159, this court said: "The right to plead the statute of limitations is a personal privilege, but will it be insisted that an agreement never to plead the statute is binding? If so, the grocer and merchant, and all others engaged in the business affairs of life, would have only to agree with those who promised to pay, verbally or in writing, that the statute of limitations should never be relied on, in order to render nugatory these wholesome laws enacted for the peace and welfare of society, and in accord with an enlightened public policy.' And again, same case, speaking of a contract in advance to waive the benefit of all exemption laws, as against the debt contracted, the court said: 'A contract fraught with such consequences to the family of a debtor is totally at variance with public policy, and therefore void.' It now appears to us that the statutes of limitation declare the public policy of the state in reference to actions brought as clearly as the policy of the state is found in its exemption laws in favor of the family of debtors. In the same case the court quotes a decision by Judge Denio, saying that 'the law does not permit its process to be used to accomplish ends which its policy forbids, though the parties may, by a prospective contract, agree to such use.' In Allen v. Froman, 96 Ky. 317, 28 S. W. 497, this court said: 'It has become the legislative policy of this state to fix in every case a limit of time for beginning every action or proceeding for relief.' Mr. Bishop, in his work on Contracts (section 439), says that 'the law is to be deemed a part of every contract.' And in section 442 he says it is because of this doctrine that the law constitutes a part of every contract 'that no stipulation of parties can cause their rights to flow otherwise than in the channels of the law.' Again, in section 477, he says: "To enforce a contract in direct subversion or evasion of any regulation which the law has made for the general good would be against sound policy.' Again, in section 473, the same author says: 'A contract involving any one of the other interests which the law cherishes, though to do what is neither indictable nor prohibited by a statute, termed a contract against public policy (or sound policy), is likewise void.'"

The majority opinion says that the great weight of authority in this country seems to favor the validity of such a provision; that is, such a limitation. The opinion of the United States supreme court in Riddlesbarges v. Insurance Co., 7 Wall. 389, 19 L. Ed. 257, is referred to and liberally quoted from. That opinion is not entitled to any weight in this case, for the reason that the United States has no general statute of limitation. It is worthy of note that that opinion proceeds upon the idea that a statute of limitation is in part, at least, allowed to bar a claim because time raises a presumption of payment. The modern doctrine is that it is a statute of repose, and that it is wholly im

material whether the claim is paid or not, and that the statute is a complete bar. It is not the policy of law to encourage litigation or impel the creditor to make haste to prosecute his debtor. Upon the contrary, the law does not encourage a multiplicity of suits. It may be true, as stated in the quotation, that it is to the interest of insurance companies that the extent of losses sustained by them should be speedily ascertained; but it is equally true that the insured should be entitled to the time given by the general law of the state to enforce their demands against insurance companies: It is stated in the quotation supra that a stipulation in a policy to refer all disputes to arbitration is invalid because it is an attempt to oust courts of jurisdiction by excluding the insured from all resort to them for remedy. I am unable to see the difference between ousting the courts of jurisdiction to determine a controversy, and ousting them of jurisdiction to hear and determine a controversy within the period prescribed by the general law of the state. The opinion in Owen v. Insurance Co., 87 Ky. 574, 10 S. W. 119, is referred to in the majority opinion. It will be seen by an examination of that case that this court did not hold the special limitation clause either valid or invalid, but, at most, seemed to concede its validity, but held that the insured in that case was not barred. But, if it be conceded that the opinion did recognize the stipulation as valid, yet that opinion was rendered under the constitution of 1849, under which special statutes of limitation as to particular companies were not prohibited by the constitution. I venture the opinion that no court of last resort in any state having the same provision in its constitution as section 59 in our constitution has ever held any such stipulations as the one under consideration to be valid or binding. So far as I am advised, the tendency of all the courts is against the validity of any such stipulations. The supreme court of Nebraska, in Barnes v. McMurtry, 29 Neb. 184, 45 N. W. 286, had a similar provision under consideration, and in discussing the question said: "The most that can be claimed for these words is that they constitute a contract between the parties for a special limitation differing from, and much less than, the statute. But to support a contract there must be a consideration. If there was no consideration in support of the provision, it would be, like any other contract having no consideration to support it, a nudum pactum. If such a provision was in the contemplation of the parties when the application for insurance was made, or was in the application itself, then, no doubt, the original consideration paid for the insurance, and the policy issued thereon, would bind the insured; but a mere voluntary restriction, not in the application nor in the contemplation of the parties, placed in the policy as a proviso, in print too fine to be

read by a person of middle age without spectacles, cannot be considered a part of the contract. Suppose A. should apply to B. for a loan of money, and B., believing A. to be an honest man, should send him the money with a request that he forward his note for the same; and suppose A. should send a note for the amount borrowed, in proper form, but should write on the margin thereof that B. must bring an action on the note six months after it became due, or be barred; would such a proviso bar the action in less than the period fixed by statute? That it would not will be conceded. The contract in such case was for the loan of a certain amount of money for a specified period at lawful interest, and any provision restricting the right of recovery would be without consideration and void. So in the case of insurance. A party who desires insurance on his property applies to an agent of some company in which he has confidence, and is furnished with a blank application to fill out, and does prepare the same and deliver it to the agent, and pays the premium demanded. The premium he has just paid is for the insurance, and he may reasonably suppose that, having paid the ordinary rates, the company in case of loss will pay the same promptly after proof thereof is duly made. If it fails to do so, he may reasonably expect that the time to bring an action against the company is the same as upon any other written contract, where there has been a breach thereof. A policy is issued, and, he believing the company to be honorable and to have based its policy on the application, the policy is not read, but placed among his valuable papers, and only after a loss occurs is it examined. Every person familiar with the subject well knows that such is the ordinary course in very many cases, at least. If it is sought to interpose conditions or restrictions of this kind, they should be set forth in the application, or be brought to the attention of the insured when the premium is paid; otherwise, unless there is a consideration shown for them, they will not be sustained. If it is said that the business of insurance is peculiar, and that it is necessary to try the cases as soon as possible after a loss occurs, so the proof may be available, the answer is that the insurer well knows that it may be called upon to make good the loss at any time after one occurs, and has the right and authority of any other litigant to take and perpetuate testimony; and there seems to be no good reason for an exception in favor of one company more than another. In the many complex actions brought against railway, telegraph, and other companies, where the defense largely depends upon the testimony of witnesses, it has never been seriously urged that such companies were entitled to a shorter limitation than other persons because of the liability of their witnesses to go away, or for other causes. It is the policy of the law to have but one

law of limitations alike for the poor and the rich, for the wealthy corporation and the insolvent; and, to establish a limitation by contract, there must be a sufficient consideration, otherwise it will not be available. In the very able exposition by Lord Mansfield, in Carter v. Boehm, 3 Burrows, 1905, of statements made by the insured to obtain a policy, and their effect, the general rules governing the rights of the insured and insurer are considered at length; and an examination of the early causes will show that a special limitation within which the action should be brought in case of loss was a part of the original contract. Such a contract was absolutely essential at that time, as the statute of limitations was held to be one of presumption that the debt was paid, and not, as at present, one of repose." In Phenix Ins. Co. of Brooklyn v. Rad Bila Hora Lodge, 41 Neb. 29, 59 N. W. 755, the court again considered a special limitation in an insurance policy, and said: "The limitation clause in the policy was as follows: 'No suit or action against this company shall be sustainable in any court of law or chancery unless commenced within six months next after the loss shall occur, any statute of limitations to the contrary notwithstanding.' A respectable line of authorities is found in support of the validity of similar provisions. There have been at least two cases in this court whose language indicates that such provisions, under certain conditions, are enforceable. Barnes v. McMurtry, 29 Neb. 178, 45 N. W. 285; Insurance Co. v. Fairbank, 32 Neb. 750, 49 N. W. 711. In no case, however, has effect been given to such a provision in this state. Notwithstanding the authorities upon the subject, the writer would hesitate to commit himself to the view that the parties to a contract may bind the courts to a period of limitations other than that prescribed by statute." In Miller v. Insurance Co., 54 Neb. 122, 74 N. W. 416, the supreme court again had under consideration the same provision heretofore discussed. The insurance company pleaded the period of limitation fixed in the policy. The case was tried by the court without a jury, and the court found in favor of the plaintiff as to all the issues of the pleading, except as to the issue that the action was not brought within six months from the time the cause of action accrued, as provided in the policy; and upon that issue the court found in favor of the defendant, dismissing Miller's action. The opinion then says: "The statutes of this state provide in what time all actions may be brought, and a contract which provides that no action shall be brought thereon, or for a breach thereof, unless within a time therein specified, which is different from the time which the statute fixes for bringing an action on such contract or for a breach thereof, is against public policy, and will not be enforced by the courts of this state. Barnes v. McMurtry, 29 Neb. 178, 45 N. W. 285. In Eagle Ins. Co. v. La

fayette Ins. Co., 9 Ind. 443, such a clause was held to be absolutely void. Phenix Ins. Co. of Brooklyn v. Rad Bila Hora Lodge, 41 Neb. 21, 59 N. W. 752, was a suit on an insurance policy which contained a clause similar to the one in question here. Discussing the validity of such a provision in a contract, Irvine, C., while admitting that a respectable line of authorities supports the validity of such a stipulation, said: 'In no case, however, has effect been given to such a provision in this state. Notwithstanding the authorities upon the subject, the writer would hesitate to commit himself to the views that the parties to a contract may bind the courts to a period of limitations other than that prescribed by statute.' The court adopts the views of the commissioner as expressed in that case, and declines to be bound to a period of limitations fixed by any contract, other than the period prescribed by the statute. The judgment is reversed, and the cause remanded, with instructions to the district court to enter a judgment in favor of the plaintiff in error upon the special findings made by the court."

It will be seen from the foregoing that the tendency of modern thought and judicial decisions is against the validity of any such special provisions in contracts. A recognition of such provisions would inevitably tend to greatly increase litigation, and bring up innumerable contests as to the waiver of such stipulations, and as to what would estop a party from relying on such stipulations. Moreover, it seems clear to me that one of the leading features and objects of the present constitution was to have uniformity in the law and to prohibit special legislation, and to prevent undue advantage being taken of the uneducated, unthinking, and unwary. The object of insurance is to obtain indemnity for loss by fire, or payment on life insurance policies; and, as a general rule, the insured party will never look in a policy to see whether or not there is any statute of limitation embodied. I doubt if 2 per cent. of the parties now in the state holding insurance policies have any idea that there is any stipulation in such policy requiring suit to be brought within a certain time. The applications for insurance have no such stipulation, and it would be a harsh rule to require a man to be bound by a stipulation in a policy different from the general law of the state, unless he had agreed knowingly and specifically to such a provision. I am, however, clearly of the opinion that no agreement, however clearly made and assented to by both parties, can have the effect to shorten the general statute of limitation, or bind a court to hold any contract barred within a shorter period than is provided for by the general law of the state. I think my conclusion is fully sustained by the decisions referred to by me in the first part of this opinion. For the reasons indicated, I dissent

from the majority opinion herein, which holds the 12-months provision in the policy in question to have any validity whatever. WHITE and O'REAR, JJ., concur.

ISON et al. v. COMMONWEALTH.1 (Court of Appeals of Kentucky. Feb. 26, 1901.)

MASTER COMMISSIONER -FAILURE ΤΟ REQUIRE RENEWAL OF BOND-RELEASE OF SURETIES-COLLECTION OF BOND PAYABLE TO COMMISSIONER.

1. The failure of the court to require a master commissioner to renew his bond as required by Ky. St. § 392, does not release the sureties in the existing bond.

2. Under Civ. Code Prac. § 697, providing that the purchaser of property sold under an order of court shall give bond for the price payable to the officer making the sale unless the court shall otherwise direct, and Ky. St. § 1676, providing that execution may issue on such bond "if not paid at maturity," the master commissioner is authorized, without an order of court, to collect a bond made payable to him for the price of property sold by him under an order of court, and the sureties in his official bond are liable therefor.

Appeal from circuit court, Letcher county. "To be officially reported."

Action by the commonwealth of Kentucky, for the use of R. G. Ramsey, against Moses Ison and others, on the bond of J. J. Fitzpatrick as master commissioner. Judgment for plaintiff, and defendants appeal. Affirmed.

S. B. Dishman and D. D. Field, for appellants. Tyree & Adams, for appellee.

swer that there was an order of court ordering the commissioner to collect the money, and that he collected it without authority; second, that it was the duty of the court to have required a renewal of his bond annually, and, as it was not done (not having taken one in 1894), the sureties on the first bond were released, as their liability was increased by reason of the failure of the court to so take a bond annually.

We will consider the questions in their reverse order. Section 392, Ky. St., reads as follows: "Each circuit court shall appoint a master commissioner for such court, may remove him and appoint another; but no master commissioner shall continue in office more than four years without a reappointment. Before acting, the master commissioner shall be sworn and execute a bond, with surety, to be approved by the court, for the faithful performance of the duties of his office. The bond shall be entered of record in said court, and shall be renewed once in each year, and oftener if required by the court, and a copy thereof, certified by the clerk, shall be evidence in all proceedings in this state." By the terms of this section a commissioner must be appointed every four years, and his bond shall be renewed once in each year, and oftener if required by the court. The renewal bonds are not for the benefit of the sureties who sign the first bond, but for the benefit of the public. This is substantially the same provision of the statute with reference to a renewal of sheriffs' bonds; and this court held that the subsequent bonds were not to relieve the sureties in the first bonds from liability, but to protect the public. It is held in Ketler v. Thompson, 18 Bush, 287, that the renewal bond did not retroact, but it bound the sureties to make good losses that resulted from future failures of the sheriff to perform such duties as then rested on him in the collection of executions then in his hands; that the sureties in the original and renewal bonds were joint sureties, and were jointly bound to answer for the action of their principal. In the case of Ridgway v. Moody's Adm'r, 91 Ky. 581, 16 S. W. 526, the question arose as to whether the sureties in the sheriff's bond were released by reason of the failure of the court to require the sheriff to give a renewal bond. The court held that the failure to renew did not release the sureties already bound, but, if the renewal bond had been executed, then the sureties in each were jointly liable as co-sureties. The sureties in the first bond could have called the court's attention to the fact that Fitzpatrick had not renewed his bond, and doubtless it would have compelled him to do so, or they could have given notice, and made a motion in court requiring that he give a renewal bond.

The second question arises: Has the master commissioner the right to collect bonds, without an order of court directing him to do

so, which were executed for the purchase money of land sold under judgment of court, payable to him? The question as to the authority of a master commissioner to collect money without an order of the court was involved in the case of Rankin v. White, 3 Bush, 545. In that case the court had directed its commissioner to loan a fund in court, who took the borrower's bond therefor with surety. The surety resisted payment on the ground that the bond was executed to operate as a replevin bond, and that, no execution having been issued on it for more than a year after it became due, he was released by section 11, c. 97, p. 400, Rev. St., which provides that a surety in a bond having the force of a judgment shall be released when there is a failure for one year to have execution issued. The court held that that provision did not apply to judicial bonds, the collection of which by execution, rule, or attachment must be controlled by the court alone as to the time and manner of enforcement. In the case of Turner v. Rankin, 80 Ky. 179, the same question was involved, as the facts were substantially the same; and, while the court in the latter case held the sureties were released, it reaffirmed the doctrine of Rankin v. White in so far as it held the collection of the bond was under the control of the court. In neither of these cases did the court discuss the powers generally of commissioners to receive money on bonds executed in the course of a judicial proceeding payable to them, but assumed that they could only receive money when ordered by the court to do so, in the class of cases then under consideration. As to the purpose of appointing commissioners and their duties, this court, in the case of Honore v. Colmesnil, 1 J. J. Marsh. 511, said: "The permanent master in chancery, known to the English courts, is unknown here. We, under an act of Virginia (1 Dig. L. K. 226), have substituted in his place a commissioner or auditor pro hac vice. The object of the law in providing for the appointment of the commissioner is to save time of the court; and it is his duty, when appointed, to do those things, and those only, which are required of him by the order of court, and, if he transcends the authority given him by the court, his acts are nugatory." While it is a general rule that commissioners of courts only have authority to do such acts as are ordered by the court, the right of the legislature to define the duties of master commissioners cannot be questioned. The office is created by its act, and the one who fills it is authorized to do whatever is sanctioned by the law for his government. Of course, as the court interprets the law the commissioner must follow it, besides perform all lawful acts ordered by the court. So then it follows that, if the statutory law authorizes a master commissioner to collect sale bonds payable to him when taken for the purchase money of property

*

sold under an order of court, then the general rule which formerly circumscribed the duties of commissioners of courts of chancery must yield to legislative enactments. Section 697, Civ. Code Prac., reads as follows: "(1) The purchaser of property sold under an order of court shall give bond for the price, with good surety approved by the officer making the sale, payable to him or to the person entitled to receive the money, as the court may direct; or, if the court make no order on the subject, they shall be made payable to the officer. (3) They shall have the force of judgments; and on executions issued upon them no replevy shall be allowed, and sales shall be for cash." Section 1676, Ky. St., reads as follows: "Every bond taken on the sale of property under an order of judgment in chancery shall have the force and effect of a judgment, and on which, if not paid at maturity, an execution may issue." It will be observed that by the section of Code quoted the commissioner is authorized to take bonds to himself for property which he sells under a judgment of the court, when the judgment does not direct it to be taken to some one else. The section of the statute quoted provides that on bonds taken by a commissioner for property sold under an order or judgment in chancery an execution may issue if not paid at maturity. This section evidently contemplates that the person to whom they are made payable shall have authority to have an execution issued if they are not paid at maturity; otherwise, in the absence of some order giving the fund to some one other than the payee, no one could have the execution issued. It would be an idle thing for the law to provide that an execution may issue on a bond, and then not allow the one to whom it is payable to have it done. It certainly would be an anomalous condition to authorize the payee to have it issued, and still not authorize him to receive the money after it was collected on the execution. It would be a strange construction of the statute which would allow the payee in the bond to collect the money on the bond by execution, and not allow him to receive it without such process. Sale bonds often mature between terms of court, when, to save part of the fund, it may be important that an execution should issue. Besides, by the terms of the contract which the purchaser makes through the court, when his debt is due he is entitled to pay it. The bond which he executes designates the payee. In this class of cases, when the commissioner takes bond payable to himself, as provided in the section of the Code referred to, and in cases when he takes the bond payable to himself by order of the court, he is authorized to collect the money on the sale bond. If he fails to pay it over to the parties entitled thereto, his sureties on his bond can be made to account for it. We do not think this conclusion is in conflict with the doctrine of the

cases of Rankin v. White and Turner v. Rankin. The judgment is affirmed. Whole court sitting.

MEMORANDUM DECISIONS.

ANGEL v. VANWINKLE. (Court of Appeals of Kentucky. Feb. 13, 1901.) Appeal from circuit court, Whitley county. "Not to be officially reported." Interpleader for the purpose of determining whether Arch Angel or Louisa D. Vanwinkle was entitled to money for timber cut from land described in the petition. Judgment for Louisa D. Vanwinkle, and Arch Angel appeals. Affirmed. C. W. Lester and S. V. D. Stout, for appellant. R. D. Hill, for appellee.

O'REAR, J. The parties to this appeal were required by appropriate proceeding to interplead in the Whitley circuit court for the purpose of determining which of them was entitled, as the owner of certain land described in the petition, to money for timber cut therefrom by the plaintiff. Appellant and appellee entered their appearance and pleaded to an issue; each claiming the land, except appellee disclaimed title to so much of the Evan Walden 50-acre patent as was embraced in a deed from Thomas Neal and wife to appellant, dated May 31, 1879. This issue was tried by the court by consent, a jury being waived. Judgment was rendered for Mrs. Vanwinkle, the appellee. The court did not separate his findings of law and fact, nor was such separation asked for, nor was there a motion for a new trial below, nor were grounds therefor filed. The bill of exceptions was on motion in this court. stricken from the record March 10, 1900, because not filed within the time prescribed by law. The pleadings of appellee fully sustain the judgment rendered by the court. The judgment appealed from must be affirmed.

CHAPLAIN & B. TURNPIKE-ROAD CO. v. NELSON COUNTY. (Court of Appeals of Kentucky. Feb. 13, 1901.) Appeal from circuit court, Nelson county. "Not to be officially reported.' Action by the Chaplain & Bloomfield Turnpike-Road Company against Nelson county on a contract. Judgment for defendant, and plaintiff appeals. Reversed. Geo. S. and John A. Fulton, C. T. Atkinson, and T. L. Edelen, for appellant. N. W. Halstead, Morgan Yewell, E. W. Hines, and W. S. Pryor, for appellee.

PAYNTER, C. J. The facts in this case are substantially the same as in the case of Bardstown & L. Turnpike-Road Co. v. Nelson Co., 60 S. W. 862, in which the court this day delivered an opinion, except there was nothing advisory in the acceptance of the fiscal court's proposition. The doctrine of the case supra is equally applicable to the question involved in this case. The judgment is reversed for proceedings consistent with this opinion.

CITY OF COVINGTON v. YATES. (Court of Appeals of Kentucky. Jan. 30, 1901.) Appeal from circuit court, Kenton county. "Not to be officially reported." Action by Emma Yates against the city of Covington to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed. W. McD. Shaw, for appellant. James P. Tarvin and B. F. Graziani, for appellee.

PAYNTER, C. J. The questions presented in this case are substantially the same as were