TITLE 30. BILLS TO PERPETUATE TESTIMONY. Bill to perpetuate testi mony may be filed, and pro ceedings there on. filed when com his claim de 1796. IN FORCE FROM FIRST OF JANUARY, 1797. AN ACT to reduce into one the several acts directing the rules and proceedings in the Courts of Chancery: Approved December 19, 1796.-1 Litt. 524. SEC. 26. Bills to perpetuate testimony, may be brought against any number of persons (though they claim under different rights) subject to the rules above mentioned as to costs; and the complainant, on the coming in of the answer, may have a commission, and proceed to take the depositions of his witnesses, on giving the defendant reasonable notice of the time and place of doing the same. SEC. 27. Any person having a claim to land within this state, Bill may be may file a bill to perpetuate his testimony concerning such claim; and on his making affidavit that he verily believes his claim depends plainant makes affidavit that on the testimony of living witnesses, and that he does not know who pends on living sets up any claim to the said land, or any part thereof; or that he witnesses, and does not know of any other person or persons who have such claim, all or part of the adversary except those who are made defendants to the said suit, may as to claimants are those he does not know, have an order to advertise the time and unknown. place of taking the depositions of such witnesses, which being inserted in the Kentucky Gazette or Kentucky Herald, six times, he be had thereon. may proceed to take depositions of such witnesses; which deposiWhen depo- tions so taken may thereafter be used against any person setting up sitions may be taken. a claim to any part of the said land, provided that there be at least four months between the first advertisement and taking such deposition: Provided also, that the present name of the county in which the land lies, and the present names of the water courses whereon it is situated, and an exact copy of the certificate or entry, or both, (as the case may be) under which the same is claimed, be inserted in the advertisement: and provided also, that there be returned with the depositions the Gazettes in which such advertisement were inserted, or a copy of such advertisement with an affidavit from the printer that it had been published as is above directed. What pro ceedings may What notice required for taking depositions and what evi dence neces sary of publication of such notice. SEC. 28. In all cases of bills to perpetuate testimony, if the defendants or any of them do not appear within three months after If defendants do not appear the subpoena has been returned executed, and the bill filed, and put in their answer, it shall be lawful for the complainant at any time and answer afterwards, on giving their attorney at law reasonable notice of the within three time and place of taking the depositions; and where they have no such attorney, on his filing such notice in the clerk's office, twenty days before the taking such depositions, in the same manner that he might have done if the defendants had put in their answers, and had given them personal notice of the time and place of taking such depositions. (a) 1834. months after bill filed and subpoena executed, notice to their attorney will be suffici ent. IN FORCE FROM ITS PASSAGE. Cases in which be taken to perpetuate testimony before the cause of ac pened. tion has hap The party to make an affida AN ACT to authorize the taking of depositions in a summary way to perpetuate testimony: Approved February 11, 1834.-Session Acts, p. 462. Be it enacted by the General Assembly of the Commonwealth of depositions may Kentucky, That in all cases where a party is liable to be sued in his own right, or in right of another, and in cases where a party may have a cause of action, in his own right, or in the right of any other person, but by the existing laws suit cannot be commenced, or by the nature of the contract the cause of action upon the same has not accrued, it shall and may be lawful for such party, his agent or attorney, to file an affidavit with the clerk of the circuit court of the county in which he resides, stating the nature of the cause of action, and the name or names of the parties connected therewith, and the facts he believes he can prove by the witness or witnesses whose testimony ho wishes to perpetuate, and the name of the witness or witnesses: and thereupon the clerk shall issue a dedimus, directed to any justice of the peace of the county where the witnesses may reside, to take and certify the depositions of such wit- ed to the clerk's nesses; and it shall be the duty of the said justice to return, sealed, (a) Bills to perpetuate testimony, answer the purpose for which they are allowed, when the depositions are taken; and if accompanied with a prayer for relief, and are set for hearing, they should be dismissed with costs.-Turpin v. Banton, Har. 312. 2. To sustain a bill to perpetuate testimony, the complainant must have an interest in the thing or subject in relation to which the testimony is to be taken. If he has no interest, his bill should be dismissed. The defendant to such a bill, should be one who claims an interest in the thing or subject matter about which it is desired to perpetuate testimony. It will be a good defence, therefore, to such a bill to show that the complainant has no such interest in the subject about which the testimony is sought to be perpe VOL. I. vit, &c. The clerk to issue a dedimus to take depositions. To be return office and filed away. tuated, as will render the perpetuation of the testimony beneficial to him; or that the defendant has no interest which would justify the complainant to proceed against him: and for these purposes, the defendant may resort to a crossbill. But the cross-bill cannot depart from this specific object and compel the complainant to litigate titles in chancery which are properly the subject of the common law tribunal.—May, &c. v. Armstrong, &c. 3 J. J. Mar. 260. 3. If the testimony when taken, be irrelevant, or if it proceeds from interested witnesses, or from any other cause is such as should be rejected on exception, the complainant should be compelled to pay the costs of the proceeding, and it would likewise be regarded as an appropriate defence.-Ibid. 34 to the clerk's office, with the dedimus, the depositions so taken by him: and it shall be the duty of the clerk to file and safely keep said depositions, as part of the papers of his office; which depositions, so taken and certified, shall be legal evidence between the parties named, their representatives, or assignees, in any future Notice to be controversy which may arise upon the subject matters embraced in given of time and place of said affidavit and depositions, before any court or other tribunal taking deposi- having jurisdiction of the same: Provided, that reasonable notice, tions. Proviso. in writing, of the time and place of taking said depositions, shall have been given to the person to be affected by the same: And provided also, that the deponents shall have departed this life, or removed beyond the jurisdiction of this commonwealth, or be unable from sickness, old age, or infirmity, to attend the time and place of trial. TITLE 31. BOATS AND BOATMEN. contract in cargo of a boat part of the con 1794. IN FORCE FROM IT PASSAGE. - 1 Litt. 262, AN ACT concerning Boatmen : Approved December 20th, 1794 Persons en- owner or supercargo of a boat or vessel lying within any port or tering into any place within this state, and destined to any port or place either writing to serve within or without this commonwealth, shall enter into any bargain owner or super- or contract in writing with any person to serve such owner or suand receiving percargo, on board any such boat or vessel, and shall receive any con- part of the consideration, to be expressed in such writing for such sideration, and failing to com- service, and shall afterwards fail or refuse to perform such bargain ply therewith, or contract; it shall be lawful for such owner or supercargo to apply how to be proceeded against. to any justice of the peace, and upon shewing to such justice such bargain and contract as aforesaid, it shall be lawful for such justice and he is required to issue his warrant specially describing therein the person named in such bargain or contract and intended to be apprehended by such warrant, commanding the sheriff or any constable to apprehend such person and deliver him to such owner or supercargo, on board any such boat or vessel; and the sheriff or constable into whose hands such warrant may come, shall immediately proceed to execute the same, under the directions of such owner or supercargo, and for so doing such sheriff or constable shall receive the sum of four-pence for every mile he shall travel in the execution of his office, to be paid by the person employing him. whether owner or supercargo, to be deducted from such person's wages; and should any sheriff or constable refuse or fail to execute such warrant without good cause for so doing, he shall forfeit and pay to the person obtaining the same, the sum of five dollars. Fee to sheriff or constable. Penalty on officer for neglect. er or supercar go over persons SEC. 2. And be it further enacted, That such owner or supercar- Power of owngo shall have power and authority to detain any person so delivered him as aforesaid on board such boat or vessel, and to compel him to so contracting. perform his contract or service. 1798. IN FORCE FROM FIRST OF MARCH. AN ACT for preventing trespasses and declaring what shall be deemed a lawful enclosure: Approved January 16, 1798.-2 Litt. 28. SEC. 4. Every person who, without leave of the owner, shall take away any boat or other vessel, shall, for every such offence, pay seven dollars to the owner thereof, over and above the damage such boat or vessel shall sustain, and over and above the charge in bringing back such boat or other vessel, to be recovered with costs, in like manner as sums of that amount are recoverable by law; and if the person so trespassing shall be a servant, he or she shall make the like satisfaction, by his or her service, when the time due to his or her master or owner shall be expired; and where there shall be sev. eral offenders in one trespass, every person shall be liable for the whole penalty. 1824. Penalty for taking boats or other vessels. How recovered When several are guilty, each liable for whole penalty. IN FORCE FROM ITS PASSAGE. AN ACT to prevent the masters of vessels, and others from employing or removing persons of colour from this State: Approved January 7th, 1824.-Session Acts, p. 406. Be it enacted by the General Assembly of the Commonwealth of Kentucky, That any master or commander of a steam-boat or other vessel, who shall hereafter hire, or employ, or take as passenger, or otherwise, out of the limits of this state, (a) or shall suffer to be hired or employed, or taken as passenger on board of such steam-boat or other vessel under his command or in his charge, or otherwise take out of the limits of this state any person or persons of colour; unless such coloured person or persons shall have in their possession, Penalty on masters or comof steam boats for removing a co manders lored person from this state without permission of the mas ter of such person, or evidence of his freedom. (a) The above act does not apply to cases where the colored person is received on board from the shore of another state or territory.-Edwards v. Vail, 3 J. J. Mar. 596. May be proceeded against by indictment, or by action. The boat made liable to the party injured, and may be subjected in chancery to satisfy the damages. the record of some court of the United States, properly exemplified, proving his or their right to freedom; or unless such master shall have the permission of the master of such person or persons of colour for such removal, every such master or commander of a steamboat or other vessel, shall be liable to indictment, fine and imprisonment, at the discretion of a jury, and shall, moreover, be liable in damages to the party aggrieved by such removal: and the steamboat or other vessel in which such coloured person or persons shall be hired or employed, or taken as passenger, or otherwise removed out of the limits of this commonwealth, shall be liable to the party aggrieved by such removal, and may be proceeded against by suit in chancery, and condemned and sold to pay and satisfy such damage and the costs of suit. 1828. Provisions of the act of 1824 extended to owners, mates, clerks, pilots & engineers of steam boats. IN FORCE FROM ITS PASSAGE. AN ACT to amend an act, entitled, "An Act to prevent the masters of vessels and others, from employing or removing persons of colour from this State:" Approved February 12th, 1828.-Session Acts, p. 178. SEC. 1. Be it enacted by the General Assembly of the Commonwealth of Kentucky, That the provisions of the act to which this is an amendment, shall apply to the owners, mate, clerk, pilot and engineer of any steam vessel, as well as to the master, and they shall all be liable to indictment, or to the action of the party aggrieved, either jointly with the master, or severally, and either at law or in chancery. SEC. 2. Be it further enacted, That the liabilities under said act Liabilities shall accrue whenever the person of colour shall be taken on board when to accrue. any steam vessel from the shores of the Ohio river, opposite to this State, to the same extent as if they were taken on board from the shores or rivers within this State; and the like liability shall occur for landing or suffering them to go on shore within, as without the State: Provided, Nothing in this act, or the act to which this is an amendment, shall be so construed, as to apply to any person of colour who is not a slave. Proviso. 1829. Duty of a per IN FORCE FROM ITS PASSAGE. AN ACT regulating the price of taking up Boats on the Ohio River: Approved SEC. 1. Be it enacted by the General Assembly of the Commonson taking up a wealth of Kentucky, That it shall be lawful for any person finding boat or craft, any boat, or water craft, gone or going adrift on the Ohio River, to Ohio river. take up and secure such boat or craft, and if no person shall claim adrift on the |