checks were raised and the appellees had a reasonable opportunity to discover the forgery, and negligently failed to do so, and because of such negligence the appellant suffered the loss, that the appellees were estopped from recovering, and the jury should find for appellant.

The latter clause of the above, if the law, puts upon the drawer of a check the duty of diligently investigating and seeking to find out, if any one had altered a check drawn by him, without any reason for apprehending, that such had been done, which could not be esteemed to be a reasonable requirement. There was not any evidence to the effect, that anything occurred before the checks were paid by the bank, which could have caused the drawers to apprehend the commission of a forgery. It was the bank's duty to know the genuineness of the endorsements and not the duty of the drawers. The checks were paid by the appellant before the appellee had any opportunity to see them, and no ground of estoppel could exist, unless the drawers of the check did or said something to induce and cause the appellant to pay them, when they would not have otherwise done so.

With reference to the instruction offered, which denied recovery by appellees, if they so negligently drew the checks, that blank spaces were left, in which words and figures could be inserted, which would alter them materially, and then when so done, a reasonably careful business man would not discover the forgery, many adjudications of this court are relied upon, to justify the contention, that it was reversible error for the court to refuse the instruction. An examination of these cases, however, develops the fact, that nearly all of them were decisions, in cases, which did not involve the fraudulent alteration of a completed negotiable instrument, but were cases wherein the implied authority of a holder of an incompleted negotiable instrument, to fill in the blank spaces with the proper words to make a completed instrument, was in question. Chiefly, they were opinions. declaring the common law to be what has since been substantially enacted into statutory law, by sections 13 and 14, of the Negotiable Instrument Law. Section 13, supra, provides, that when a negotiable instrument is expressed to be payable at a fixed period after date, and is issued without a date, or where the acceptance of an instrument payable at a fixed period, after sight, is not dated, any holder may insert the true date of the acceptance or execution and it will be payable accordingly, Section 14,

supra, with relation to such blanks, as the person in possession of it, has authority to fill, after the delivery of the instrument, is a declaration, substantially, of the various opinions of this court upon the subject, and is as follows:

"Blanks how filled. Where the instrument is wanting in any material particular, the person in possession thereof has prima facie authority to complete it by filling up the spaces therein. And a signature on a blank paper delivered by the person making the signature, in order that the paper may be converted into a negotiable instrument, operates as a prima facie authority to fill it up as such for any amount. In order, however, that any such instrument, when complete, may be enforced against any person, who becomes a party thereto prior to its completion, it must be filled up strictly in accordance with the authority given and within reasonable time. But, if any such instrument after completion is negotiable to a holder in due course, it is valid and effectual for all purposes in his hands, and he may enforce it as if it had been filled up strictly in accordance with the authority given, and within a reasonable time."

In Diamond Distilleries Co. v. Gott, 137 Ky. 585, this court, construing the above section of the statute, with sections 124 and 125, supra, in reference to the authority of a holder, after the delivery of a negotiable note, which obligates the maker to pay to the order of another, at an expressed period after date, a certain sum of moneywhich specifications were followed by the word "at," and it was followed by a blank space and then the words "value received" before the signature of the makerto fill the blank spaces by writing in a place of payment, it was said:

"The foregoing provisions of the statute are but restatements of the law with respect to negotiable instruments, as it has long been recognized by the courts of this state. Manifestly, a note executed and delivered by the maker in the form originally presented by the one under consideration is not upon its face a completed instrument. When one executes and puts in the hands of another a note provided with a blank line or space, apparently intended to be filled with the name of a bank or other place of payment, any holder, in due course, of the note has prima facie authority to fill such blank; and especially would such authority be implied where the blank line or space immediately follows a word, which

unmistakably indicates that it is to be filled with the place of payment.

However, in Woolfork v. Bank of America, 10 Bush 504, this court, citing Chitty on Bills, 100, and 2 Parsons on Contracts, 580, said:

"If the bill is complete, any alteration in a material part, without the consent or authority of the parties to it, renders it invalid in the hands of an innocent holder, as well as one who takes it with knowledge of the fraud.'

With reference to the liability of a maker of a negotiable instrument, when same is a completed instrument before delivery, and where it has thereafter been fraudulently altered in a material part, there has been a wide diversity of opinion, in the different jurisdictions, as to what effect, the negligence of the maker, in so making it, that it is easily susceptible of alteration, will have upon his liability, when it has been fraudulently altered and is in the hands of an innocent holder. One line of cases have held, that if a maker of a negotiable instrument, by a careless execution of the paper, leaves a vacant space in the face of the paper, so that another, by the insertion of words or figures in these spaces, may, materially, alter it, by changing the amount, or the time or the place of the payment, without leaving anything upon it to excite the suspicions of a reasonably careful man, and some one takes advantage of the opportunity and so alters it, that the maker will be liable upon it to a bona fide holder of it, without notice of the alteration, to the full amount to which it has been altered. Among the jurisdictions adhering to the above view has been this. In Blakey v. Johnson, 13 Bush 205, and Hacket v. First National Bank, 114 Ky. 195, this doctrine was announced, and it was referred to in Newell v. Bank, 13 R. 775, and Bank v. Haldman, 109 Ky. 222, but in each of those cases, the alterations were made in a promissory note and by some one of the parties to the note and to whom the note was in a way entrusted by the maker. Another line of cases, and by a larger number of jurisdictions, it has been held, that where a negotiable instrument has been signed and delivered as a completed instrument, and without the assent of the maker, the instrument has been altered by the insertion of words or figures in the blank spaces left in the instrument, and although done in such a manner, as to leave no mark or indication of the alteration, the instrument is avoided, although it is held by a bona fide holder for value. 5 R. C. L. 1036. The chief

reason ordinarily advanced for this rule is, that negligence in the making of a negotiable instrument could not be considered the cause of what would require the criminal act of another to perform. The decisions, heretofore cited, as having been rendered by this court, in support of the contrary doctrine, were all before the enactment of the Negotiable Instrument Law, in this state, which, by the provisions of section 124, supra, seems to have changed the former rule in this jurisdiction, as the provisions of the section clearly avoids a completed negotiable instrument, as to the parties to it, who do not assent to the alteration, but makes the liability of its holder, who has not assented to the alteration, the same but no greater than it was, before the alteration. The checks in controversy, in the instant case, were all completed instruments before they were delivered. The blank spaces in them were all filled by appropriate words and figures, although in some of the checks the entire spaces for words and figures were not filled up. It could not be inferred in any way from the face of the check, that any one was authorized to either add to or take away from the letters and figures there written. Hence, the court was not in error in rejecting the instructions offered by the appellant. There being no controversy, as to the facts, in the case, and no controversy, as to the fact, that the amount to which the checks were raised was six hundred and twenty dollars, in excess, of the total sums for which the checks were drawn, the court should have instructed the jury as, heretofore, directed, in place of the instructions given.

For the reason, that the court erred, in adjudging a recovery of the entire amount of the checks as raised, instead of the excess over the amounts for which the checks were drawn, the judgment is reversed, and the cause remanded, but as it is apparent that no other verdict or judgment can be rendered upon the facts of the case, the court is directed to set aside the judgment, and in its stead, to render a judgment for appellees for six hundred and twenty dollars, with interest as in the former judgment.

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Clark County National Bank v. City of Winchester.

(Decided November 2, 1917.)

Appeal from Clark Circuit Court.

Taxation-Assessment of Property.-Where a taxpayer lists his property at a valuation greater than required by law and does not thereafter complain of such valuation before the Board of Supervisors or Equalization, and without objection or protest pays the tax upon the assessment, he will not be heard to complain. Municipal Corporations-Taxation-City Council Without Authority to Release.-A city council has no authority by ordinance or otherwise to release a taxpayer in whole, or in part, of the taxes due by such taxpayer.

Municipal Corporations - Taxation - Excessive Assessment by Bank-Release by City-Proceeding to Collect.-Where a bank lists its property in excess of the amount for which it might lawfully have listed it but makes no complaint of its valuation, and the tax books are made up and tax bill rendered to and paid by the bank without objection or protest, and in the following year when the next tax bill is due the bank claims to have discovered that it by mistake listed its property at a greater valuation than was required, and presents the matter to the city council and procures an order from that body directing the collector of taxes to credit the tax bill of the bank with the amount estimated to have been paid in excess of the correct amount for the previous year, and this credit is given by the collector, the city is not estopped thereafter to institute and maintain an action to recover the balance of the taxes due and which was attempted to be remitted by the council, because the ordinance or resolution attempting to expunge the taxes pro tanto was ultra vires and void.

PENDLETON & BUSH for appellant.

H. H. MOORE, F. II. IIAGGARD and J. M. BENTON for appellee.

OPINION OF THE COURT BY JUDGE SAMPSON-Affirming. The city of Winchester instituted this action in the Clark circuit court against appellant bank, in August, 1916, to recover of it nine hundred ninety-two ($992.89) dollars and eighty-nine cents tax, due for the year 1914, and ninety-nine ($99.28) dollars and twenty-eight cents penalties. It is admitted that the city properly levied taxes for the years 1913 and 1914, and that appellant bank was properly included upon the list for each of these years, but the bank in its answer asserts that for the year 1913, by mistake, it listed property in excess of what it was legally bound to pay tax upon in such sum as to increase its tax bill $992.89 above what it should