tried for such stabbing, shooting or wounding, and not for murder, although death may afterwards ensue. SEC 7. Be it further enacted, That in case of the offender failing to appear agreeable to any recognizance taken under this act, such process shall issue subject to the same rules and regulations as are to be observed in other criminal cases. [SEC. 8, Requires all recognizances to be taken to, and in the name of the Commonwealth, and will be found under the title BAIL, page 199, ante.] In case the offender do not appear, process to issue as in other cases of recognizances. victed under the laws of the United States, may be imprisoned in the pe SEC. 9. Be it further enacted, That whenever judgment may be Criminals conpronounced against any offender in this Commonwealth, under the laws of the United States, subjecting such offender to imprisonment or confinement in the penitentiary, that the keeper of the penitentiary shall and is hereby directed to receive and receipt for such nitentiary. offender, subject to the same rules and regulations as other convicts under the laws of this Commonwealth. 1814. IN FORCE FROM ITS PASSAGE. AN ACT to amend the penal laws of this Commonwealth: Approved Feb. 1, 1814. 5 Litt. 136. SEC. 4. Be it further enacted, That in empanneling grand juries in the several courts in this Commonwealth, the court shall appoint a foreman, who shall take the oath now prescribed by law for grand jurors to take, with the alteration "you as foreman. of this grand jury;" and all presentments and indictments shall be returned by the grand jury by their foreman; if a presentment, signed by him, and if an indictment, endorsed on the same "a true bill," and signed also by the foreman. 1816. IN FORCE FROM ITS PASSAGE. AN ACT to amend the penal laws of this Commonwealth: Approved Feb. 10, 1816. 5 Litt. 375. SEC. 1. Be it enacted by the General Assembly of the Commonwealth of Kentucky, That hereafter, upon the conviction of any person in any court within this Commonwealth, for an offence which needs not, under the existing laws, a regular indictment, but may be prosecuted by presentment of a grand jury, or by motion, and where the intervention of a petit jury shall not be necessary, no .attorney's fee shall be taxed up by the clerk, or received by the attorney for the Commonwealth, against the offender; nor shall the prosecuting attorney in the name of the Commonwealth, or other Attorney's fee not to be taxed in certain cases secuted. Nor writ of wise, take a writ of error from the decision or judgment of the error to be pro- court in favor of the prosecutor, in any of the above described cases; nor shall the court of appeals take jurisdiction thereof in the name, and at the instance of the Commonwealth. SEC. 2. And be it further enacted, That so much of any law Law requiring as requires the name of a prosecutor to be set at the foot of an in cutor to be set sentment or in name of prose- dictment or information, for a trespass or misdemeanor, shall be, and at foot of pre- the same is hereby repealed, except in cases that relate to a trespass dictment for a upon the person or property of individuals; (h) and in such cases, trespass, &c.re- the prosecutor shall have his or her name annexed to the indictment pealed. or presentment, and shall be liable for costs on the failure of the prosecution as heretofore. Exception. 1,825. Where jury has rendered a er time than the IN FORCE FROM ITS PASSAGE. AN ACT to amend and explain the penal laws: Approved January 12, 1825. Session Acts, p. 191. SEC. 4. That in all cases of criminal trial, where the jury shall verdict for long- convict the prisoner, but by mistake sentence him or her to a greater period of confinement than is provided by law, it shall be the duty of the court to pronounce judgment against such prisoner for the longest time fixed and prescribed for the offence by law. law allows, the court may projudg nounce ment for longest fixed by law. Further pre amble. And whereas it sometimes so happeneth, that owing to the great length of criminal trials, the same, although begun, are not concluded during the period prescribed by law for the session of the courts, or the jury are unable to agree in a verdict, or find their verdict against the prisoner, but the same is arrested or set aside for informality; and it hath been holden by some judges, that in all such cases the prisoner, however guilty, is thereby discharged and exonerated from all further prosecution: For remedy whereof, SEC. 5. Be it enacted, That where the jury shall,, from any of When a jury the before mentioned causes, or any other casualty whatever, be is prevented from rendering prevented from rendering a verdict, or whenever the jury shall render a verdict of conviction, and the same shall be set aside for any a verdict from any cause, or (h) A motion to strike off the name of, or release a prosecutor to an indictment, should be very cautiously received.-Bartlett v. Humphreys, Har. 513. 2. A person suminoned by the grand jury to give evidence, is not a prosecutor within the meaning of the statute requiring a prosecutor.-Commonwealth v. Hutcheson, 1 Bibb, 355. 3. A motion to dismiss an indictment for want of a prosecutor, may be made at any time before the jury retire from the bar.-Ibid. foot of an indictment for a trespass or misdemeanor, before it is presented to the grand jury.— Allen v. Commonwealth, 2 Bibb, 210. 5. A person on whose evidence a presentment is made, may be introduced as a witness to support it, and on failure of the prosecution, is not liable for the costs.-Commonwealth v. Oliver, 3 Bibb, 474. 6. The court of appeals has appellate jurisdiction over prosecutions for assaults and batteries, as the punishment in such cases is fine only. 4. The prosecutor's name must be set at the Commonwealth v. Simmons, 6 J.J.Mar. 614. cause whatever, at the instance of the prisoner, such failure to ren- the verdict is der a verdict, or arresting or setting aside a verdict of conviction, shall operate no set aside, it for informality in said verdict or the proceedings in the prosecution, discharge of the prisoner. shall operate no discharge of the prisoner; but that the court may, in all such cases, award a new venire facias, until a verdict shall be rendered, or direct new proceedings to be had, to commence where the first error intervened, or to try the prisoner upon a new indictment, as the case may require. SEC. 6. That the Commonwealth shall have the same right of interrogating a venire-man, when called to the book, relative to his qualifications, as the prisoner now has. 1829. But the court a may award venire facias de novo. The Commonwealth may in terrogate veni remen. IN FORCE FROM ITS PASSAGE. AN ACT to amend the law in relation to Venire-Men: Approved Jan. 29, 1829. Venire facias not to issue until indictment until directed by court. SEC. 1. Be it enacted by the General Assembly of the Commonwealth of Kentucky, "That no venire facias shall hereafter issue in any criminal prosecution, until after the indictment shall have been is found, and found by the grand jury, and not then, unless specially directed by the court in which such indictment shall be depending; but in all cases of criminal prosecution, a venire may be made of the qualified bystanders, as in civil cases, if a competent number can be had. SEC. 2. Be it further enacted, That hereafter no venire-man shall be entitled to receive compensation, as such, unless he shall have been sworn in chief upon the trial. Venire men not unless sworn in to receive pay chief. TITLE 59. DEATH, PRESUMPTION OF. 1798. Persons absent beyond sea or IN FORCE FROM FIRST OF MARCH. AN ACT declaring when the death of persons absenting themselves shall be presumed: Approved January 22, 1798.-2 Litt. 28. Be it enacted by the General Assembly, That any person absenting himself beyond sea, or elsewhere, for seven years successively, elsewhere,when shall be presumed to be dead, in any case wherein his death shall presumed dead. come in question, unless proof be made that he was alive within that time. (a) But an estate recovered in any such case, if in a subsequent action or suit, the person presumed to be dead shall be proved to be living, shall be restored to him who shall have been evicted; and he may moreover demand and recover the rents and profits of the estate, during such time as he shall have been deprived thereof, with lawful interest. (a) To justify the presumption of death, from seven years' absence, that absence must be from the country of the absentee's residence.-Spurr, &c. v. Trimble, &c. 1 Mar, 278, TITLE 60. DEPOSITIONS. 545 1796. IN FORCE FROM THE 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. 526. SEC. 31. In all cases of taking depositions (except where it is [hereby] otherwise particularly directed) the party taking the same shall give to the opposite party reasonable notice («) of the time thereof. (a) Depositions certified to have been taken agreeably to the notice, are presumed to have been taken between the hours specified in the notice.-Maxwell v. Mcllroy, 2 Bibb, 211. 2. If the party is present at the taking of a deposition, his objection to the notice to take it is waived.-Talbot v. Bradford, 2 Bibb, 317; Brooks v. Clay, 2 Bibb, 502. 3. In trespass, a notice to take a deposition served on one of several defendants, will authorize it to be read against that one. That the deposition contained statements going to prove the guilt of the other defendants, is no cause for rejecting it against the one who had notice; for the judge can instruct the jury to disregard it as to the others.-Logan v. Steele, 3 Bibb, 230; Hanly v. Blackford, 1 Dana, 4. 4. A notice to take depositions at two different places on the same day, and so far distant, the one from the other, that the party cannot attend at both, is not good; and the depositions taken at either place cannot be read.-Waters' Heirs v. Harrison et ux. 4 Bibb, 87. 5. A notice which does not give the party an opportunity of attending to it, except by agent, is not reasonable.-Ibid; May's Heirs v. Russel, 1 Mon. 227. 6. A notice to take depositions, nor the depositions, need not recite the contingency on which they are to be used, whether de bene esse or not. Johnson, &c. v. Fowler, 4 Bibb, 523. 7. A notice to take depositions which requires 70 VOL. 1. Party taking give a notice depositions to extraordinary exertions, is not reasonable.Shropshire v. Dickinson, 2 Mar. 20. 8. When a party who has not had sufficient notice of the taking of depositions, is driven, by the court having overruled his exceptions to them, to re-examine the witnesses, and this reexamination is in the cause, still the exception is not waived.-Sneed v. Weister, &c. 2 Mar. 284. 9. Thirty miles per day is not an unreasonable exertion for a party to encounter to attend the taking depositions.-Ibid. 10. Where the party had notice, that if the deposition were not taken on the day mentioned, an adjournment from day to day would be made until it should be taken, the deposition taken on such adjournment may be read.-Findlay, &c. v. Humble, &c. 2 Mar. 571. 11. Oral evidence is admissible to prove that a deposition was taken according to notice. Waters v. Brown, 3 Mar. 558. 12. Notice that a deposition will be taken at a particular tavern in a city named in the notice, is good without mentioning the christian name of the tavern keeper, unless it is shown that there were in the same city two tavern keepers of the same surname.-Overstreet v. Philips, 1Litt. 122. 13. In an action against a mercantile firm, notice to one of the partners here, when the other resides out of the state, is sufficient, although the partnership was dissolved before the time of trial.-Gilly v. Singleton, 3 Litt. 250. 14. Notice to take a deposition in twelve days |