this court, and, although in many of them the money was advanced on the faith and credit of the married 'woman's name, and her desire to thus give assistance was not questioned, we have uniformly held that the willingness of a married woman to become surety would not be permitted to defeat the statute enacted for her protection. In every instance in which it has been made to appear that the contract or arrangement was mere vides in part that: "No part of a married | men have been made to evade its provisions woman's estate shall be subjected to the intended for their benefit and protection. Genpayment or satisfaction of any liability, upon erally the effort has been made in the desire of a contract made after marriage, to answer for the wife to assist her husband, or the mother the debt, default, or misdoing of another, to assist her children, by lending to one or the including her husband, unless such estate other the use of her name and credit. Severshall have been set apart for that purpose al cases that we will hereafter notice involvby deed of mortgage or other conveyance. ing questions like these have come before By section 2128 of the Kentucky Statutes the powers of a married woman are thus defined: "A married woman may take, acquire and hold property, real and personal, by gift, devise or descent, or by purchase, and she may, in her own name, as if she were unmarried, sell and dispose of her personal property. She may make contracts and sue and be sued, as a single woman, except that she may not make any executory contract to sell or convey or mort-ly a device or scheme suggested, devised, or gage her real estate, unless her husband join agreed to by a creditor to protect himself in such contract; but she shall have the from probable loss, or by a lender to aid a power and right to rent out her real estate, person in procuring money with the assistand collect, receive and recover in her own ance of the married woman's name as prinname the rents thereof, and make contracts cipal when the lender knew she was really for the improvement thereof. ** * It the surety and the money was not paid to will therefore be seen that under the statute her, we have interposed to save from her the only limitations upon the power of a own lack of judgment and discretion the married woman to make contracts are that, married woman. But, on the other hand, we if she desires to sell, convey, or mortgage her have never attempted to impair or nullify real estate, her husband must join in the the statute conferring upon a married woman contract; and that for no liability assumed the right to make contracts or borrow money for the debt, liability, or misdoing of another and do with it as she pleased. The court can her estate be subjected unless it shall has never attempted to restrain in any way have been set apart for that purpose by deed the disposition that a married woman might of mortgage or other conveyance. A mar- make of money lent to her as principal. It ried woman, except in these particulars, has would be a foolish and impracticable thing the privileges of a single woman. There is for courts to undertake to restrain or limit no inhibition whatever upon her right to a married woman in the control or disposiborrow money, or to make such disposition tion of money or property she had the right of the money so borrowed as she pleases. to pledge her credit to obtain. When the It follows from this as a matter of course transaction by which the married woman obthat when a married woman borrows money, tains money is fair on its face is not an or assumes any liability, or becomes indebt- effort to evade or avoid the statute, and the ed, that her property may be subjected to money for which the note is executed is the payment of the debt, unless the debt has paid to her, the courts will not inquire furbeen contracted as surety in some form or ther into the incident or concern themselves another. The Legislature, recognizing the about what the married woman does with case with which married women might be the money so obtained. As said in Third Nainduced to become surety for other persons, tional Bank of Louisville v. Tierney, 110 S. and especially for their husbands and desir- W. 293, 33 Ky. Law Rep. 418: "The statute ing to protect them as far as possible from was not designed to prevent a married wothe financial misfortunes that too often be- man from borrowing money or to deny her fall sureties, inserted the provision that a the right to discharge her husband's debts married woman's estate could not be sub- or to do with her money as she pleases. Nor jected to the payment of a debt or liability are the rights of the lender affected or prejcontracted as surety, unless she had first un- udiced by the disposition made by the wife dertaken to pledge her estate for this pur- of the money borrowed upon her note, propose in the solemn and formal manner revided the transaction is not a subterfuge or quired in the execution of deeds or other in- device to evade the statute or a scheme to struments, or by the no less formal procedure procure the obligation of the wife as surety of a contract accompanied by the writing in- for her husband or another." tended to be pledged. Miller v. Sanders, 98 Ky. 535, 33 S. W. 621; Wirgman v. Miller, 98 Ky. 620, 33 S. W. 937; New York Life Ins. Co. v. Miller, 56 S. W. 975, 22 Ky. Law Rep. 230. But, notwithstanding this statute. num In the case before us it is manifest that Middleton made no effort to evade or avoid the statute. Tyler at the time of the execution of the note was solvent. He did not owe Middleton anything. In no manner or derive any benefit or advantage from the lending of the money other than the interest that was agreed to be paid. There is no evidence whatever that Middleton had any desire to favor Tyler by lending the money, or that with this purpose in view he procured him to produce a note with Mrs. Tyler's name first upon it. In short, the acceptance of the note and the lending of the money was an ordinary, legitimate business transaction. Middleton, as trustee, had money to lend, and the Tylers-it is immaterial which-wanted to borrow it. Middleton did not consider it a safe business proposition to lend the money on the name of Tyler alone, although he was solvent, and required him to produce a note with the name of Mrs. Tyler signed on it first, with Tyler's name as surety. The fact that Mrs. Tyler could not bind her estate as surety was known to Middleton, and hence he required a note with the name of Mrs. Tyler signed first and Tyler's name as surety. It is true that the arrangement of the names on the note does not conclusively establish the fact as to who is principal and who is surety, as it may be shown by evidence that the person whose name is first signed is a surety, and the person whose name is last signed is principal, but, generally speaking, and in the usual commercial transactions, the first signer is regarded as the principal. As said in Hart v. Bank of Russellville, 105 S. W. 934, 32 Ky. Law Rep. 338: "Ordinarily it will be presumed that the name appearing first on a note as an obligor is that of the principal debtor, but this presumption may be overthrown by the facts of the case, or the conduct of the parties themselves, and it is admissible for one, whose name appears first, or above that of another on a note, to prove that his relation to the obligation is nevertheless that of a surety, and this he may do by parol testimony. Lewis v. Harbin, 5 B. Mon. 564; Emmons v. Overton, 18 B. Mon. 643; First National Bank v. Gaines, 87 Ky. 601, 9 S. W. 396; Skinner v. Lynn, 51 S. W. 167, 21 Ky. Law Rep. 185." The check was made payable to both of them. It was not available until indorsed by both. The mere fact that the check was delivered by Middleton to Tyler did not authorize, nor indeed permit, Tyler to obtain the money upon it until his wife had first indorsed it. When the check was delivered to her by her husband, and she wrote her name on the back of it, thereby giving it commercial and trading currency and value, and handed it to her husband to do with as he pleased, it was her act, and not the act of Middleton, that transferred the title of the check to Tyler, and gave him the power to dispose of the proceeds. For all practical purposes the check was made payable to Mrs. Tyler alone because until indorsed by her it had no trading or commercial value. If the money was used by Tyler in his individual business, it him so to do, and that she had the legal right to do this cannot be doubted. If she did not receive any part of the money realized from the check, it was because she gave the check to her husband presumably to do with as he pleased. Under these facts, it seems to us not to be an important or controlling question in the case that the money obtained upon the check was used by Tyler in his individual business, and that Mrs. Tyler did not receive for her own benefit any part of the money, and therefore the court erred in giving to the jury the instructions offered by appellee. The instruction given by the court is a substantial copy of the instruction approved by this court in the case of Black v. McCarley's Ex'r, 104 S. W. 987, 31 Ky. Law Rep. 1198, but the facts of that case were very different from the facts of the one we are considering. It is shown by the opinion of the court in the Black Case that the note sued on was signed first by Thomas N. Black, the husband, then by Mary N. Black, the wife; her name being followed by that of I. Biddle Black. The check given for the amount of the note was made payable to Thomas N. Black, the husband, who used it in his business. There was no evidence even tending to show that the money was loaned to Mrs. Black or advanced on the faith and credit of her name. The court said: "The name of Thomas N. Black appears first on the note. There is no evidence whatever tending to show that his wife signed the note as principal, or authorized him to receive the proceeds realized from it, or that she received any part of the proceeds, or that she ever occupied any attitude other than that of a surety in the note." In the case before us there is some evidence tending to show that Mrs. Tyler signed the note as principal, and the uncontradicted evidence is that the check was made payable to her as well as her husband, and that she indorsed the check and delivered it to her husband, thereby authorizing and enabling him to collect and receive the proceeds. Under the facts of the Black Case, it was proper to instruct the jury that if the money for which the note was executed was borrowed by Black and used by him in his individual business, and no part of it received by Mary N. Black or used for her benefit or by her individually, for the purpose of testing the question whether or not she was the surety of Thomas N. Black. In the case before us the name of Mrs. Tyler appears first on the note, and her husband was enabled to obtain the proceeds of the note by reason of her indorsement of the check. In Hines & Co. v. Hays, 82 S. W. 1007, 26 Ky. Law Rep. 967, relied upon by appellee, although the facts are very similar to the facts in the case at bar, the court said: "As a matter of fact, however, the bank did not know Mattie E. Hays in the transaction, 1 subject of the indebtedness; she lived some 14 miles away, and the terms of the contract were arranged through the son, it being assumed that as her name was signed first on the note therefore she was principal; in fact, however, the debt really and technically was that of Forrest L. Hays. and the proceeds of the note were placed to his credit in the bank to extinguish the overdraft. The court said: "It is perfectly evident that her name was placed first on the note simply to evade the operation of the statute, which made the note void as to her if she signed as surety." In Milburn v. The evidence shows without doubt that the Jackson, 52 S. W. 949, 21 Ky. Law. Rep. note to the Warren Deposit Bank was a 700, Deposit Bank of Carlisle v. Stitt, 107 debt of Forrest L. Hays, and was known to Ky. 49, 52 S. W. 950, and Postell v. Crumbe so by the bank. The signing by the moth- baugh, 66 S. W. 830, 23 Ky. Law Rep. 2193, er, M. E. Hays, of the note first, and placing it was attempted to hold married women the proceeds to her credit, was a mere tech- responsible upon notes executed in satisfacnical arrangement to avoid the effect of the tion of a debt due by their husbands, respecstatute prohibiting married women binding | tively, but the court held that this could not themselves as sureties"-thus making it ap- be done. In the Tierney Case, supra, Tierpear that the arrangement was a mere de-ney was indebted to the bank in the sum of vice and scheme to evade the statute. $3,500, and proposed to the bank that it accept his wife's note in lieu of his. This proposition was accepted by the bank, and Tierney brought to it a note signed by his wife for $3,500, and also checks drawn by her upon the bank for the proceeds of the fund when it should be placed to her credit. The notes and checks were delivered to the bank, the note discounted, and the proceeds, less the discount, placed to the credit of Mrs. Tierney on the books of the bank. Thereupon the checks she had drawn on her account payable to the bank were applied to the payment of the note of her husband, and they were delivered to him. Under these facts it was held that the wife in assuming the debts of the husband became in effect a surety and under the statute was not liable. The case of Farmers' Bank of Wickliffe v. Beck (decided January 12, 1909) 114 S. W. 1189, was a suit to subject to the payment of a note signed by Mrs. Beck and her husband insurance money to which she was entitled. It appeared from the evidence that she signed the note as surety for her husband, and that he alone received the proceeds; that, although her name appeared above that of her husband, it was so written at his request and for his accommodation; and that the cashier of the bank who took the note knew that the husband was the only person to be benefited by its execution, and the proceeds of the note when discounted in the bank were placed to the credit of the husband and checked out by him. The court said: "The arrangement of the names on the note was a mere device to avoid the statute and released the wife." In Hart v. Bank of Russellville, 105 S. W. 934, 32 Ky. Law Rep. 338, in which a married woman defended a suit brought against her upon a note upon the ground that she was only the surety of her husband, the facts were that the husband, desiring to borrow $500, prepared a note for that amount, to which he procured his wife's signature above his own, and this note he forwarded by mail with a letter to the bank requesting that it be discounted. It was promptly discounted and its proceeds placed to the credit of the husband upon the books of the bank, or held subject to his order and applied to the payment of a draft drawn by him upon the bank in which the deposit was made. The wife received no part of the proceeds of the note, ali of it being checked out by the husband, who testified that the note was executed for his benefit, and that he received the proceeds. Nor was there any evidence offered in behalf of the bank. In holding under the facts that the wife was only the surety in the note, the court said: "In transactions of this kind the courts must look to the substance, and whatever the parties themselves may designate or name the undertaking of the wife, if in fact it be an attempted assumption by her of the debt of another, she must be held not liable unless she binds herself in the statutory way. Any other course will speedily result in a nullification of the statute." In Planters' Bank & Trust Company v. Major, 25 Ky. Law Rep. 702, 76 S. W. 331, suit was brought by the bank against Kittie L. Major and her husband, Newt. S. Major, to recover on two notes, one for $1,000 and the other for In all the cases written by this court re$1,500. The wife pleaded that she was the leasing the wife from liability, it will be surety of her husband. It appears from the found that the facts showed that the obtenfacts stated in the opinion that, when the tion of the signature of the wife as principal $1,500 note was negotiated to the bank, the was a scheme or device to evade the statute, husband's account was over $300 overdrawn, or that in fact the husband was the real prinand he had an overdue note there amount- cipal and sole beneficiary and received from ing to nearly $1,000, and the entire proceeds the lender the money. We know of no case of the note were used to pay off the old in which the wife has been relieved of her note, or placed to his credit in the bank, obligation to pay a debt voluntarily conand checked out by him. When the $1,000 tracted by her, where the transaction was note was made, the husband's account with legitimate and the money paid to the wife, The argument is made for appellee that Tyler in delivering the note to Middleton and in receiving the check was not acting as agent of his wife; but this is not sound. When Mrs. Tyler signed her name to the note and gave it to her husband, she constituted him her agent, and authorized him to act for her, and this she had the legal right to do. The transaction speaks for itself, and shows on its face that Tyler in delivering it to Middleton was acting as the agent of his wife, and, as her name was signed to it first, she was evade the statute for the benefit of the lender | said and did." To the same effect is Deering of the creditor of the husband. Nor is it & Co. v. Veal, 78 S. W. 886, 25 Ky. Law Rep. necessary that the wife should herself in per- 1809. son make the application for the loan, or that the money should be paid directly to her, or the check be drawn in her name alone and handed to her. On the contrary, it has been ruled that the wife as principal in the note may constitute the husband her agent, and if he delivers the note signed by her to the payee, and the check for the proceeds is made payable to the wife, or the money is paid to her, or the amount of the check placed to her credit, and the transaction in other respects free from a purpose to evade the statute, the wife will not be allowed to defeat the pay-apparently and presumptively principal. ment of the debt upon the ground that she was merely the surety, although as a matter of fact she may not have received the use or benefit of any part of the money. In Tompkins v. Triplett, 110 Ky. 824, 62 S. W. 1021, 96 Am. St. Rep. 472, a case in all substantial particulars identical with the one we are considering, the facts were these: Triplett applied to Tompkins for the loan of $250. He refused to loan it to him, but told him he would loan it to his wife. Thereupon Triplett procured a note with his wife's signature first and his second thereon, and delivered it to Tompkins. In holding the wife liable, the court said: "In this case Tompkins refused to loan the husband the money because he was insolvent, but was willing to loan it to his wife, which he did. After Tompkins' re fusal to loan the money to him, he brought the note to him purporting to have been first signed by the wife, and then by himself. The note imported that the wife was the principal, and Tompkins believed that she was, and loaned his money upon the faith that she was the principal in the note. The court knows, and Tompkins presumably knew, that the usual way of signing obligations by principal and surety is for the principal to sign his name first on the note. To present a note as signed as in this case to any one, he would at once conclude that the person whose name appeared to have been first signed to it was principal. Mrs. Triplett made her husband her agent to deliver the note to Tompkins and receive the money. She was bound by the representations he made as her agent. The testimony of Tompkins is uncontradicted that he gave the credit to the wife, and the note was delivered to him with the representation that she was the principal in the note. A married woman is authorized under the present law to contract as a feme sole in the matter of borrowing money, and her husband can act as her agent in doing so. When the wife delivered the husband the note, she made him her agent to deliver it and receive the money on it. When the husband represented that she was the principal on the note, he was acting within the apparent scope of his authority, and she is bound by what he We also think it was competent for Mrs. Tyler as a witness to state that she did not receive any part of the proceeds of the note. The fact that Mr. Tyler was dead did not under the Code exclude her from testifying to any fact that she might have testified to if Tyler had been living; but it was not competent for Middleton to relate conversations or transactions with Tyler, who in this matter was acting as the agent of his wife; as, when the transaction in controversy is had with an agent, a party cannot testify concerning it if the agent be dead when the testimony is offered to be given. Harpending's Ex'rs v. Daniel, 80 Ky. 449; Breckinridge v. McRoberts, 47 S. W. 454, 20 Ky. Law Rep. 699; Maxey v. Bethel, 64 S. W. 746, 23 Ky. Law Rep. 1085; Mutual Life Ins. Co. v. O'Neil, 116 Ky. 742, 76 S. W. 839. But as to any pertinent material fact that Middleton knew independent of what occurred between himself and Tyler he was qualified to testify concerning; as, for instance, that Tyler was solvent, and that he knew a married woman could not become the surety of another. And so it was admissible to show by any person who was present what took place between Middleton and Tyler-who was the agent of his wife-in respect to the execution of the note. Upon a return of the case, if the evidence is substantially the same as on the trial from which this appeal is prosecuted, the court should direct the jury to return a verdict for Middleton. Wherefore, the whole court sitting, the judgment is reversed. with directions for a new trial in conformity with this opinion. WATHEN, MUELLER & CO. v. COMMON- (Court of Appeals of Kentucky. Jan. 26, 1909.) It is reversible error for the trial judge in a criminal prosecution to refuse to vacate the bench, where accused by proper affidavits shows that he has good reasons, supported by facts, to fair and impartial trial. believe that the judge will not afford him a [Ed. Note. For other cases, see Judges, Cent. Dig. § 228; Dec. Dig. § 51.*] For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 2. JUDGES (§ 51*)-DISQUALIFICATION-PREJ- | were called for trial, or any steps taken, apUDICE-AFFIDAVITS. In a prosecution under the liquor laws, affidavits seeking to have the regular judge vacate the bench showed both by statements of the judge and his previous conduct that he was a strong opponent of the whisky traffic, that he had promised to use the machinery of his court to keep a certain town dry if local option prevailed there, and if any doubt arose he would solve it in favor of the commonwealth, and that it would not be his fault if parties charged with violating such law went unwhipped of justice. The affidavits further charged that the judge was personally hostile to accused and gave facts showing such hostility. Held, that the affidavits were sufficient to require the judge to vacate the bench, and the fact that he controverted the matter stated therein was ineffectual, as the statements of the affidavits must be taken as true in passing upon the right of accused to have the regular judge vacate the bench. [Ed. Note.-For other cases, see Judges, Cent. Dig. 88 227-229; Dec. Dig. § 51.*] 3. INTOXICATING LIQUORS (§ 164*)-OFFENSES -UNAUTHORIZED SALES. Where a sale of a barrel of whisky was made to a person who had formed a club to buy the barrel, with no intention by the seller or his agents of having any part in the distribution of the whisky among the subscribers for it, and the division was made on the seller's premises without his knowledge or consent, the seller was not guilty of selling whisky by retail, though one of his employés outside of the scope of his employment, and as an accommodation to the purchaser and subscribers, took the bung out of the barrel and furnished the purchaser with a rubber hose and a gallon measure to en able him to make the division. [Ed. Note. For other cases, see Intoxicating Liquors, Dec. Dig. § 164.*] 4. INTOXICATING LIQUORS (§ 164*)-OFFENSES -UNAUTHORIZED SALES. Where a sale of a barrel of whisky, made to a person who had formed a club to buy, is simply a scheme to enable the seller to deliver to purchasers whisky in less quantities than the law allowed him to sell, he is guilty of unlaw fully selling liquors in such forbidden quantities. pellants filed in the clerk's office an affidavit and an amended affidavit, seeking to have the regular judge vacate the bench. The judge held the affidavits insufficient, and refused to vacate the bench, and proceeded to call the cases for trial, whereupon appellants waived a jury and submitted the law and facts in two test cases to the court. The waiver was made upon the express agreement between the parties with the consent and concurrence of the court that the waiver of the jury was in no wise to prejudice the rights of appellants, nor was such waiver to be considered as a waiver of the objections of appellants to the presiding judge sitting on the trial of the case or taking or exercising any jurisdiction in the case. The main question to be determined on this appeal is whether the court erred in refusing to vacate the bench upon the filing of the affidavits of appellants, by which they sought to have him vacate the bench. The original and amended affidavits filed by appellants for the purpose of having the judge of the lower court vacate the bench are very long, and for that reason we refrain from copying them. It would be tedious and without profit to any one to give a full synopsis of all the facts and points made in the affidavits. We will therefore only state the sub stance of a few of the salient reasons stated why the judge should have refused to try the cases. It is stated that in the month of March, 1907, there was an election held to I determine whether or not local option should prevail in the city of Lebanon, and that the judge of the court, although a resident of another county, made divers public speeches during the canvass in Lebanon in the public hall, and used and uttered violent and bitter language against persons engaged in the business of selling whisky, in which speeches he used the following language: "If local option Appeal from Circuit Court, Marion County. "Not to be officially reported." was voted by a majority of the people of Wathen, Mueller & Co. were convicted of Lebanon, that with his juries and the machinery of his court he would see that the unlawfully selling and retailing quantities of whisky of less than five gallons, and ap-ried in that city, and at the first court that town was kept dry." Local option was carpeal. Reversed and remanded. [Ed. Note.-For other cases, see Intoxicating Liquors, Dec. Dig. § 164.*] Samuel Avritt, Lafe S. Pence, and Lindsay & Edelen, for appellants. Jas. Breathitt, Atty. Gen., Tom B. McGregor and Theo. B. Blakey, Asst. Attys. Gen., W. W. Spalding, and R. L. Durham, for the Commonwealth. NUNN, J. Appellants are registered distillers engaged in the manufacture of whisky in Marion county; their distillery being located outside of the limits of the city of Lebanon and not in local option territory. They were indicted at the June term, 1908, of the Marion circuit court in several cases, charged with the offense of retailing whisky in less quantities then five gallons without license to do so. Before any of the cases convened thereafter the judge appointed three jury commissioners who were ardent local option men, and, although the citizens and voters of that county were about equally divided on the question, all the names, consisting of a hundred or more, drawn from the jury wheel after the election for the purpose of impaneling petit and grand juries were ardent advocates of local option. It was charged in the affidavits that the judge entertained such prejudice and bias on the subject of whisky traffic as to disqualify him from presiding over the trial of any one charged with a violation of the laws regulating such traffic, and that he said during the trial of a case in an adjoining county, just previous to the time of the filing of the affi For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes |