Lowe, &c. v. Commonwealth.

actions and prosecutions for misdemeanors, in the following cases only, viz.: If the judgment should be for a fine exceeding fifty dollars, or for imprisonment. exceeding thirty days; or, if the judgment be for the defendant, in cases in which a fine exceeding fifty dollars or confinement exceeding thirty days, might have been inflicted." The order of the circuit judge is not that appellants pay a fine, nor is it for imprisonment, nor fine and imprisonment, but it is simply to the effect that they shall give bond, conditioned for their good behavior in general and toward the complainant witness and his company in particular during a stated time, named in the order, and not exceeding one year.

This exact question has not heretofore been before us, although in the case of Commonwealth v. Oldham, 31 Ky. 466, it was held that, where a party had been arrested on a bench warrant and improperly discharged, the Commonwealth had no right of appeal; and in the case of State v. Long, 18 Ind. 438, the same doctrine was announced. In the case of State v. Lyon, 93 N. C. 576, it was held that there was no appeal from the action of the officer requiring a party to give security to keep the peace, "for," says the court, "the nature of the purpose to be subserved suggests and requires that the action of the officer requiring such security of a party must be conclusive, and not subject to the right of appeal ordinarily. An appeal, in the absence of any statutory regulation to the contrary, would vacate the order requiring security to keep the peace, and the persons from whom danger is apprehended might, without such restraint, commit the offense pending the appeal." And in the case of State v. Locust, 63 N. C. 574, it was held that generally there was no appeal from the action of the jus

Lowe, &c. v. Commonwealth.

tice of the peace in requiring a bond to keep the peace. There is much good sense and reason for such a rule. Proceedings of this character are instituted for the purpose of preventing crimes or violation of the law of a serious nature, and by requiring the one who is threatening to violate the law to give security to the effect that he will behave himself and not do so the good of society is promoted and the peace and quiet of the neighborhood is in a measure assured, so far as the parties complainant and accused are concerned. Nothing is exacted of the one required to give bond, further than what the law expects every good citizen to do without being coerced. The code provisions undertake to deal with the subject in detail, defining the mode of procedure with much particularity, and yet no provision is made therein for an appeal from the finding of the circuit judge. Whether the lawmakers failed to make such a provision because they intended that ultimate power should be rested with the circuit judge, or whether they regarded any order which he might make as an interlocutory one, and not a final order, and therefore not subject to appeal, we do not know; but certain it is that there is no statutory authority in this State authorizing an appeal. The order of the court is not final, for the judge has control over it during its legal existence, to-wit, the time the bond has to run.

For the reasons given, the appeal is dismissed.

Cornelison v. Million.

October 2.

Cornelison v. Million

Appeal from Madison Circuit Court.

J. M. BENTON, Circuit Judge.

From a judgment of dismissal plaintiff appealsReversed.

Judges-Guardian and Ward-Settlements-Liability of County Judge.-Ky. St. 1903, section 1065, 1068, providing that a county judge shall every two years require fiduciaries to settle their accounts, and at least once in each year inquire into the solvency of the sureties of each fiduciary, etc., are mandatory; and a county judge, acting as such from December, 1899, until January, 1902, cannot excuse nonperformance of such duties on the ground that the last settlement made by a guardian was in 1899, for, when the record showed the appointment of a guardian and his settlement, showing that he had in his hands money due the ward, it became the duty of the county judge to perform the statutory duties.

GRANT E. LILLY, Atty. for appellant.

The fact that the law makes it the duty of the county judge to examine the accounts of fiduciaries shows that it was the intention of the law to make said official alert, and to hold him responsible for his negligence.

If there had been a docket kept by the county court of fiduciaries, and this case had been omitted therefrom by the preceding county judge, there would be some merit in appellees contention as to the presumption that an officer had performed

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Cornelison v Million.

his duty. But as no docket was kept this was notice to appellee that he must employ the other avenues of information open to him. It was an easy matter to turn to the guardian bond book in the county court clerk's office and obtain a list of the guardians. The appellee cannot be excused by reason of the failure of his predecessor to perform their duty.

W. S. MOBERLEY for appellee.

1. We submit that the court below properly held that appellee had a perfect right to rely upon the legal presumption that his predecessors in office had done their duty, and that the county clerk had done his duty.

2. Our position is that the appellant must sue and recover his money from the party whose negligence was the proximate cause of its loss. Limitation has not run against any of appellee's predecessors in office whose derelictions, as shown by the record, were the proximate cause of appellant's loss, while 'he appellee is absolutely blameless.


In 1887 J. W. Bales was appointed by the Madison county court as guardian of the appellant, and executed a bond, with Socrates Maupin as his surety. In February, 1889, Bales made a settlement of his accounts as guardian, which was put to record in the proper office Again in January, 1902, he made a settlement, showing a balance of some $400 due his ward. Afterwards Cornelison brought suit against his guardian on the bond to recover the amount due him on the settlement, and obtained judgment, upon which execution issued and was returned 'No property found." Thereupon Cornelison brought this action against Chenault, Burnam, Sullivan, Turpin, and appellee, Million, who were judges of the Madison county court at different times from 1887 to 1905. The action was dismissed or filed away, with leave,

Cornelison v. Million.

as to all of the defendants except the appellee, Million. So that the only questions before us are whether or not the petition stated a cause of action as against appellee, Million, and whether or not his answer presented a defense.

It is in effect alleged that Million was elected county judge, and acted as such from December, 1899, until January, 1902; that he did not during that time make any inquiry into the solvency of Bales or his surety, and that if he had made reasonable inquiry as to their solvency he would have discovered that they were in failing circumstances and in debt in excess of the reasonable value of their property; and if he had required the guardian to make a settlement, or had inquired into the solvency of the surety, the condition of their affairs would have been disclosed, and the rights of the ward protected, and his estate saved from loss; but by reason of the negligence of Million in failing to inquire into the solvency of the guardian and his surety, and in failing to require the guardian to make a settlement, the whole of the amount due the ward has been lost. In his answer Million admitted that during the time he was judge he did not make any inquiry into the solvency of the guardian, Bales, or his surety, or require any settlement, and attempts to excuse himself from discharging this duty upon the ground that the only settlement Bales made as guardian previous to his assuming the office of county judge in 1899 was made in 1889; that he had no knowledge or information that Cornelison had a guardian, or that Bales had ever qualified as his guardian; that when he became county judge he examined the guardian settlement books in the clerk's office of his court, for the purpose of ascertaining what guardians had made settlements within the two

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