In states where the common-law disability of a feme covert to contract still exists so far as to prevent her from becoming surety for her husband's debts, the decisions are numerous and nearly all to the same effect. A few more recent cases are noticed to illus trate their trend. strictive act, it was not the intention of the 783: "Whatever device may be resorted to Legislature to set a married woman wholly for the purpose of evading the statute, if the "free from the thraldom of the common person seeking to enforce the contract knew law." It was designed to remove her disa- of, or participated in, the design, or purbilities so far, and so far only, as could safe-posely remained ignorant, courts will deal ly be done without prejudice to the mar- with the transaction according to its subriage relation. It was regarded as against stance, regardless of the form in which it public policy to permit the wife to contract has been disguised." with her husband, or to make contracts with others affecting her property in which the husband continued to have rights by virtue of the marital relation, viz., property not held to her sole and separate use. As to such property she is still under the commonlaw disability. Rowley et ux. v. Shepardson et ux.. 83 Vt. 167, 74 Atl. 1002, 138 Am. St. Rep. 1078; Laird v. Perry, 74 Vt. 454, 52 Atl. 1040, 59 L. R. A. 340; Hubbard v. Hubbard, 77 Vt. 73, 58 Atl. 969, 67 L. R. A. 969, 107 Am. St. Rep. 749, 2 Ann. Cas. 315; Ainger v. White's Adm'r, 85 Vt. 446, 82 Atl. 666. For the same reason, it was also regarded as being unwise to permit her to make contracts with others by which she became surety for her husband's debts except by way of mortgage. Nor do we look far to discover the reason for this limitation upon her right to make contracts. Dependence and natural feelings of trust and confidence arising from the marital relation unfit the wife to "deal at arm's length" with her husband, or with one seeking to fortify his claim against the husband, as is amply illustrated by what the defendant's evidence tended to show happened in this case. Our lawmakers thought. it seems, that the wife would be deterred from making improvident contracts of suretyship for her husband by requiring that such contract should be by way of mortgage only, thus warning her of the consequences of her act. [3] Such being the policy of the law, the courts should scan with jealous eye any attempt by indirection to accomplish what the law forbids. While freedom to contract with others than her husband with reference to her sole and separate estate, in the present state of the law, may permit a wife to borrow money on the credit of such estate with which to pay her husband's debts-a question which we do not need to decide for such was not the case at bar-the courts will look behind the mere form of the transaction to discover its true import; and if it appears that the spirit, if not the letter, of the statute abridging the power of the wife to contract is being infringed, it becomes their duty to afford her the protection that the law guarantees. As was said in Field v. Campbell, 164 Ind. 389, 72 N. E. 260, 108 Am. St. Rep. 301: "If it appears that an elaboration of outward details was, as both parties knew, but a cloak to cover an attempt to conclude a contract in violation of the statute, the indirection in method by which they have proceeded will not avail to save the transaction." Also, in Long v. An acknowledgment by a married woman of liability for advances made her husband, and her undertaking that the amount of such advances should be set off against her interest in certain lands, was invalid under Code 1896, § 2529, providing that the wife shall not become surety for the husband. Horton v. Hill, 138 Ala. 625, 36 South. 465. Where a husband and wife executed a joint note as a basis of credit for goods to be furnished the husband in conducting his business, “and for things for her family," to be furnished out of the payee's store, the wife's relation to the note, as to the goods to be supplied, and which were supplied, to the husband for carrying on his business, was that of surety only. Smith v. Hardman, 99 Ga. 381, 27 S. E. 731. A wife who executed a mortgage on her homestead as additional security for notes executed by her husband was merely a surety as to the execution of the mortgage. Lingenfelter Bros. v. Bowman (Iowa) 137 N. W. 946. Under Code, §§ 1754, 1783, 5087, positively forbidding any assumption by a wife of the debts of her husband, if a creditor of the husband in any manner receives in payment of his debt money of the wife, knowing it to be hers, the wife can recover of him the amount so paid. Lewis v. Howell, 98 Ga. 428, 25 S. E. 504. A contract based on a mere colorable transaction to which the lender is a party and a wife the borrower, the purpose of which is to make the wife surety of the husband, will not be enforced against her. Johnson v. A. Leffler Co., 122 Ga. 670, 50 S. E. 488. Where a married woman gave a note to one to whom her husband was indebted in satisfaction of the indebtedness, the wife was not the less a surety because of the fact that the note was given to one to whom the husband was then indebted. Harbaugh v. Tanner, 163 Ind. 574, 71 N. E. 145. A husband applying to a bank for a loan was refused, but was told that he could have it on a note with the wife as principal, or that the loan would be made to the wife. Upon the husband's afterward tendering the note signed by him and his wife with the wife's signature above his own, the proceeds of the note were placed to the husband's credit on the bank's books. The cashier of the bank knew that the husband was mere surety. Ritter v. Bruss, 116 Wis. 55, 92 N. W. 361. [4] The fact that the defendant signed the note, which, on its face, was a contract with the plaintiff apparently independent of her husband's indebtedness, does not preclude her from showing the true intent of the transaction. It is not necessary that she bring herself within the rules by which the rights of sureties are ordinarily determined. Bradley Fertilizer Co. v. Caswell, 65 Vt. 231, 26 Atl. 956. In the latter case it was held that it was always competent for a married woman who has signed a personal obligation with her husband to show that her relation to the obligation is that of surety. It is consistent with the policy of the law limiting her right to become surety for her husband's debts to permit her to show that a note signed by her in which her husband does not join is given as collateral security of the husband's indebtedness, when, as here, it appears that the other party to the note was cognizant of all the facts. Indeed, it seems that the case was tried in the court below upon this theory, as the evidence tending to support such claim was received without ob and the wife had nothing to do with the transaction except to sign the note; she neither having applied for a loan nor having been seen nor consulted by the bank. Held, that the loan was to the husband as principal, with the wife as surety. The device of placing the wife's signature above the husband's would not evade the statute making the wife's estate not liable upon her contract to be another's surety. Farmers' Bank of Wickliffe v. Beck (Ky.) 114 S. W. 1189. Where the husband and wife signed a note jointly, the word "principal" appearing after the wife's name, when the fact was that the note was executed for the purpose of taking up a note executed by the husband with another as surety, the wife was surety merely, and was therefore not bound. Postell v. Crumbaugh, 23 Ky. Law Rep. 2193, 66 S. W. 830. A married woman cannot bind herself by a note given as surety for her husband in order to secure the payment of money nominally received by her, yet, in fact, received for the use of her husband. Feather v. Feather's Estate, 116 Mich. 384, 74 N. W. 324. Where a loan is made to a husband, and he gets the money, and the land on which the deed of trust, signed by the hus-jection. band and wife, is given, belongs to the wife, [5] A satisfactory test as to whether the her position is that of surety to him. Brueg-transaction was one of suretyship within the ge v. Bedard, 89 Mo. App. 543. Under Pub. St. c. 176, § 2, providing that no contract or conveyance by a married woman as surety for her husband, nor any undertaking by her in his behalf, shall be binding on her, a wife is not liable on a note given by her for money borrowed by her, and used to pay his note to the person from whom she borrowed the money, provided such payment was a part of the agreement whereby the money was loaned to her. First Nat. Bank v. Hunton, 69 N. H. 509, 45 Atl. 351. Where goods were billed and receipted for in the husband's name, and the wife had nothing to do with ordering them, and there was no evidence that the sellers believed they were giving credit to her, she is not liable for the price because afterwards, when an attachment was about to be made against the husband, she agreed that she and her husband would pay for the goods if the attachment was forborne, since that only tends to prove a promise to pay the debt of another. Mitchell v. Miller, 25 Misc. Rep. 179, 54 N. Y. Supp. 180. Where a husband is largely indebted to a bank of which he is president, and borrows money to pay the debt, and his wife, who is in no way responsible for it, gives her individual note, secured by bank stock, and her bond, secured by a mortgage, which is joined in by her husband, the wife is surety only for the debt of her husband. Stewart v. Stewart, 207 Pa. 59, 56 Atl. 323. Where one who had loaned a husband money took the note of husband and wife without having had negotiations or communications with her as to the matter, he cannot invoke against meaning of P. S. 3039, is whether the defendant received in person, or for the benefit of her estate, the consideration upon which the contract depends; and the question is to be determined, not from the form of the contract, nor from the basis upon which the transaction was had, but from its real purpose and effect. The defendant's evidence, if believed, presented a case clearly within the disabling statute and brought the knowledge of the facts home to the plaintiff. It follows that she was at least entitled to go to the jury. The questions of burden of proof and whether on the plaintiff's case she would have been entitled to a directed verdict are not presented, as these questions were not raised below. [6] The fact that the note was renewed several times and that the note in suit was given after the defendant became sole does not, as has already been seen, affect the defendant's liability. In the circumstances, any defense that could be made against the original note may be made against renewals thereof. Tyler v. Anderson, 106 Ind. 185, 6 N. E. 600. The last renewal note being void as to the defendant, the note sued on fails of consideration, on the authority of our own cases cited above. The cases in this state cited by the plaintiff on the question of consideration are not in point, none of them involving the disability of married women to contract, and they are entirely in harmony with our cases in which that question is ruled against the plaintiff's contention. [7] The fact that she proved the note against her husband's estate does not affect might throw light upon her claim as to what | This being so, we dispose of the question as the transaction in fact was, it would not, as it is presented in the exceptions. the plaintiff contends, furnish consideration [10] As bearing upon the question whether for the note and would not preclude her from the plaintiff accepted the original note in the asserting that the note was void. way its evidence tended to show, the defend [8] Against defendant's objection and ex-ant offered to show by its cashier that, "if ception the court received in evidence a the plaintiff took the note without any invesmortgage to the bank executed by Mr. Ber-tigation of the parties or genuineness of the toli alone covering the homestead, the title to which was then in him. This mortgage was given more than six years before the first note signed by the defendant was delivered to the bank and secured past and future indebtedness of Bertoli to the bank. The mortgage was in force at the time said not. was given. The mortgage was offered and received upon the theory that, in connection with the evidence of the surrender to Bertoli of indebtedness to the amount of the note given by the defendant, and with the offer to show further that after the note was given by the defendant she acquired title to the homestead by a series of conveyances with out consideration, the surrender by the plaintiff to Bertoli of his notes secured by the mortgage for the wife's unsecured note furnished a consideration moving to the defend ant for her note to the bank. The plaintiff's contention cannot be sustained. Among other objections, the defendant insisted that the mortgage did not tend to show consideration for the note; and that was, so far as appears, its only materiality. At the time the original note was given, title to the mortgage property was in the husband. The only property interest she then had in the premises was a homestead interest, and as to that the mortgage was void, as she did not join in its execution. P. S. 2553; Martin et ux. v. Harrington, 73 Vt. 193, 50 Atl. 1074, 87 Am. St. Rep. 704. If it had appeared that she gave the note to relieve the mortgaged premises of so much of the indebtedness resting upon it (which did not in fact appear), it would not have benefited her separate estate, as there was no valid incumbrance resting upon it. The fact that she subsequently acquired title to the mortgaged premises relieved by so much of the incumbrance placed upon it by her husband would not relate back to furnish consideration for the note, certainly unless it appeared that the note was given in contemplation of the subsequent transfer to her. On the case presented it was error to receive the mortgage. [9] On this question the transcript of the evidence was "referred to and made part of this exception." This reference is not sufficient to give the transcript standing as part of the bill of exceptions. It will not be permitted to contradict or override the statement of the bill unless made controlling. It is not enough to refer to it generally. State v. Howard, 83 Vt. 6, 24, 74 Atl. 392; Lawson v. Crane & Hall, 83 Vt. 115, 118, 74 Atl. 641; signature, it would appear that the whole exception. [11] The sworn statement of G. Gentili who signed the original note with the defendant by agreement was used as a deposition, reserving the right to object to matters of substance. Certain portions of this statement, on the plaintiff's objection, were excluded on the ground that the statements not made in the presence of any of the of Bertoli referred to in the deposition were officers of the bank, to which the defendant was allowed an exception. The case shows that the rejected statements were made by Bertoli to the witness and the defendant with no representative of the bank present. They were by way of inducement to secure the witness' signature to the note and were clearly hearsay, and so properly excluded unless they fall within the rule that permits declarations of an agent made in the course of his agency to be shown as part of the transaction. The rule invoked by the defendant requires that the utterance of the agent, must have been made in and about the business on which the agent was employed and while actually engaged in that business. 3 Wig. § 1797. The defendant contends that Bertoli was the bank's agent to procure this note and that as such his declarations would be evidence against the plaintiff. Defendant says further that she had a right to show what authority Bertoli had and that she had no better way to do this than to show what he said to induce her and Gentili to sign the note. [12] As to the latter contention, it is enough to say that the fact of agency cannot be shown by the mere acts and declarations of the alleged agent. Prouty v. Nichols, 82 Vt. 181, 72 Atl. 988, 137 Am. St. Rep. 996. The case does not support the defendant's claim that Bertoli was acting as agent of the bank. On the plaintiff's case, if an agent, it was for the signers of the note to effect not present a case of agency. There being no other theory urged upon which this evidence was admissible, we hold that it was properly excluded. Judgment reversed, and cause remanded. (4 Boyce, 508) STIEFF v. BAILEY. (Superior Court of Delaware. New Castle. Sept. 29, 1913.) 1. PARTIES (§ 38*)-INTERVENTION-RIGHT TO INTERVENE. The right of a third person to intervene at law in an action in which he is not a party depends largely, if not entirely, on the necessity for such intervention. [Ed. Note. For other cases, see Parties, Cent. Dig. §§ 57, 58; Dec. Dig. § 38.*] 2. PARTIES (§ 41*)-INTERVENTION-RIGHT TO INTERVENE. To justify intervention of a third party in an action at law, it must be shown that he has such a relation to the subject-matter of the action and to the original parties thereto that necessity requires the litigation of his rights in conjunction with those of the original par ties. [Ed. Note.-For other cases, see Parties, Cent. Dig. § 68; Dec. Dig. § 41.*] 3. REPLEVIN (§ 52*)-PARTIES-INTERVENTION -BAILIFF. Where, in replevin to recover a piano against a tenant, plaintiff did not join a bailiff of the landlord, who had levied a distress warrant thereon, the bailiff was entitled to intervene and defend under his distraint. [Ed. Note.-For other cases. see Replevin, Cent. Dig. § 193; Dec. Dig. § 52.*] Action by Frederick P. Stieff, trading as Charles M. Stieff, against Muriel Bailey. Application by Charles Green, as bailiff of the landlord of the premises from which the property replevied was taken, to intervene and to claim the property on behalf of the By the writ of replevin issued in this case, a piano was taken from the defendant and delivered to the plaintiff. Charles Green, the bailiff of the landlord of the premises (from which the piano was taken upon the replevin), claims that the piano is liable for the payment of rent by the defendant, and that as bailiff of the party to whom the rent is due he has an interest in the property replevied, by virtue of an antecedent distress thereupon, and prays leave to intervene in this action in his capacity of bailiff, and to be made a party defendant for the purpose of interposing his defense as bailiff to the recovery of a judgment by the plaintiff. The application is opposed by the plaintiff upon the ground that the right to intervene and interplead in such a case is neither conferred by statute nor given by the common law. WOOLLEY, J. (delivering the opinion of the court). This application is twofold in substance. It is an application for leave to intervene, to be followed by a rule to interplead, the controversy having shifted from the plaintiff and defendant to the plaintiff and the person seeking leave to be made a party. The remedy by interpleader was not altogether unknown at common law, but it was very narrow in its application. It was usually confined to actions of detinue, quare inpedit, and writs of right of award (2 D'Anv. Abr. tit. "Enterpleader"; 23 Cyc. 2), and, when invoked, sometimes required the presence of a new party claimant, who, if not in court upon his own application, was brought into court by appropriate process (3 Reeves, Hist. Com. L. c. 23, pp. 448-455; 2 Story, Eq. Jur. § 801). [1] The practice was recognized in the early colonial and state courts, and has since tion. It is based upon the theory that a pergrown and somewhat expanded in its applicason with rights to urge or protect may be without an opportunity at law to maintain or protect them unless permitted to intervene and interplead in the one matter and in the only court in which these rights are being litigated, and that without such permission the law affords no means, under the peculiar circumstances of a case, for the enforcement of a right or the prevention of a wrong. The right of a person to intervene at law in an action in which he is not a party depends largely, if not entirely, upon the necessity for intervening. [2] To justify the injection in an action at be shown that the new party has a relation law of a new party by intervention, it must to the subject-matter of the action and to the original parties thereto, that of necessity requires the litigating of his rights in conjunction with the litigating of the rights of those originally joined. This is recognized in the situation where a mortgagee institutes an action of scire facias on a mortgage, making as party defendants only the mortgagors, who may have lost all interest in the obligation by the alienation of the property upon which it is a lien, and omitting as party defendant, as may be done, the terre-tenant. If the terre-tenant is not a party, but has a defense to the foreclosure of the mortgage against his land, there is no way at law for him to make such a defense to the action without being made a party thereto. If the mortgagee has not made him a party, the court will allow him to intervene and become a party, and in that way, from the very necessity of the situation, permit the terretenant by affidavit of defense or plea to present and have heard his defense to the action. [3] In the case under consideration, the plaintiff could, and if he knew the fact, prob Action by the Virginia Kid Company against the New Castle Leather Company and others to recover the purchase price of a leather seasoning machine. Verdict for ably should, have joined as a party defend- and as the plaintiff has failed to make him (4 Boyce, 511) VIRGINIA KID CO. v. NEW CASTLE (Superior Court of Delaware. New Castle. 1. SALES (§ 201*)-PASSING OF TITLE-RIGHT TO INSPECT. A buyer's right to inspect a machine, and reject the same if not in accordance with the contract, does not prevent the transfer of title and risk to the buyer, on the delivery of the machine to the carrier for transportation to the buyer. [Ed. Note. For other cases, see Sales, Cent. Dig. $$ 529-541; Dec. Dig. § 201.*] 2. SALES (§ 260*)-WARRANTY-WHAT CONSTITUTES-AFFIRMATION OF FACTS. Every affirmation by a seller, at the time of a sale, as a fact and as an inducement to the sale, if relied on by the buyer, amounts to a warranty. [Ed. Note. For other cases, see Sales, Cent. Dig. §§ 719-726; Dec. Dig. § 260.*] 3. SALES (§ 273*)-CHARACTER OF ARTICLESPARTICULAR USE-IMPLIED WARRANTY. Where an article is sold for a particular use, there is an implied warranty that the article is fit for the purpose, and, if it is of no use whatever for that purpose, there is a total failure of consideration for the contract. [Ed. Note. For other cases, see Sales, Cent. Dig. 88 772-776; Dec. Dig. § 273.*] 4. SALES (§ 168*) - RIGHTS OF BUYER-IN SPECTION. Where a buyer received a machine from a carrier, the buyer had a reasonable time within which to inspect it and determine whether it complied with the conditions of the contract, and if, after such examination, it was decided that the parts did not conform to the conditions, it might be returned; but if such right is not exercised within a reasonable time it is waived. Action of assumpsit (No. 81, September term, 1913) on the common counts, with a bill of particulars, apprising the defendant of a single item of demand, to wit: "January 12, 1910. One Slocomb seasoning machine, $1,000.00. Int. from February 1, 1910.” of limitations; non assumpsit relied upon. Pleas, non assumpsit, payment, and statute The facts and contentions of the parties appear in the charge of the court. See 2 Boyce, 327, 80 Atl. 241. Argued before BOYCE and RICE, JJ. Reuben Satterthwaite, of Wilmington, for plaintiff. Robert H. Richards, of Wilming ton, for defendant. It is BOYCE, J. (charging the jury). Gentlemen of the jury: This action was brought by Virginia Kid Company, Incorporated, against Richard Patzowsky, Alden B. Sleeper and Robert E. Binger, late trading under the firm name of New Castle Leather Company, to recover the sum of $1,000 with interest from February 1, 1910, for a certain machine alleged to have been sold by the Mattoax Leather Company for and on account of the Virginia Kid Company, under an agreement entered into between the parties. conceded that at the time of the alleged sale the plaintiff was the owner of the machine, and that the Mattoax Leather Company acted as the agent of the plaintiff; hence the contract entered into by the Mattoax Leather Company is deemed to be the contract of the plaintiff. It further appears that the negotiations with the defendants were first begun by one Beckett, a broker in Massachusetts, as representative of the Mattoax Leather Company. It is not denied that the Mattoax Leather Company for the Virginia Kid Company delivered the machine to a common carrier, at Petersburg, Va., for transportation to the plaintiff, in this city, and that the same has not been paid for. The contract in this case is particularly [Ed. Note. For other cases, see Sales, Cent. evidenced by the following letters: The first Dig. §§ 403-408; Dec. Dig. § 168.*] is dated Petersburg, Va., November 15, 1909, and reads: 5. SALES (§ 35*) CONTRACT - MEETING OF MINDS. "The New Castle Leather Company, Wilming ton, Del. Plaintiff purchased a machine about April 6, 1906, and used it at intervals, about six months, in a period of two years. Thereafter "Gentlemen: We are in receipt of a letplaintiff sold it to defendant under a representation that the machine had only run about ter from Mr. Geo. P. Beckett, of the Peabody six months and was as good as new. Held, Leather Machinery Company, of Peabody, that such representation was ambiguous, and, Mass., with a copy of a letter from you inif defendants were authorized therefrom reasonably to understand that the machine was new closed, in which you state that, if we will about six months before the date of the repre- guarantee the Slocomb serial table seasoning sentation, and with such understanding pur- machine to be as good as new, we can ship it chased the machine, then there was no meeting to you for delivery about Jan. 1st. of the minds, and no contract of sale. [Ed. Note. For other cases, see Sales, Cent. Dig. §§ 62, 64; Dec. Dig. § 35.*] "We will guarantee to ship you all the parts of this machine in an unbroken condi |