereby, conditioned to pay any damages, which may be adjudged any person, in consequence of the decree or sale aforesaid. SEC. 3. Be it further enacted, That no hill in any suit commenced under the first section of this act, shall be taken for confessed, for the want of an answer; but the court shall require proofs of the allegations in said bill, according to the rules of evidence in actions at law: Provided, however, That said proof shall be taken by deposition, according to the chancery practice. Process not required to be served upon defendants, when non-residents. Publications to be made in some author ized newspaper Bond to be given by complainants. Condition thereof. No bill to be taken for con fessed for want of an answer. Provisions of ply to cases SEC. 4. Be it further enacted, That the provisions of the third section of an act, passed December 19th, 1796, concerning absent part of the act defendants, and also the proviso to the fourth section of said act, of 1796 to apshall apply to all cases arising under the provisions of this act, as coming under fully and completely as though they were hereby re-enacted: Pro- the provisions vided, That no decree shall be rendered, nor any sale of land made, in any case in which the complainants shall not shew, by proof, that he, she or they are entitled to such decree for at least the sum of fifty dollars. (1) [As to the mode of serving notice on an absent public officer by his securities, and as to the mode of proceeding on behalf of securities in individual contracts against their principal who has removed from the state-See title SECURITIES, post.] (1) Previous to the above act there was no law by which the real estate of absent defendants could be subjected to sale for their debts; of this act. and in proceedings under the act, its provisions must be strictly complied with.-Harris' Heirs, v. Bryant's Exr's. 7 J. J. Mar. 376. San TITLE 3. ACTIONS POPULAR. Actions on penal statutes to be laid in the county where the offence was committed. Place where committed may be traversed, 1589. 31 Elizabeth.--Chap. 5.-Informers.-2 Litt. 532. Be it enacted by the authority of this present parliament, That in declaration or information at any time after twenty days af any ter the end of this session of parliament, to be had, brought, sued or exhibited, the offence against any penal statute shall not be laid to be done in any other country but where the contract, or other matter alleged to be the offence, was in truth done, and that every defendant in such action or information shall and lawfully may traverse and allege that the offence supposed by the same suit to be committed, was not committed in the county where such offence is alleged, which being tried for the defendant, or if the plaintiff be thereupon nonsuit in his information or suit, that then the plaintiff shall be barred in that action or information, any law or use to the contrary notwithstanding: Provided, always, That this act, nor any Not to apply thing herein contained, shall extend to the laying or alleging of to champerty, buying titles, or any offence in any declaration or information for or concerning any champerty, buying of titles or extortion. and if found for defendant, be a bar. extortion. Plaintiff to a that it was had by covin. 1798. IN FORCE FROM THE FIRST MARCH 1798. AN ACT providing that actions popular, prosecuted by collusion, shall be no bar to those which be prosecuted with good faith: Approved January 30, 1798. 2 Litt. 41. SEC. 1. Be it enacted by the General Assembly, That if any plea of recovery person herereafter sue with good faith, any action popular, and in former ac- any defendant in the same action, plead any manner of recovery tion, may reply by action popular, in bar of the said action; or that he, before that time, barred any plaintiff in any action popular, then the plaintiff in the action taken with good faith, may aver that the said recovery in the said action popular, was had by covin; or else may aver that the said plaintiff was barred in the said action popular, by covin. Then if after the said collusion or covin, so averred, be lawfully |