boro by H. Weinstein & Bro. against Joe Baum for sums aggregating $165.43, and attachments were sued out, which, on February 11, 1901, were placed in the hands of the defendant, J. C. Turner, deputy chief of police of Middlesboro, and he, in her absence from her place of residence, procured some neighbor children to open the outer door, and proceeded to seize all her household goods, took down her bedstead and cook stove, and commenced to remove same from her possession over her objection after he was warned that the property that he was taking was exempt from execution and belonged to her; that all of the articles taken were then being used by her as a housekeeper and for no other purpose and were of value to her $250; that she offered to file her petition in the two cases in the police court claiming said property as exempt, but the court refused to allow her to appear and defend, holding that she had no standing in court; and no further action was taken in the cases, and that they were still pending, undetermined. She prayed judgment for $5,000 damages.

The ground of the court's ruling in sustaining the demurrer appears to have been that the plaintiff did not show that the levy had been discharged by the court before which the attachments were returned. In support of the ruling Nolle v. Thompson, 60 Ky., 120 (3 Met. ), is relied on. In that case it was held that no action will lie on an attachment bond or for malicious suing out an attachment until the attachment is discharged, and such final disposition of the attachment must be alleged. But this is not an action on an attachment bond, or for maliciously suing out an attachment. If the officer had seized the property under a specific attachment, directing him to take it, then this case would apply. But the writ under which the defendant acted being a general attachment, did not authorize him to take any property that was exempt from execution; and in so far as he went beyond the command of the writ his process was no protection to him, and he was a trespasser. Being a trespasser he was liable to immediate action, as much as if he had acted without any process at all.

When the question is whether the attachment was wrongfully sued out, the attachment defendant or any one claiming under him must, to establish the affirmative, show that the attachment has been discharged in the suit in which it was issued. But here the question is not as to the wrongful suing out of the attachment. The only question is, did the sheriff exceed the authority which his writ conferred upon him? The authorities are uniform that if the officer makes a levy which is not authorized by his process he may be sued as a trespasser by the person aggrieved. (Freeman on Executions, section 272; 12 Amer. & Eng. Ency. of Law, 2d edition, 249-251.) By section 34, subsection 4 of the Civil Code, it is provided: "If a husband desert his wife she may bring or defend for him any action which he might bring or defend, and shall have the powers and rights with reference thereto which he would have had but for such desertion."

This authorized the wife to bring the action for herself and her husband, who, it was alleged, had deserted her. They were housekeepers when he left. She remained in the house after he deserted her, continuing to keep house, and the question to be determined is, did the property which was exempt before the husband deserted her become subject to his debts thereafter? The property was his; he might dispose of it as he saw fit, and do

as he pleased with the proceeds up to the time of the levy of the attachment as far as appears. The petition does not show a severance of the domestic relation; however protracted the abandonment may have been, the parties constituted "a family" in law.

The statute creating exemptions of personal property from seizure for debts (section 1697, Kentucky Statutes), provides that certain property "of persons with a family resident in this Commonwealth shall be exempt from execution, attachment, etc." Unlike the statute concerning the homestead exemption, the debtor is not required to be "a housekeeper." It is enough in this case if he have "a family resident in this Commonwealth." It does not appear to be material where he resides. It is to be noted that these exemptions are in no instance allowed to a person who has no family or had none. The protection of the family as such from the misfortune of debt that can not be met was the prime consideration of the legislature. This is further evidenced by the fact that after the debtor's death the same exemptions, substantially, continue for the benefit "of his family." (Section 1708, Kentucky Statutes.) This last section shows, too, that the widow alone may constitute the family. The purpose of the statute is a humane one. And it is wise. It will be given, always, a liberal interpretation to effectuate its beneficent intendment.

The title and the legal custody and control of movable chattels must be lodged conveniently for their easy and safe disposal and transfer. So they are, in the case of exempted or personal property, reposed in "the head of the family," generally the husband and father. He may sell them, and pass a good title. Notwithstanding this, the fact that the welfare of the family and its rights to possess and enjoy this property to the exclusion of creditors is the great object of the statute must be borne in mind in construing it in a contest between "creditors" and the "family." True, the property may be the husband's, yet the wife and the infant children have a qualified use in it, and, therefore, the right to hold it as against an execution or attachment creditor. (Bonnel v. Dunn, 29 N. J. L., 435; Regan v. Zeeb, 28 Ohio St., 483; Steele v. Leonori, &c., 28 Mo. App., 675.) Under subsection 4, section 34, Civil Code, supra, it was competent for the wife to institute and maintain on behalf of her absent husband a suit necessary to protect the exempt property from seizure for his debts. Or, if the officer or creditor have already disposed of the property, she may maintain the suit to recover its value, and the damages for its detention. It would be a mockery to confer by statute the right of enjoyment of property, and yet for the courts to deny relief when the right has been infringed. As said by Chief Justice Lewis in Wilson v. Wilson, 101 Ky., 731 (19 Ky. Law Rep., 925), in construing this same section under somewhat similar circumstances: "Any other interpretation or application would be a sacrifice of the substance for a shadow. And not to allow the exemption in question would be a denial of the benefit of the statute in a case plainly within its scope and purpose, and detrimental to a class of persons deserving its protection and intended to be protected."

That a deserted wife is "a family" under an exemption statute was held in Berry v. Hanks, 28 Ill. App., 51. In so far as the petition sought a recovery against Turner's sureties on his official bond it failed to state a

cause of action. It did not show that they had signed the bond, or that it. had been accepted and approved by the town council.

Wherefore, the judgment is affirmed as to all of the appellees except J. C. Turner. As to him, it is reversed and cause remanded for further proceed~ ings consistent herewith.

COMMONWEALTH v. ROARK.

(Filed October 9, 1903.)

Bail bond-Liability of sureties-Waiver-Estoppel-Where the sureties on the bail bond of one charged with a felony executed a power of attorney authorizing one of them to sign their names to the bail bond, except that one. of the sureties instead of signing the power of attorney himself verbally directed his son to sign his name, the attorney in fact being then present, the fact that the surety whose name was signed by another was released from liability by reason of that act does not release the remaining sureties, in the absence of knowledge of the circumstances on the part of the officer taking the bond, as the knowledge of the agent to sign the bond is imputed to the sureties whom he represented, and amounts to a waiver of any informality in the execution of the bond by the co-surety and to an estoppel to. deny the validity of his signature.

C. J. Pratt, M. R. Todd, Nat A. Porter and W. B. Gaines for appellant. W. C. Goad for appellees.

Appeal from Allen, Circuit Court.

Opinion of the court by Judge O'Rear.

John Roark being in custody before the county judge of Allen county, charged with a felony, was admitted to bail by that magistrate for his appearance before the Allen Circuit Court to answer any indictment that might be found against him growing out of the charge.

'Appellee, W. B. Roark, and others undertook, as his bail in a bond executed before the county judge, that he would so appear. But he defaulted. In a suit upon the forfeited bail bond one of the sureties, M. G. Brown, was discharged because it was conclusively shown that he did not in person sign. the bond, or by a writing signed by him authorize another to sign his name. to it. (Section 482, Kentucky Statutes; Billington v. Commonwealth, 79. Ky., 400.) The other answering sureties, appellees, W. B. Roark and J. M. Braswell, claim that they were released because Brown was not bound. The circuit court discharged them. The facts are, so far as necessary to understand the point to be decided, that W. B. Roark was, by a written power of attorney, apparently signed by all the other sureties, and in fact so signed, except by Brown, authorized as such attorney in fact to sign the names of the sureties to the bail bond. W. B. Roark was present when M. G. Brown agreed to sign the bond as a surety, but instead of signing his name to the paper, the power of attorney, he requested his son, who was present, to sign it for him, which was done. This was known to W. B. Roark. None of the sureties, except W. B. Roark, appear to have been present when the bond was executed before the county judge. It was not shown that the county judge knew that M. G. Brown had not in person signed his name.

to the power of attorney. Now, can it be that W. B. Roark and the other sureties, whom he was representing as their agent in that matter, are released from liability because Brown was not bound? There is a line of cases decided by this court, notably Commonwealth v. Magoffin, 15 Ky. Law Rep., 775; Wilson, Rec'r v. Linville, 96 Ky., 50 (16 Ky. Law Rep., 340); Commonwealth v. Yarbrough, 84 Ky., 496, and Commonwealth v Belt, 21 Ky. Law Rep., 339, which go to the extent that where the county judge, or other official representing the Commonwealth, knowingly permits an incomplete bond to be accepted, as where some of the sureties' names were signed by others without written authority from such obligors, none of the sureties will be bound. And this, too, notwithstanding that all the sureties were present and saw the bond executed as it was, and notwithstanding that in law it is competent for a surety to waive the execution of the bond by one who had been named therein as his cosurety. In all of those cases the officer representing the Commonwealth knew that some of the sureties named in the bond had not signed it; or knew that some whose names were signed by others had not written authority to do so, at least knew that no such authority was exhibited or filed. Nothing appears in those cases to show that the sureties signing intended to waive the due execution of the bond by the others named in it, or that they were aware that the official had not fully complied with the law in requiring the due execution of the bond. From these facts the court argued that the other sureties had a right to presume that the official taking the bond had proper assurance that those signing it for others had legal authority to do so so as to bind them. None of these cases hold, of course, that any one can presume anything to the contrary of his own actual knowledge. But this case goes beyond anything in any of those cited. The sureties here, excepting Brown, had by a valid paper appointed another to act in their stead and for them in this transaction.

Under familiar and salutory principles of the law of agency, when one elects to act by an agent, the knowledge of the latter acquired, or in mind, in that transaction is conclusively imputed to such principal. Otherwise, it would be safer to the principal to always act by agent, for the agent's guilty knowledge, perhaps the scienter of an action based on the contract made by him, would not affect the principal, though he might profit by the agent's act. (Trimble v. Ward, 97 Ky., 748, 17 Ky. Law Rep, 508.)

This matter is well stated by Lord Brougham in Kennedy v. Green, 3 Myl. & K., 699, who says that the reason of this rule is that the "policy and safety of the public forbid a person to deny knowledge while he is so dealing as to keep himself ignorant, * * and yet all the while let his agent know, and himself perhaps profit by that knowledge."

*

W. B. Roark knew exactly how the power of attorney was executed by Brown; the county judge did not know. W. B. Roark appears to have concealed from the county judge the truth as to how the paper was executedor, what amounts to the same thing, had presented it as genuine, when he knew it was not. His act being for himself and his co-sureties, was equivalent to a representation by each of them that the paper was the genuine signature of Brown; or at least they were willing to waive his executing the bond otherwise. They could have waived Brown's signature altogether. They can estop themselves, too, from denying that his signature to the power of attorney was genuine.

When one surety says to the official taking the bond: "I know all the facts relating to the signing of the power of attorney by my proposed co-surety; I assure you that he has signed the power of attorney, and request you to accept the bond under that signature of his, and of my own made with full knowledge of the circumstances, and thereupon to release the prisoner,' such surety has waived any informality in the execution of the bond by his cosurety. It is also, if acted upon a good estoppel against his afterward denying the validity of his cosurety's signature. The action of W. B. Roark was tantamount to such assurance.

The judgment is reversed and cause remanded for a new trial under proceedings consistent herewith.

The whole court sitting, except Judge Paynter.

Chief Justice Burnam dissents.

STRUBBE v. LEWIS, &c.

(Filed October 9, 1903-Not to be reported.)

1. Written contract-Parol evidence of consideration-Under the provisions. of section 470 of the Kentucky Statutes a consideration not expressed in a written contract may be proved by parol evidence.

2. Same-Where a written contract authorized a person to cut and remove. timber from the lands belonging to another located on a certain river in a designated county, parol evidence was competent to identify the lands desig-. nated in the writing.

3. Limitation-In an action to recover sums expended in cutting and hauling timber from lands which were afterwards found to be the property of persons other than the vendor of the timber, in the absence of any charge that the vendor of the timber deceived the purchaser or that he entered into the contract for the sale of the timber by mistake, believing that he had title to the lands, it will be assumed that the action was based upon the im-. plied warranty in the contract that the vendor had title to the timber sold, hence the fifteen-year statute applies, and not the seven-year statute with reference to fraud.

W. A. Morrow for appellant.

G. S. Shadoan, T. Z. Morrow, Jr., and Edwin P. Morrow for appellees. Appeal from Pulaski Circuit Court.

Opinion of the court by Judge O'Rear.

Plaintiffs (appellees) declared upon a written contract, by which it was alleged that appellant had contracted to sell to them certain timber upon a certain-described boundary of land for a certain-named consideration; that acting under such contract they had entered within the boundary, and had cut about 500 logs, when others interfered and took the timber from them, In suits at law brought by appellees to test the title to the timber judgments had been rendered against appellees. They claimed that they had expended 406.50 in cutting and hauling the timber, and were, therefore, damaged to that extent by reason of the failure of appellant's title thereto. Upon the trial this contract was introduced as the one called for by the above pleadings:

"G. M Nevels: You are authorized to cut and remove timber from the.