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because, as they claim, the improvement is not by original construction. If their contention be correct, that it is not an improvement by original construction, they are not liable for the cost of it under the charter of the city of Louisville. The construction of the road before the territory through which it runs was annexed did not make it. in the meaning of the charter, an improvement by original construction. It seems to the court that the repairs which the city made on it can not be regarded as a construction of the road in any sense, much less be regarded as an improvement by original construction. Until the street was improved as provided by the resolution of the general council, and for which the property owners are charged, there was no original construction of the street. (McHenry v. Selvage, &c., 99 Ky., 232. )

East of Park Place is Third street, running parallel therewith. On the west is Fourth street, which parallels it only in part. In making the apportionment the general council treated Fourth street as paralleling Park Place the entire distance In making the apportionment the territory to be taxed on the east side of Park Place was defined by a midway line between Park Place and Third street. The territory on the west side was defined by a midway line between Park Palce and Fourth street and Fourth street extended. It results from this that the territory to be taxed on the east side of Park Place is wider than that on the west side of it. The general council deemed it proper to treat the territory in making the apportionment as if it was defined into squares by principal streets. If Fourth street had been actually extended, and the territory defined by principal streets, the law would have taxed the territory in the manner attempted to be done by the general council. It was the duty of the general council to define the territory to be taxed, and we are of the opinion that it did so in an equitable and just way. We think this apportionment is sustained by Dumesnil, &e

v. Shanks, &c., 97 Ky., 354, and Cooper v. Nevin, 90 Ky., 88.

It appears that about one hundred and forty feet of the distance to be improved near the Confederate monument had been improved by original construction. The city authorities recognized that the property owners along the improvement should not, under the charter, be required to pay for the improvement of that part of the street. The city paid for the construction of that part of it, hence the property owners were not made to pay that cost. We do not think that this was prejudicial to the property owners.

The judgment is affirmed.

INDEX TO VOLUME 25--PARTI.

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ACTION TO QUIET TITLEPage. appellant having admitted that appellee had acquired title by adverse possession to one-half the land in controversy, and the proof as to the balance being conflicting, the judgment quieting the title is affirmed.

ACTIONS

a creditor may maintain an action against one to whom his debtor has fraudulently conveyed his interest as heir at law in his father's estate for the purpose of subjecting it to his debt ...... ADMIRALTY—

1. mortgages and conveyances of coal barges must be recorded in the office of the collector of customs where such vessels are registered to affect others than the parties thereto...

2. the recording of a mortgage and bill of sale on vessels subject to maritime jurisdiction in the office of the proper collector does not affect antecedent creditors of the owner.......

ADVERSE POSSESSION

.......

1. the possession of the husband of lands of the wife is not adverse as to her during her lifetime, nor as to her children after her death in the absence of a notorious renunciation of the right under which he held.

745

770

$95

895

836

2. action for trespass-defendant having had actual, adverse possession for more than fifteen years there was no merit in the plaintiff's claim..

957

AGENTS-See Corporations, 5; Mortgages, 3
ALIMONY-

1. conveyance of property by husband set aside as a fraud on wife's right to alimony

2. insufficient petition by wife to claim alimony. APPEALS-See Commissioners, 3; Evidence, 3; Jurisdiction

300

303

1. affidavit of appellee can not be considered on petition for rehearing. 170 2. appeal lies to circuit court from order of county court refusing to grant license to sell liquor. 204 3. trial on appeal properly had on bill of exceptions and not de novo. 204 4. remonstrance on first application properly considered on second application.

204

5. Court of Appeals can not inquire into refusal of lower court to grant a new trial

281

6. after bill of exceptions stricken from record, adjudged that pleadings sufficient to support the judgment

312

7. Court of Appeals has no jurisdiction of appeal from judgment imposing fine of only $50 for obstructing public road

314

8. record of former appeal improperly filed with record of pending appeal should be stricken out by motion..

427

9. unless motion made objection considered as waived 10. an appeal to a circuit court from an order of the county court granting a distiller's license to sell liquor must be taken on a bill of exceptions...

427

455

11. alleged errors in allowing pleadings and in giving instructions will not be noticed on appeal when there was no objection to the proceedings in the trial court

449

12. this court will not consider errors in a trial first objected to on motion for a new trial

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13. this court has no power to consider or reverse a case after the expiration of two years, within which time an appeal might have been taken

473

APPEALS-Continued.

Page.
14. appeal to circuit court from order of county court probating will-
judgment of circuit court rejecting will not void because some of
the infant beneficiaries were not before the court on appeal
15. this court has no jurisdiction of an appeal from the judgment in
a contest over the election of a school trustee where the transcript
was filed more than thirty days after the rendition of the judg

ment

16. the failure of the transcript to include the appeal bond prevents
this court from taking jurisdiction of an appeal from the judg-
ment in a contested election case

17. where the appellant complained of only one instruction in his mo-
tion and grounds for new trial he will be deemed by this court to
have waived his exceptions taken during the trial to the other
instructions.

18. the failure of the trial court to give an instruction can not avail
as a ground for reversal where the appellant failed to ask the
court to give it.

515

536

536

559

559

19. jurisdiction on appeal-the Court of Appeals has jurisdiction of
an appeal from a judgment involving à mechanic's lien asserted
against real property regardless of the amount in controversy 615
20. the Court of Appeals has no jurisdiction of an appeal involving
only $50
21. final order-a judgment entered upon a verdict of a jury returned
pursuant to a peremptory instruction adjudging the costs as
between the parties was a final order from which an appeal
could be taken

22. practice in criminal cases--an alleged improper remark of the
Commonwealth's attorney in the witness room, not excepted to
at the time, is not a ground for reversal on appeal
23. incomplete transcript-the judgment below will be affirmed where
the transcript is so incomplete that the court can not arrive at
the equities between the parties...

653

678

713

716

24. the action of the trial court in granting a new trial will not be
disturbed on appeal unless it appears that there was an abuse of
the liberal discretion allowed in such matters.

755

25. bill of exceptions - the stenographer's transcript of the testimony
can not be used as the bill of exceptions unless filed by order of
court as such

804

26. alleged error of the trial court not made a ground for new trial
can not be considered on appeal

849

27. jurisdiction-the amount in controversy in certain case exceeded

$200..

28. ruling of trial court on motion for new trial not subject to excep-
tion or to consideration on appeal

889

9-1

29. the Court of Appeals can not reverse the judgment in a criminal
case because the verdict is against the weight of the evidence 981
30. in the absence of exception and objection at the time alleged mis-
conduct of a witness at the trial is not ground for reversal.
982
31. dismissal of appeal because of clerical misprision of the clerk in
misstating the names of parties-a subsequent appeal by the true
party after correction of the misprision is not thereby barred
32. judgment allowing fee in favor of attorneys who represented cer-
tain creditors of an insolvent corporation-the same can not be
reviewed on appeal at the instance of a creditor who was charged
with no part of its payment

995

1010

33. the transcript in a criminal case must be filed in the clerk's office
of the Court of Appeals within sixty days after the decision is
rendered.
1022

34. the failure to file the transcript in time can not be cured by the
entry of an order by the trial court granting an appeal at a term
subsequent to that at which the decision was rendered

35. an agreement of parties to disregard the requirements of the Code
as to the time for filing a transcript does not confer jurisdiction
on the Court of Appeals in a felony case

36. judgment of trial court overruling a stranger's motion to set aside
a sale of real estate-it appearing that he had no interest in the
lands sold and was not a party to the action his appeal from the
judgment must be dismissed...

1022

1023

...... 1032

APPEALS-Continued.

Page.

37. the judgment of the court in a civil action tried before a jury will not be disturbed upon consideration of the evidence unless the verdict is palpably against the weight of the evidence. APPEALS TO CIRCUIT COURT

1. an appeal from the order of a county judge refusing a license to sell liquor is tried on a bill of exceptions and no testimony outside of the bill is admissible.

.1033

772

2. where the circuit court reverses the order of the county judge refusing to grant a license the mandate should direct that the license be granted and not that a new trial be allowed .... 772 ARBITRATIONarbitration clause in fire insurance policy-waiver-appraisers ....... 468 ARGUMENT

1. not prejudicial in particular case to limit argument to two hours on a side

2. power to regulate and restrict argument properly within discretion of lower court

ASSIGNEEcreditors of assigned estates will not be permitted to criticise the assignee's management as wasteful and injudicious for the purpose of defeating his claim for additional allowance where they permitted his reports made from time to time to be approved without exception or objection

ASSIGNMENT FOR BENEFIT OF CREDITORS

1. a creditor of an estate assigned for the benefit of creditors by consenting to a transfer of its assets to a title company expressly released the assignee and his surety from further liability

298

298

. 1110

2. an assignment for the benefit of creditors passes to the assignee property previously conveyed by the assignor in consideration of a pre-existing debt..

61

571

3. the assignee has the right to recover same where no proceeding
has been instituted attacking the preferential conveyance as an
act of bankruptcy under the national bankruptcy act
4. preferential conveyance-deed not recorded and no change of pos-
session-when limitation begins to run

5. the State court has the right to order a sale of assigned property independently of the bankruptcy courts where the assignment was not impeached in a bankruptcy proceeding... ATTACHMENT-See Process, 3

571

571

822

1. unfinished beer has no market value and is not leviable under execution

84

2. value of unfinished beer not considered in fixing amount of property owned by an attachment defendant..

84

3. value of mortgaged property fixed by chancellor not disturbed 4. in particular case after consideration of liens debtor has no property subject to execution

84

84

5. the creditor has the privilege to collect out of his debtor's estate all of the debt due and not secured that is not covered by the value of the security

6. a creditor will not be compelled to yield any of his collateral to the debtor until the whole of the debt is paid.

84

84

7. ordinary and customary sales of manufactured articles to customers out of the State does not constitute such removal as is a ground for attachment

84

8. levy of general attachment on property exempt from executionliability of officer for damages-it need not be alleged that the attachment has been discharged

9. an attachment will issue against a foreign corporation or a nonresident defendant in an action for the recovery of money for any reason that would justify the issual against a resident defendant, regardless of the basis of the claim

10. where the ground of attachment against a foreign corporation or nonresident defendant is based solely on the nonresidency the action must be on a contract, judgment or award to authorize the attachment

11. a debt due a foreign creditor by a resident debtor may be attached on the ground that the nonresident is about to remove it from the State.....

....

600

931

931

932

ATTORNEY AND CLIENT-

Page.

1. confidential relation-attorneys for assignee for benefit of cred-
itors not required to disclose to him knowledge of preferential
conveyance by assignor obtained from latter when client of said
attorneys

2 fee of $1,000 ample remuneration for certain services

ATTORNEYS-

1. argument of attorney not prejudicial in particular case

572

965.

15

...

283

283

2. commissioner of insurance not authorized to employ attorney to
prosecute a criminal or penal action in the Court of Appeals
3. such duty devolves on the attorney general....
BAIL-

1. the endorsement of the magistrate is sufficient proof of the for-
feiture of a bail bond... ..

2. the failure of the accused to deliver himself into custody on the
order of the court on a day following the date fixed in the bond
was a breach of its covenants, notwithstanding he may have ap-
peared on the date named

3. a police judge has no authority to endorse bail on a warrant
issued by him charging a person with a felony, and a bail bond
taken pursuant to such indorsement is invalid..

4. execution of-power of attorney by sureties to sign same-fact that
name of one of sureties was signed to power of attorney by
another without written authority did not release other sureties
from liability

BAILMENT-

1. a liveryman who hires another a horse to drive must furnish one
reasonably safe for the purpose-duty of driver when he ascer-
tains the unsafe disposition of the horse.

2. the pledgee of a note pledged as collateral security may maintain
an action to recover thereon
BANKRUPTCY-

1. the national bankruptcy act does not supersede the State statute
with reference to the recovery of property conveyed in preference
of creditors where no proceedings in bankruptcy have been insti-
tuted

2. a judgment for slander is not discharged by a discharge in bank-
ruptcy.
3. a State court has the right to proceed to sell property assigned for
the benefit of creditors and to distribute the proceeds independ
ently of the bankruptcy courts where the assignment is not im-
peached in a bankruptcy proceeding.

4. a bill of sale of a steamboat and barges made with the intention
to prefer the vendee to the other creditors of the insolvent debtor,
recorded in the proper office within four months before the insti-
tution of an action to have the debtor declared bankrupt, is void
as to creditors, and the trustee in bankruptcy may recover the
property

BANKS-See Corporations, 2, 3.

1. a bank has the right to set-off its indebtedness against a deposit
of its debtor

2. a bank has a lien on deposits to secure its indebtedness

455

455

544

603

511

598-

571

626-

822

895

3. bank bound to protect a surety on a note by applying amount of
deposit of principal to payment of it...

4. but if this transaction is set aside as a fraudulent preference right
of bank revives against the surety

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5. acts of surety in having deposit made estops him from relying on
statute of limitation as a defense

6. liability of bank for payment of raised checks.....

BANKS AND BANKING-

240

1. joint deposit in bank under agreement that it should he withdrawn
only on joint check of depositors-bank liable for honoring check
of only one depositor.

561

2. the cashier of a bank is not liable to the bank for overdrafts of de-
positors allowed by his permission where he exercised ordinary
discretion and judgment

BAR TO ACTION--

a settlement agreed upon between the husband and wife at the time
of their separation as to their property did not bar an action by
the wife against a third person for the alienation of her hus-
band's affections...

778

736

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