by garnishment, a debt due to a non-resident defendant by a non- resident corporation doing business in this State. Pittsburg, C., C. & St. L. Ry. Co. v. Bartels ...216 2. Jurisdiction Franklin Circuit Court.-As the Franklin Circuit Court, at the time of the adoption of the present Constitution, had jurisdiction, co-extensive with the State, of actions against clerks of courts, to recover payments illegally made to them out of the State treasury, that jurisdiction continues by virtue of Constitution, section 126, which provides that the jurisdiction of each Circuit Court "Shall be and remain as now established, hereby giving to the General Assembly the power to change it," notwithstanding Constitution, section 59, sub-section 1, which prohibits the passage of local or special acts, to regulate the ju- risdiction, or the practice, or the circuits of courts of justice. Commonwealth v. J. A. Lyddane.....
JUDICIAL SALES. (See Taxation, 9; Fraudulent Contracts, 6.)— 1. Identification of Property by Judgment.-When a judgment for the sale of real property, taken in connection with the petition, identifies the property with such certainty that the purchaser will know what he has bought, and that the judgment can be executed without difficulty, it is sufficient. Neff v. Covington Stone & Sand Co......
...458 2. Held in Extended Opinion in Same Case.-A judgment should be certain as to the description of real property ordered to be sold, as well as to the time, place and terms of sale; and it is not suf- ficient that the property may be identified by a reference to the pleadings, or that the time and terms of sale are fixed by a rule of court referred to in the judgment. Idem..........458 3. The judgment should be so explicit that the commissioner should not be required to look to any other paper for direction. Idem ..458
JUDICIAL NOTICE-
See Taxation, 4.
See Municipal Corporations, 10, 11.
See Criminal Law, 4; Contracts, 1; Negligence, 17, 18, 19.
Legislative Journals-Limitation.
LEGISLATIVE JOURNALS-
See Elections, 1, 3, 4.
LIENS. (See Common Carrier, 4, 5; Sureties, 6; Taxation, 9; Di- vorce, &c., 1, 4, 5; Judgments, 3, 4; Municipal Corporations, 14, 15.)-
1. Grazing Cattle-Constitutionality of Statute.-Sections 2500 and 2501, Kentucky Statutes, which gives persons a lien on cattle, for their reasonable charges for grazing them, and authorizing a warrant to be sued out and levied on such cattle for such charges, are not unconstitutional. Griffith v. Gross.......160 2. Notice is not required to be given before sale of the property where one has actual notice, that his property has been seized under such warrant. Idem.
3. Vendor and Purchaser-Waiver.-Where the vendor surrendered the purchaser's note for the price, and accepted in lieu thereof, the joint note of the purchaser and W., embracing therein also the price of land sold to W., he waived his lien, as against a sub- sequent purchaser, who took an assignment of the title bond, which failed to show that any part of the purchase money re- mained unpaid. Brown v. Blankenship..... ..464 LIMITATION. (See Sureties, 3, 4; Peremptory Instruction, 1; Negli- gence, 19; Husband and Wife, 3; Taxation, 13, 19; Deed, 2; Railroads, 1, 2, 3.)—
1. Recovery for Deficiency in Sale of Land.-A purchaser's right to relief on account of a deficit in the boundary, being based on an implied promise to refund the money paid by mistake, his cause of action for the recovery of the over-payment does not accrue until the last of the purchase price is paid, and limitation runs only from that time, and not from the time the deed was made. Nave v. Price .... ....105 2. Delay in Discovering Mistake.-Under Kentucky Statutes, sec. tion 2515, providing that an action for relief for fraud or mis- take shall be commenced within five years next after the cause of action accrued, and section 2519, providing that "the cause of action shall not be deemed to have accrued until the dis- covery of the fraud or mistake, but no such action shall be brought ten years after the time of making the contract or the perpetration of the fraud," an action by a purchaser to recover for a deficit in the boundary conveyed, brought almost ten years after the last of the purchase price was paid, is barred by limi- tation, though the mistake was discovered within a year be- fore the action was brought, as plaintiff might, by the exercise
of ordinary diligence in having a survey made, have discovered the mistake sooner. Idem.... ...106 3. Pleading.-The defendant in pleading limitation to an action for relief on the ground of mistake, need not aver that the plaintiff might, by the exercise of ordinary diligence, have sooner dis- covered the mistake, when the facts alleged by the plaintiff in his petition affirmatively show that fact. Idem............106 4. Fraud-Discovery-Diligence. It is not sufficient for plaintiff to show that the action was brought within five years after the discovery of the fraud. He must establish a state of facts show- ing that he could not, with ordinary diligence, have discovered the fraud until within five years before the action was institu- ted. Exchange Bank of Kentucky v. Trimble.
1. Right of Appeal-Amount in Controversy Under $200.-It has al- ways been held by this court, that an appeal will lie from the judgment of the Circuit Court, awarding a mandamus, regard- less of the amount in controversy. (See Barbour's Digest, divis- ion 111, "Mandamus." County of Warren v. Daniel, 2 Bibb, 573; also Justices of Spencer County v. Harcourt, 4 B. Mon., 499.) Stone, Auditor v. Craft..... 20 2. Same.
The language of the statute regulating appeals to this court, after enumerating judgments for the recovery of personal property or many of the value or amount of $200, and the like is as follows: "In all other civil cases the court of appeals shall have appellate jurisdiction over the final orders and judgments of all courts." An order or judgment awarding a mandamus is certainly a final order in such other cases contemplated by the statute. Idem 20
MASTER AND SERVANT—
See Negligence, 8, 9..
MISJOINDER OF ACTIONS-
See Pleading, 2, 3.
MISJOINDER OF PARTIES-
See Common Carrier, 1.
See Limitations, 1, 2, 3, 4; Taxation, 2.
Mechanic's Lien-Municipal Corporations.
1. Constitutionality of Statutes.-Section 2463, Kentucky Statutes, giving a lien to a person who performs labor or furnishes mate- rial in the erection of a building by contract with "the owner, contractor, sub-contractor, architect or authorized agent," is not unconstitutional, though it provides a lien for persons with whom the owner is supposed to have no contractural relations. Hightower v. Bailey, &c... .198 2. Material Men.-A lien is not given for the price of material fur- nished by one material man to another, but only for material furnished by contract with "the owner, contractor, architect, sub-contractor or authorized agent." Idem....
MORTGAGES, POWER TO EXECUTE
MUNICIPAL CORPORATIONS. (See Office, &c., 1-2.)—
1. Excessive Levy for School Purposes.-The fact that the fiscal agents of the city of Paducah may have levied and collected more money than was shown to be due for school purposes by the report made to them by the appellant, does not affect the rights of appellant or authorize the payment of such excess to appel- lant by appellee. Board of Education of City of Paducah v. City of Paducah
......209 2. Same. When the board of education has received the money esti mated by it to be necessary for school purposes for any given year, the obligation of the city to it for that year has been discharged. Idem. ... ....209
3. May Contract by Other Name.-A corporation may contract by a name other than its corporate name, provided it is apparent that it is the contracting party. Neff v. Covington Stone & Sand Co. ...458 4 Streets.-A town of the sixth class is not required to improve a street throughout its entire length, but may limit the improve- ment to the necessities of the town at that time. Idem.....458 5. Constitutionality of Sixth Class Charter.-The charter of towns of the sixth class is not unconstitutional in that it allows the trustees a discretion as to how street improvements are to be paid for. Idem. 458
6. Street Improvement-Town Records.-While a contract for a street improvement must be let to the lowest bidder, it will not be held that this was not done when there is enough in the record to raise the presumption that the trustees did their duty, the same strictness not being required in the records of towns as is required in courts of record. Idem. .458
MUNICIPAL CORPORATIONS-Continued.
7. Void Ordinance.-A city ordinance declaring that it shall be unlawful for any woman to go in and out of a building where a saloon is kept for the sale of liquor, or to frequent loaf or stand around said building within fifty feet thereof and provid- ing for the punishment of any saloon keeper who shall permit a violation of that provision of the ordinance, is void, as being an unreasonable interference with individual liberty.-Gastenau v. Commonwealth ...
8 Validity of Ordinance.-Under sections 3490, 3495 and 3513, Ken- tucky Statutes, an ordinance providing that "whoever shall be guilty of any boisterous or disorderly conduct in the city shall be fined not less than five nor more than twenty dollars, is valid. City of Newport v. Holly .621 9. Penalty Less Than That Fixed by Statute.-Though the ordi- nance prescribes a less penalty for the offense of disorderly conduct than is prescribed by Kentucky Statutes, section 1268, for the offense of breach of the peace, &c., it does not violate the Constitution, section 168, providing that "no municipal ordi- nance shall fix a penalty for a violation thereof at less than that imposed by the statute for the same offense," as the of fenses are not the same. Idem.
.....621 10. Right of Trial by Jury.-Criminal Code of Practice, section 319, providing that accused may have a jury trial in all cases in which a fine of more than $16 may be imposed was repealed as to prosecutions in the police court in a city of the fourth class, by Kentucky Statutes, section 3530, empowering the police judge in cities of that class to hear and determine cases within his jurisdiction, except where the fine may be more than $20. Idem. .621 11. Same. Under the Constitution, section 7, providing that the "ancient mode of trial by jury shall be held sacred and the right thereof remain inviolate," and section 11, providing that the "accused in prosecutions by indictment or information shall have a speedy public trial by an impartial jury of the vicinage," minor offenses may be tried by a police judge without a jury, as such offenses were not, either at the time of the adoption of the Constitution or at common law, required to be tried by a jury. Idem. ......621 12. Construction of Tax Ordinance.—A city ordinance levying tax for the fiscal year beginning May 1, 1893, on all taxable prop- erty in the city as of its value November 1, 1892, as assessed by the city assessor and equalized by the board of equalization, embraces all property in the city liable for ad valorem taxa-
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