then upon such consolidation with a corporation of this state an organization tax shall be paid equal to the difference between that required of such foreign corporation in the state of its creation and that which would have been required bad it been formed in this state."

This provision in section 556 was enacted in 1902, and is a legislative construction against the blind and undiscriminating policy, sought to be maintained by appellee, of requiring every foreign corporation which does business in the state to pay an organization tax, without regard to the fact that it has already paid one at home. Under section 556, although that which had been a foreign corporation, by being consolidated and recreated, has been really and in truth organized under the laws of this state, yet so tender was the Legislature on the subject of double taxation that it in express terms declined to require so much of the constituent element of the new corporation as may have paid an organization tax to its native state when it was originally created to pay again to this state. If the construction contended for by appellee had been the policy of the state, the proviso in section 556 would not have been enacted. Section 763 relates to the creation of corporations, and these latter only are required by section 4225 to pay an organization tax.

For the reasons indicated, the judgment is reversed, with directions to dismiss the proceedings against the appellant.

ALLEN v. BRADY.

(Court of Appeals of Kentucky. Dec. 7, 1904.)

SLANDER-WHAT WORDS ARE ACTIONABLE.

1. To say of one's former clerk that he "has robbed me out of all I made. He has robbed me of all the profits, which amounted to several hundred dollars"-charges a fraudulent conversion of the property of another, within Acts 1902, p. 151, c. 66, making such conversion a crime, and is actionable per se.

Appeal from Circuit Court, Fulton County. "Not to be officially reported."

Action for slander by J. H. Allen against J. T. Brady. From a judgment for defendant, plaintiff appeals. Reversed.

Hershall T. Smith, for appellant. Ed Thomas and Robbins, Thomas & Tyler, for appellee.

NUNN, J. The appellant sued the appellee for slander. A demurrer was sustained to his petition. He amended, and a demurrer was again sustained to the petition as amended. We quote the following language from the amended petition: "For amended petition, the plaintiff says he is a meat cutter, butcher, and clerk in a butcher shop, by trade and occupation, is such now, and was such before and during the time the defendant made the false and slanderous statements herein complained of, and

was such when the false and slanderous statements in the original petition were made of and concerning him; and he says that, in pursuit of his trade or business, it becomes and is necessary, and he does, in the prosecution of his business, handle, collect, and make change with money belonging to the person or persons for whom he cuts meat and clerks, and that he has not, nor had he at the time of the slanderous statements complained of, any other trade, occupation, or business. He alleges that he worked for defendant in his capacity and character as meat cutter, butcher, and clerk. He says that the defendant, with the malicious purpose of injuring and intending to injure his good name, credit, and reputation,. and to bring plaintiff into disgrace and disrepute as a clerk, meat cutter, and butcher, among the people of this state and county, spoke and published of and concerning this plaintiff, in his trade, business and occupation, the following false, malicious, and slanderous words: 'Allen has robbed me out of all I made in that butcher shop. He has robbed me of all the profits, which amounted to several hundred dollars, and is now living on what he stole from me while he was working for me as a meat cutter and butcher." "

To maintain an action for slander for injury to the general reputation or character, it is essential that the words spoken should contain an express imputation of some crime for which the party is liable to punishment. To maintain an action for slander for injury to one's trade or business, it is essential that the words spoken must be calculated to affect the party prejudicially in the trade or business in which he is engaged. The language quoted, considered in connection with the fact that appellant was an employé of appellee in a butcher shop, as butcher and clerk, and, by reason of this position and trust, received the money from appellee's customers, and had the custody thereof, clearly charges that appellant, in effect, had fraudulently converted the money of appellee to his use, and was then supporting his family upon it, which, as it existed under the law prior to the taking effect of the act of March 21, 1902 (Acts 1902, p. 151, c. 66), with reference to the fraudulent conversion of the property of another, was not a crime, but only a breach of trust. But the act of March 21, 1902, made this a crime (Com. v. Barney, 74 S. W. 181, 24 Ky. Law Rep. 2352), and, since appellee was charged with this misappropriation after the act took effect, he was charged with a crime; and therefore the language was actionable per se, as affecting his general reputation and character, as well as affecting his honesty and integrity in the trade or business in which he is engaged.

There were other alleged slanderous words quoted in the petition, which we deem it unnecessary to notice in detail, as we appre

hend that the lower court will have no trouble in applying the principles herein enunciated to them. See Fred v. Traylor, 72 S. W. 768, 24 Ky. Law Rep. 1906; Brite v. Gill, 2 T. B. Mon. 65, 15 Am. Dec. 122; Macauley v. Elrod, 27 S. W. 867, 16 Ky. Law Rep. 292; and Cooley on Torts, pp. 196, 202.

For these reasons, the judgment of the lower court is reversed, and the cause remanded for further proceedings consistent herewith.

-NEW CAUSE OF ACTION.

1. Where a widow never joined in any conveyance of certain land owned by her husband in his lifetime, she was entitled to an assignment of dower therein.

2. Plaintiff prayed the allotment of dower in land owned by her husband in his lifetime, the title to which had been acquired by defendant, and that she be awarded the right of egress and ingress to and from the same. Defendant answered, admitting plaintiff's right to a passway over the original tract to the public highway, but alleged that he owned the land that surrounded the land in question, and that plaintiff had no right to a passway over his other lands. Plaintiff's dower was set off by commissioners, but her right of way was not passed on, whereupon she filed an amended pleading averring that she was entitled to a passway leading to a certain turnpike, which passway had existed for more than 50 years, and that defendant denied her right to use the same in connection with her assigned dower lands. Held, that plaintiff, by such amended pleading, was only seeking to establish a right which she alleged already existed, and hence it was not objectionable as setting up a new cause of action.

Appeal from Circuit Court, Madison County.

"Not to be officially reported."

Action by Nannie Harris against W. A. Langford. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Grant E. Lilly, for appellant. J. Tevis Cobb, for appellee.

PAYNTER, J. The appellant, Nannie Harris, is the surviving widow of Robert E. Harris, who had been the owner of a certain parcel of land in Madison county. She never joined in any conveyance of the property; hence was entitled to be assigned her dower interest in it. The appellee acquired the legal title to the property. The appellant prayed to have her dower allotted to her, with the right of egress and ingress to and from the land. The defendant, in his answer, averred that in the division of the land of Sallie Ann Harris 100 acres was allotted and deeded to Robert E. Harris, the appelJant's husband, and that certain other parcels were allotted to others. And he admitted that the plaintiff was entitled to a passway wherever necessity required and equity permitted, over the original tract, to the public highway; but he further averred that he

1. See Dower, vol. 17, Cent. Dig. § 130.

owned the land that surrounded the land partitioned, and that the plaintiff did not have the right to a passway over his other lands. At the January term, 1901, the court adjudged that the appellant was entitled to dower in the land, and directed certain persons, as commissioners, to allot it to her. At the April term, 1901, the commissioners made their report, which was confirmed. Neither in the judgment of the court appointing the commissioners nor in their report was any reference made to the right of egress and ingress to and from the land. The court properly refused a writ ad quod damnum, and thus the matter stood until April, 1903, when a pleading was filed by the plaintiff denominated a "reply amended petition," in which the plaintiff averred that she was entitled to a passway or road leading to the Richmond and Lexington turnpike; that such road or passway had existed for more than 50 years; that the defendant refused to allow her to use it in connection with the land assigned to her as dower. The court sustained a motion to strike this pleading from the record. This action of the court was evidently based upon the idea that the appellant did not properly designate the pleading, or because it was not filed unti after the dower interest had been allotted to her and the report confirmed. The appellant misnamed the pleading which she filed, as there is no such pleading known to the prac tice as a "reply amended petition." It was an amended petition setting up facts, which, if true, showed that she was entitled to a passway from her land over the land of appellee to the Richmond and Lexington turnpike. It may be possible that the court regarded it as setting up a new cause of action, not germane to the one stated in the petition. If this be true, the court was in error. The right to the use of the passway was appurtenant to the land assigned her as dower. If the averments of the petition are true, she has as much right to the use of the passway as she had to the land allotted as dower. The defendant owned all the land subject to the dower interest, and it was entirely proper in this action to have the question determined as to her right to the alleged appurtenance to her dower interest. The court had jurisdiction of the parties and the subject of the action, and it was eminently proper to consider the entire controversy in the same action. The appellant was not seeking to acquire a passway which she did not have the right to use, but to establish the right which she alleged already existed thereto. In the judgment allotting dow er the court did not dispose of the question as to the right of egress and ingress to and from the land; hence it had not been adjudicated when the amended petition was tiled. The case remained upon the docket, and the plaintiff had the right to have it disposed of. The amended petition did not set up a new cause of action, but contained averments

TAYLOR v. WEBBER et al.

(Court of Appeals of Kentucky. Dec. 8, 1904.)

SALE FOR PARTITION-AVOIDANCE BY INFANTS -PETITION CURED BY ANSWER.

1. Any defect in a petition alleging that land was susceptible of division among its owners, in not adding the words "without impairing its value," is cured by the answer, denying that the land was susceptible of division "without impairment of its value."

2. Where land owned in common by infants and adults was sold to the adults for one-fifth of its value, in proceedings by them for a sale on the ground that it was not susceptible of division among its owners without impairment of its value, when in fact this was not true, the infants, who had no statutory guardian, but were represented in such proceedings by a guardian ad litem only, will be entitled to have their portion of the land set aside to them, on doing equity in regard to the part of the purchase money received by them; they having, within a year after attaining their majority, instituted an action, under Civ. Code Prac. § 391, and section 518, subsecs. 4, 5, 8, to vacate the judgment of sale.

Appeal from Circuit Court, Graves County. "Not to be officially reported."

Action by Hillary Taylor against A. A. Webber and others. From an adverse judgment, plaintiff appeals. Reversed.

W. J. Webb, for appellant. Lee & Hester, for appellees.

BARKER, J. Halcomb Jackson, an ancestor of appellant, died intestate, leaving, as part of his estate, 180 acres of land situated in Graves county, Ky. Of this, at the beginning of the transactions out of which grew this litigation, the appellee A. A. Webber was the owner of an undivided fivetenths interest, the appellee Charles Tucker of an undivided two-tenths, Hillary Taylor of an undivided two-tenths, and Frank Justice of an undivided one-tenth interest therein. Hillary Taylor and Frank Justice are grandsons of Halcomb Jackson, and were infants over the age of 14 years at the time of the occurrences hereinafter set out. Neither, so far as this record discloses, had a statutory guardian. On October 23, 1897, the appellees Webber and Tucker instituted an action against them in the Graves circuit court for a sale of the land for division, under section 490 of the Civil Code of Practice; alleging its indivisibility without material impairment of its value. A guardian ad litem was appointed for the infant defendants, and such proceedings were then had that a judgment was rendered adjudging a sale of the land for a division of its proceeds among the owners. The land seems to have been composed of two tracts-one

of 55 acres and the other of 125 acreswhich, although near, were not contiguous. The 125-acre tract was treated in the judgment and order of sale as being composed of three different tracts, to wit, 50 acres, 35 acres, and 40 acres. These four tracts were appraised as follows: the 55-acre tract, at $220; the 50-acre tract, at $350; the 40-acre tract, at $140; aggregating $885. At the sale all of the tracts were purchased by the appellees Webber and Tucker, the latter purchasing the 35-acre tract at the price of $70. The other three tracts were purchased by appellee Webber at the following prices: The 55-acre tract at $80, the 50-acre tract at $110, and the 40-acre tract at $60; the whole realizing the aggregate sum of $330. This was divided between the owners according to their respective interests; Hillary Taylor receiving $45, and Frank Justice $22.50, as their respective shares of their ancestor's estate.

Within a year next after his twenty-first birthday, Hillary Taylor instituted this action in equity under section 391 and subsections 4, 5, and 8 of section 518 of the Civil Code of Practice, alleging substantially the foregoing facts as to the sale of his land: That the same was divisible, that the sale was had for the fraudulent purpose on the part of appellees of obtaining his land for less than its real value, and that his land was so obtained by the appellees at less than its real value. All of the substantial allegations of the petition were denied by separate answers of the defendants (appellees). Subsequently the appellees were allowed by the court to file a demurrer to so much of the petition as alleged that the land in question was divisible, and this was sustained by the court. No reason is given in the record for this ruling, but we conclude that it must have been based upon the failure of the pleader to add to the allegation that the land was susceptible of division among its owners at the time it was sold for indivisibility the words "without impairing its value"; and, if we consider alone the allegation in the petition, undoubtedly this was correct. But it was evidently overlooked that the answers of the defendant specifically denied that the land was susceptible of division without impairment of its value; and this denial cured the defect in the petition, under the elementary rule of pleading that, if an allegation is defective because its terms are too narrow to include the legal principle sought to be stated, its denial, in terms as broad as the allegation should have been, cures the defect.

We proceed then to a discussion of the merits of the case. Although the reason for the sale of the land is based upon the fact of its indivisibility without impairment of its value, it was divided into four different tracts, and appraised, sold, and purchased separately; and, as it was wild, rough, farming land, it needs but little evidence to show

that it was susceptible of division without impairment of its value. The defendants in the action to sell were infants, with no statutory guardian to look after their interests, and the land was sold for about a third of its appraised value; the Jatter, as shown by the evidence, being little, if any, greater than one-half the real value of the property. We think this is demonstrated by the subsequent sale of the 55-acre tract. This was appraised at $220, and purchased by Webber for $80, and then, without any improvements being added thereto, was subsequently sold by him to G. Potts for $400. And the weight of the evidence shows that all of the rest of the land was obtained by the appellees for relatively as much less than its real value as was the 55-acre tract; the net result of the sale being that appellant received $1.25 an acre for his land, which is about one-fifth of its real value. Considering that the defendants in the original suit were infants unable to protect themselves, and without statutory guardians, we think the transactions which took place in the suit for the sale sufficiently substantiate the allegations of the petition to entitle appellant to a new trial, and that his right thereto is fully upheld in the cases of Bunnell v. Bunnell, 64 S. W. 420, 23 Ky. Law Rep. 808; Allen v. Troutman's Heirs, 10 Bush, 62; Newland v. Gentry, 18 B. Mon. 670; and Richards v. Richards' Adm'r, 10 Bush, 619.

Upon the return of the case, appellant's portion of the land should be set apart to him by proper proceedings, and he required to do equity in regard to the money he may have heretofore received out of the sale of which he complains. G. Potts should be allowed to keep the land purchased by him from Webber, the latter being required to account for the purchase money instead of the land. As the remainder of the original estate is in the hands of the appellees, who procured the sale, as full justice can be done to all the parties in interest as if no sale had taken place.

For the reasons indicated, the judgment is reversed for proceedings consistent herewith.

1. Where defendant executed a bond sued on to obtain payment of his salary as clerk of a city board of education pending a contest for his office, with knowledge of all the facts, and that the board was unwilling to pay the salary without the bond, the board was not estopped, on the contest being decided adversely to defendant, to sue on the bond on the ground that it had kept defendant in office, recognizing him as clerk, and that he had performed duties as such.

2. Where, pending an election contest as to the office of clerk of a city board of education,

the board suspended the payment of defendant's salary as clerk for three months, after which defendant executed a bond to save the board harmless, to obtain payment of such salary, the bond was not without consideration.

3. Where, on the institution of a contest of the election of clerk of a city board of education, the board suspended payment of defendant's salary as clerk, and, after three months' salary had accrued, defendant executed a bond to save the board harmless by reason of a payment to him of "any salary now due him as clerk," such quoted clause referred to and included the three-months clerk's salary then due. which the board, having paid to defendant, was entitled to recover in an action on the bond after defendant's defeat in the contest.

Appeal from Circuit Court, Kenton County.

"Not to be officially reported."

Action by the Covington board of education against W. P. McLaughlin and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Byrne & Reed and R. C. Simmons, for appellants. Frank M. Tracey, for appellee.

HOBSON, J. W. P. McLaughlin was clerk of the board of education of the city of Covington in January, 1898. He and Matt E. Heyker were candidates for the office for the ensuing term of two years. At a regular meeting of the board, Heyker received seven votes, and McLaughlin five; but the presiIdent of the board refused to declare Heyker elected, because the board had previously adopted a rule that a two-thirds vote was necessary to an election. An appeal was taken from the decisions of the chair, and the board sustained the ruling of the president. Heyker, however, qualified as clerk, and continued to attend the meetings of the board, offering to act as such; but McLaughlin refused to surrender to him the books and papers. After some two months, Heyker filed suit against McLaughlin and the board to recover the office and the salary for the time since his election. His petition was dismissed, but on appeal to this court it was held that the resolution of the board requiring a two-thirds vote in order to an election was void, and that it was the duty of the president to declare him elected, and that he was entitled to the office and the salary attached thereto. Heyker v. McLaughlin, etc., 50 S. W. 859, 20 Ky. Law Rep. 1983. In May, 1898, after the suit was filed, and before it was tried, when the board was refusing to pay either Heyker or McLaughlin, and some three months' salary was past due, McLaughlin, to induce the board to pay him the salary, executed to it the following bond: "Covington, May 6, 1898. Kenton County, Kentuc ky. Bond. We the undersigned principal and surety do hereby undertake to hold the board of education harmless, and to indemnify the board against any loss which it shall sustain by reason of the payment to W. P. McLaughlin, Clerk of said Board, any salary now due him as clerk. [Signed] W.

P. McLaughlin, John Evans, T. J. Smith, Thomas G. Woods, J. O. Richards." The board accepted the bond, and, upon the faith of it, paid McLaughlin the three-months salary then due, amounting to $300, and continued to pay him the salary of the office until the case was decided in favor of Heyker. It was then compelled to pay Heyker the salary attached to the office from the time of his election, in January, 1898, and filed this suit against McLaughlin and his sureties to recover the $300 of salary that was paid to him upon the faith of the bond. Judgment having been rendered in favor of the plaintiff, the defendants appeal.

It is insisted that the board having kept McLaughlin in the office, recognizing him as clerk, and he having performed the services, no liability attached under the bond, and the board is estopped to say that McLaughlin was not the clerk or that he was not entitled to the salary. An estoppel never arises except where the other party was misled. McLaughlin was not misled. All the facts were well known to him, and he had the same means of judging as the board. He executed the bond because the board: was unwilling to take the risk. His purpose in giving it was to obtain the $300 of salary then due, and he did get the $300 upon the faith of the bond. Three months of time had then elapsed, and the salary of the office was $100 a month. This is conceded in the pleadings. The bond was not without consideration, for it was executed because the board was unwilling to take the risk, and McLaughlin desired to get the pay before the suit to settle the title to the office was decided. If the board had paid McLaughlin without the bond, he would have been answerable to Heyker for the salary of the office which he had received; and when the board paid Heyker, and was compelled to pay him, there is no reason why McLaughlin should not be answerable upon his bond of indemnity which he executed to the board, at least to the extent of the $300 which he obtained by reason of the bond. The words "any salary now due him as clerk," in the concluding part of the bond, refer to this $300. The meaning of the bond is that the obligors will indemnify the board against any loss it may sustain by reason of the payment to McLaughlin of the threemonths clerk salary then due. Judgment affirmed.

MONTZ v. SCHWABACHER et al. (Court of Appeals of Kentucky. Dec. 9, 1904.)

DEATH OF DEFENDANT - REVIVOR -MORTGAGE FORECLOSURE-DEATH OF MORTGAGOR WITHOUT HEIRS OR KINDRED PLEADING AND PROOF.

1. Where, after sale, but before confirmation thereof, in an action for foreclosure of a mortgage, a defendant dies, revivor is properly of the action against the heirs, under Civ. Code

Prac. § 507. instead of the judgment, under section 407 (3).

2. The allegation of the petition in an action to foreclose a mortgage that the mortgagor, who had died, "left no heirs or kindred of any kind or degree" surviving her, and that the property descended under the statute to her husband, is sufficient; this not being a mere conclusion of law, and it not being necessary to state specifically that she left neither paternal nor maternal kindred.

3. The purchaser under mortgage foreclosure sale will not be required to take the title where the petition alleges that the mortgagor left no heirs or kindred, and that the property descended under the statute to her husband, but there was no proof of this, but mere default by defendants, and no proceedings were had under the statute against unknown heirs.

Appeal from Circuit Court, Jefferson County, Chancery Division.

"To be officially reported."

Action by Helen Schwabacher against Mary Miller and another to foreclose a mortgage. Exceptions of W. S. Montz, the purchaser, to the confirmation of the sale were overruled, and he appeals. Reversed.

Strother & Hardin, for appellant. Goldsmith & Washer, for appellees.

BURNAM, C. J. On the 21st day of September, 1895, Eliza Miller and her husband, Chess Miller, executed a mortgage to Helen Schwabacher upon a small house and lot belonging to Eliza to secure the payment of a note for $250, which was executed for loan money. On the 25th of February, 1897, Eliza Miller died intestate. Shortly after the death of Eliza, Chess Miller married again, and occupied the property with his third wife until his death, on the 19th of December, 1902. He was survived by his third wife and a daughter, Sallie Bethel, a daughter of his first wife, who was in no wise related to his second wife, Eliza Miller. After the death of Chess Miller, Helen Schwabacher brought this action against the surviving widow, Mary Miller, and the daughter, Sallie Bethel, and her husband, to collect her debt, and asked an enforcement of the mortgage lien which had been executed to her to secure its payment. In addition to the usual allegations of such petition, the plaintiff further alleged "that Eliza Miller left no heirs or kindred of any kind or degree surviving her, and that the property descended under the statute to her husband, Chess Miller." The defendants filed no answer, and in July, 1903, a judgment was rendered directing the sale of the property to secure the plaintiff's debt, and also several tax liens due the city of Louisville. At the sale which was made pursuant to this judgment, the appellant, W. S. Montz, bought the property at the price of $775. After the sale, but before the confirmation thereof, Sallie Bethel died, leaving surviving her four children. Her death was suggested, and motion made to revive the action against her infant children. Shortly thereafter, Isham Miller qualified as guardian of the infants, and en