(1905) 183 N. Y. 53, 75 N. E. 963; Zambetti v. Garton (1908) 113 N. Y. Supp. 804.

Texas.-Patton v. Collier (1896) 90 Tex. 115, 37 S. W. 413.

In People v.. Whitney (Mich.) supra, the attorney, who was related to the judge, was the prosecuting attorney who filed the information, but the court said he was not a party to the suit within the meaning of the statute.

That counsel for plaintiff in a divorce suit is brother-in-law of the presiding judge does not disqualify the judge, if the counsel has no pecuniary interest in the judgment. Adams v. Adams (Ga.) supra. So it is no ground for a rehearing that a relationship existed between a judge of the appellate court and an attorney who instigated the cause in the lower court, where the record disclosed that other attorneys presented the case. Maclean v. Scripps (Mich.) supra. And in People v. Patrick (N. Y.) supra, it was held that there was no impropriety, so as to warrant a rehearing, where the judge who wrote the prevailing opinion was related to an assistant district attorney who appeared at one stage of the proceedings in the lower court.

It does not appear from the report in the case of Patrick v. Crowe (Colo.) supra, just what the statutory provision was, but the court, in disposing of the contention of prejudice because the brother of the judge was attorney in the case, says that, as such attorney, he might have an influence upon the determination of the case, may be admitted, and yet this influence might arise only from his skill in conducting the defense as an attorney, and be wholly proper. It was, however, suggested that, in the event of another trial, another judge be called in to try the case.

That the judge and one of the attorneys in the case married sisters does not bring them within the provision of a statute disqualifying the judge if he is related by affinity to a party to the controversy within the sixth degree. But the court ordered a new trial in the case, because a doubt existed as to the matter of burden of proof, and it was desirable to avoid any suspicion that the relationship influenced the determination of the case. Zambetti v. Garton (N. Y.) supra.

Some of the statutes provide for disqualification if the judge is interested in the determination of the case, and it may be argued that he is interested if his relative is attorney in the case, who will, in all probability, benefit by a favorable decision. But the courts have held that if the attorney is employed in such a way that his fee is not contingent on the result of the action, the judge cannot be said to be interested in the determination of the suit, within the meaning of the statute. Sjoberg v. Nordin (1880) 26 Minn. 501, 5 N. W. 677; State v. Ledbetter (1910) 111 Minn. 110, 126 N. W. 477.

In Sjoberg v. Nordin (Minn.) supra, the court says a pecuniary interest in the event of the action is the cause of disqualification intended to be raised by the statute, and not a mere bias resulting in partiality or

prejudice in favor of or against either of the parties.

And the court, in the case of State v. Ledbetter (Minn.) supra, held that the amendment of the statute so as to disqualify the judge so that he may be excluded "for bias," from acting as a judge, does not effect a change in the rule.

The real difficulty in the question arises when the judge will be required to fix the fee of a relative who is attorney in the case, or the attorney has been employed upon a contingent fee so that the pay of the relative depends upon his success in the litigation.

If the attorney for plaintiff in a divorce case applies to the court for allowance of a counsel fee, he becomes a party in interest within the meaning of the statute disqualifying the judge, when he is related to either of the parties, and therefore, if the attorney is related to the judge, the judge becomes disqualified. Brown v. Brown (1918) 103 Kan. 53, L.R.A.1918F, 1033, 172 Pac. 1005.

And in Cavanagh v. District Ct. (1913) 163 Iowa, 76, 144 N. W. 25, where the matter was only collaterally involved, it was stated that a statute disqualifying a judge from action in any case where he is related to either party within a certain degree prevents a probate judge from making an order directing the payment of a certain fee to counsel, whose associate was the son of the judge, such counsel having agreed with such associate to divide fees with him.

The majority of the cases hold that relationship to an attorney employed upon a contingent fee disqualifies the judge.

Arkansas.-Johnson v. State (1908) 87 Ark. 45, 18 L.R.A. (N.S.) 619, 112 S. W. 143, 15 Ann. Cas. 531.

California.-Howell v. Budd (1891) 91 Cal. 342, 27 Pac. 747.

Georgia.-Roberts v. Roberts (1902) 115 Ga. 259, 90 Am. St. Rep. 108, 41 S. E. 616; Shuford v. Shuford (1914) 141 Ga. 407, 81 S. E. 115.

Louisiana.

White v. McClanahan (1913) 133 La. 396, 47 L.R.A. (N.S.) 448, 63 So. 61.

Mississippi. Yazoo & M. Valley R. Co. v. Kirk (1912) 102 Miss. 41, 42 L.R.A. (N.S.) 1172, 58 So. 710, 834, Ann. Cas. 1914C, 968.

Oklahoma.-State ex rel. Mayo v. Pitchford (1914) 43 Okla. 105, 141 Pac. 433.

South Dakota.-Re Taber (1900) 13 $. D. 62, 82 N. W. 398.

In Re Taber (S. D.) supra, the court stated that the judge became disqualified when his son contracted to prosecute the claims of certain alleged heirs to property involved in the case for a contingent fee, as a basis for determining whether or not the fact rendered the judgment void or merely voidable.

Under a constitutional provision disqualifying a judge where either of the parties is connected with him by affinity or consanguinity, the judge is disqualified if his son is an attorney under an employment calling for a contingent fee. Yazoo & M. Valley R. Co. v. Kirk (Miss.) supra.

In White v. McClanahan (La.) supra, it was held that a statute declaring that one of the causes for which a judge shall be recused is his being related to one of the parties in a certain degree applies to a case where the son of the judge was one of the plaintiff's counsel, who were employed upon a purely contingent fee, the court stating that counsel so situated might, in effect, make themselves parties of record, by filing their contracts.

Similarly, in State ex rel. Mayo v. Pitchford (Okla.) supra, it was held that a statute disqualifying a judge when he is related to any party within a certain degree applies where one of the plaintiff's attorneys of record was the judge's son, and was prosecuting the suit under a contract for a contingent fee, the court pointing out that, under the statute providing for contingent fees, an attorney so acting has, at least, an equitable interest in his client's cause of action.

In Howell v. Budd (Cal.) supra, it was held that a judge was disqualified from hearing a proceeding to revoke letters of administration, the determination of which would be conclusive as to distribution, by virtue of a stat

ute disqualifying a judge from hearing a cause when he is related to either party within a certain degree, or is a party, or is interested, where attorneys in the cause were related to the judge within the specified degree, and were in effect equitable owners of a portion of the estate, since the administrator had contracted to convey a portion of the estate to them, conditional upon the outcome of the proceedings.

And by virtue of a constitutional provision disqualifying a judge related within a certain degree to a "party," relationship within such degree to an attorney employed by one of the parties upon a contingent fee is held to disqualify the judge, in Johnson v. State (Ark.) supra.

v.

Jones

So, it was held, in Vine (1900) 13 S. D. 54, 82 N. W. 82, under a statute requiring a county judge, when he is a party to or personally interested in any proceeding in any probate matter therein, or related to any person so interested within a specified degree, to certify to the circuit court such fact, that he must make such certificate when he is related, within the degree provided by statute, to an attorney who is prosecuting a cause on a contingent fee. Where, under a Code provision, a judge is prohibited from hearing a cause in which he was related to a party within a certain degree, without the consent of all the parties in interest, it was held in Roberts v. Roberts (1902) 115 Ga. 259, 90 Am. St. Rep. 108, 41 S. E. 616, that a judge was disqualified from hearing an application for alimony and counsel fees, since he was related to attorneys for the applicant within the specified degree, although certain attorneys' fees had been determined regardless of the outcome of the application. And the court said: "It is the pecuniary interest of the attorney in the result of the case which disqualifies the judge. If the applicant did not ask any allowance of counsel fees, of course, the fact that her counsel was related to the judge, no matter how closely, would not have the effect to disqualify the judge from presiding. The mo

ment the applicant asks for counsel fees, her counsel becomes pecuniarily interested in the result of the suit, and, so far as these fees are concerned, the counsel are as much parties to the case as if they were parties to the record."

That case was followed in Shuford v. Shuford (1914) 141 Ga. 407, 81 S. E. 115, holding that, under a statute disqualifying a judge related to either party within a certain degree, a judge may not sit in a claim case, where one of the counsel, employed upon a contingent fee, is related to the judge within the specified degree.

But there are cases holding under similar statutes, as in the reported case (NORWICH UNION F. INS. Co. v. STANDARD DRUG Co. ante, 1321), that the judge is not disqualified because his relative is employed as an attorney in the case upon a contingent fee. Hundley v. State (1904) 47 Fla. 172, 36 So. 362; Young v. Harris (1916) 146 Ga. 333, 91 S. E. 37; Allison v. Southern R. Co. (1901) 129 N. C. 336, 40 S. E. 91; Winston v. Masterson (1894) 87 Tex. 200, 27 S. W. 768; Missouri, K. & T. R. Co. v. Mitcham (1909) 57 Tex. Civ. App. 134, 121 S. W. 871.

The son-in-law of the trial judge, who is employed for a contingent fee, is not a party to the action within the meaning of a statute disqualifying for relationship to a party within the third degree, and the refusal of the judge to recognize disqualification in such case does not deprive the objecting party of his property without due process of law, nor does it deprive him of the equal protection of the laws. Missouri, K. & T. R. Co. v. Mitcham (Tex.) supra.

So, under a statute providing that a judge shall not preside over a cause in which he is interested, or is related to a "party" within such degree as to exclude him from jury service, it was held in Hundley v. State (Fla.) supra, that a judge so related to an attorney employed upon a contingent fee was not disqualified from hearing the

cause.

So, under a statute or constitutional provision disqualifying a judge from hearing a cause in which he is in

terested, or is related within a certain degree to a "party," relationship within such degree to an attorney employed upon a contingent fee is held in some cases not to disqualify the judge.

So, in Allison v. Southern R. Co. (1901) 129 N. C. 336, 40 S. E. 91, there is a dictum to the effect that a judge would not be disqualified to preside at a case in which his son was attorney, although he knows the latter is employed on a contingent fee.

But in Young v. Harris (1916) 146 Ga. 333, 91 S. E. 37, it was held, in an action by citizen taxpayers to enjoin a county from executing contracts for the building of a courthouse, that a judge was not disqualified because he was related to one of plaintiffs' counsel, who was to receive a certain fee in any event, and more if his clients were successful. The court distinguished Roberts v. Roberts (Ga.) supra, on the ground that there the attorney was interested in the res, while here he was not.

In Kirkland v. Kirkland (1916) 146 Ga. 347, 91 S. E. 119, a mortgage provided for attorney's fees of 10 per cent, if the claim were placed in the hands of an attorney for collection, and the claim was placed in the hands of an attorney for collection, under a special employment whereby he was to be paid a fee by the plaintiffs, not conditioned upon the collection of the fees specified in the mortgage. In a suit brought to enjoin the sale under the mortgage, it was held that the judge was not disqualified by relationship to such attorney.

Of course, if the statute disqualifies for relationship to the attorney, that is conclusive, and in People v. Ebey (1907) 6 Cal. App. 769, 93 Pac. 379, it was held that disqualification by relationship to an attorney for a defendant extends to arraignment of prisoners and entry of plea, under a statute disqualifying a judge to sit or act as such in any action or proceeding where he is related within a specified degree to any attorney of either party.

Dunbar v. Wallace (1907) 84 Ark. 231, 105 S. W. 257, merely held that mandamus did not lie to compel a judge to permit the filing of a suggestion of his disqualification to hear a case because the fee of an attorney related to him was contingent. The court says it is not proper nor right to call upon a judge to start an investigation into the fees of attorneys who may be kinsmen of his, in order to find out from such investigation whether there may be disqualification. But the court intimated that a different conclusion might have obtained had an allegation been filed that such attorney had a direct pecuniary interest in such matter of litigation.

Knickerbocker v. Worthing (1904) 138 Mich. 224, 101 N. W. 540, held that where the existence of a contract for a contingent fee by an attorney in the case who was related to the trial judge became known after the beginning of the trial, but the contract was abrogated, it was unnecessary to decide whether or not a disqualification existed within the meaning of the statute. H. P. F.

signers on back — makers.

2. Persons placing their names on the back of a negotiable note before its negotiation, at one time and as part of the same transaction, are joint makers.

may bind themselves by contract to contribute towards its payment.

Messrs. L. W. Perrin and L. A. Wittkowsky, for respondents:

Plaintiffs and defendant were comakers or cosureties of the ten notes, and defendant is liable to contribute.

Strasburger v. Myer Strasburger & Co. 167 App. Div. 198, 152 N. Y. Supp. 757; Sloan v. Gibbes, 56 S. C. 480, 76 Am. St. Rep. 559, 35 S. E. 408; Whitley, Bills, Notes, & Checks, 207-211; Russ v. Sadler, 197 Pa. 51, 46 Atl. 903; Wolf v. Hostetter, 182 Pa. 292, 37 Atl. 988; George v. Bacon, 138 App. Div. 208, 123 N. Y. Supp. 103; Weeks v. Parsons, 176 Mass. 570, 58 N. E. 157; Hagerthy v. Phillips, 83 Me. 336, 22 Atl. 223; Cook v. Brown, 62 Mich. 473, 4 Am. St. Rep. 870, 29 N. W. 46; Trego v. Cunningham, 267 Ill. 378, 108 N. E. 350; Re McCord, 174 Fed. 72; McCarty v. Roots, 21 How. 432, 16 L. ed. 162; Kelly v. Burroughs, 102 N. Y. 93, 6 N. E. 109; Egbert v. Hanson, 34 Misc. 596, 70 N. Y. Supp. 383; Easterly v. Barber, 66 N. Y. 433; Guild v. Butler, 127 Mass. 386; Cady v. Shepard, 12. Wis. 640; Witherow v. Slayback, 158 N. Y. 649, 70 Am. St. Rep. 507, 53 N. E. 681; Haddock, B. & Co. v. Haddock, 192 N. Y. 513, 19 L.R.A. (N.S.) 136, 85 N. E. 682; Noble v. Beeman-SpauldingWoodard Co. 65 Or. 93, 46 L.R.A. ·(N.S.) 162, 131 Pac. 1006; Owens v. Blackburn, 161 App. Div. 830, 146 N. Y. Supp. 969; Rindskopf v. Simmer, 88 Misc. 28, 150 N. Y. Supp. 73; Yore v. Yore, 240 Mo. 451, 144 S. W. 847; Chandler v. Brainard, 14 Pick. 285; Kimball v. Williams, 51 App. Div. 616, 65 N. Y. Supp. 69; Hardy v. Colby, 42 Me. 381; Mateer v. Cockrill, 18 Tex. Civ. App. 391, 45 S. W. 751; Wilks v. Vaughan, 73 Ark. 174, 83 S. W. 913; 11 A.L.R.-84.

Whitworth v. Howard, 7 Ky. L. Rep. 834; Sexton v. Sexton, 35 Ind. 88; Judd v. Small, 107 Ind. 398, 8 N. E. 284; Goodall v. Wentworth, 20 Me. 322; 9 Cyc. 798.

Gage, J., delivered the opinion of the court:

The plaintiffs and the defendant wrote their names in succession on the back of ten notes, and the question at issue is their relationship one to another thereabout. We shall refer to them as the signers, for "indorser" has a technical meaning.

The plaintiffs paid the notes. The defendant refuses to pay because his. name was last written on the note; and he now refuses to contribute, to which end this action was brought. The transaction was had before the enactment of the statute governing negotiable instruments. The master found the facts for the plaintiffs, but the law for the defendant. The circuit court concluded the law for the plaintiffs, having first adopted the master's conclusion of fact. The defendant has appealed by fourteen exceptions, but the controlling ones are directed to three points: (1) That as to each. other the signers are indorsers and not makers; (2) that the signers, even if makers, are yet indorsers betwixt themselves, and therefore not liable to contribute unless there was an agreement aforetime to do so; and (3) that there is no proof of any such agreement. The first postulate depends on the testimony and the law; the second is an issue of