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LOUISVILLE UNDERWRITERS, Appts., it is undoubtedly a condition precedent, and it

is put in issue by the general denial. Albert O. DURLAND et al.

Craig v. U. 8. Ins. Co. supra; Murgatroyd

v. Crawford, 2 Yates, 423; State M. F. Ins. Co. (......Ind........)

V. Arthur, supra; Home Ins. Co. of N. Y. v.

Duke, 43 Ind. 420; Phænix Ins. Co. v. Benton, 1. The violation by the insured of war. 87 Ind. 137. ranties or exceptions to the insurer's lia- A warranty is to be construed fairly, like any bility which are contained in the policy need not other contract, and its proper and legitimate be negatived in the complaint in a suit on a ma- effect given to it. rine insurance policy. If the loss is within a warranty or an exception, it is a matter of defense to L. Ins. S 141, 142; O'Neil v. Buffalo F. In8.

Wood, F. Ins. pp. 127, 128; Angell, F. and be set up affirmatively by defendant.

Co. 3 N. Y. 122; Wineland v. Security Ins. Co. 2. Where the insurer of a vessel as- 53 Md. 284; Foot v. Ætna L. Ins. Co. 61 N. Y.

sumes by express covenant all risk of 575; Dright v. Germania L. Ins. Co. 4 Cent. damages thereto by fires, with the one exception Rep. 529, 103 N. Y. 346; Home Ins. Co. of N. of those caused by explosion of boilers, a subse- | Y. v. Duke, 43 Ind. 420; Phænir Ins. Co. v. quent clause in the policy in which the insured warrants in general terms that the insurer shall Benton, 87 Ind. 137. be free from any claims for loss or damage occa

The consequences are generally so terrific sioned, inter alia, “ by the collapsing of flues" wil where the boilers burst and permit the fire to not relieve the insurer from liability for loss by escape and destroy the boat that the courts are

fire occasioned by the collapsing of a flue. not inclined to restrict the operation of clauses 8. Where the defendant in a suit on an of the kind, and especially where they are warinsurance policy sets up a special de- ranties of the assured, and conditions precedent fense, and offers evidence to support it after to his recovery. plaintiff has shown his loss and the cause that oc- United Life, F. & M. Ins. Co.v. Foote, 22 Ohio casioned it and rested, plaintiff may rebut by St. 340; St. John v. Am. Mut. F. & M. Ins. offering affirmative evidence to meet that intro- | Co. 1 Duer, 379, 11 N. Y. 523; Strong v. duced in support of the special defense.

Mut. Ins. Co. 31 N. Y. 103; Marcy v. Mer.

chants Mut. Ins. Co. 19 La. Ann. 391; Hayward (March 1, 1890.)

v. Liverpool & L. F. Ins. Co. 7 Bosw. 389;

Montgomery v. Firemen's Ins. Co. 16 B. Mon. of the Superior Court for Vanderburgh Duer, 461; Roe v. Columbus Ins. Co. 17 Mo.

. County in favor of plaintiffs in an action upon | 304; Tanneret v. Merchants Mut. Ins. Co. 34 a policy of marine insurance issued on the La. Ann. 249; Stanley v. Western Ins. Co. L. steamer La Mascotte, which was wholly de- R. 3 Exch. 73. stroyed by fire during the life of the policy. The insurer undertakes, for a comparatively Afirmed.

small premium, to guarantee the insured against The case sufficiently appears in the opinion. loss or damage, upon the exact terms and con

Messrs. Iglehart & Taylor and T. D. ditions agreed on, and upon no other. The Lincoln, for appellants:

party called upon to pay in case of loss may The warranty is in this case restrictive, and iherefore justly insist upon the fulfillment of the plaintiff must aver and sbow that his loss these terms; and if the plaintiffs can now bring is free from it. He must therefore allege and themselves fairly within the conditions of the prove that the loss by fire was not caused by policy, as they insist they can, they are entitled the bursting of the boiler or the collapsing of a to recover for the loss; but if they cannot, then flue, or he has shown no loss within the terms they must admit they cannot recover, bowever of the policy:

well-meaning and upright, and however conCraig v. U. S. Ing. Co. Pet. C. C. 410; Mur-fident in their view of the terms and conditions gatroyd v. Crauford, 2 Yates, 429; Cory v. of the policy. Burr, L. R. 8 App. Cas. 393; Porcell v. Ilyde, Glendale Woolen Mfg. Co. v. Protection Ins. 5 El. & Bl. 610; Kleinuort v. Shepard, 1 El. & Co. 21 Conn. 31; Little v. Eureka F. & M. El. 453; Neilson v. Commercial Mut. Ins. Co. Ins. Co. 38 Ohio St. 117. 3 Duer, 462: Cossman v. West, L. R. 13 App. The warranty which freed the defendant Cas. 180; Marcy V. Merchants Mut. Ins. Co. 19 from damage of every character resulting from La. Ann. 391.

the collapse of the flue was as much a part of Warranties of this character in policies of in. the policy as any other part of it, and restricted surance are to be fully complied with, and will and limited the risks and perils assumed therebe fairly construed.

in. There was no room for the rule that it Phanix Ins. Co. v. Benton, 87 Ind. 136; should be construed most strongly against the Nicoll v. Am. Ins. Co. 3 Wood. & M. 525; Bur: insurer. ritt v. Saratoga Co. M. Ins. Co. 5 Hill, 193; Foot v. Ætna Ins. Co. 61 N. Y. 575; Duight Trench v. Chenango Co. M. Ins. Co. 7 Hill, 124; v. Germania L. Ins. Co. 4 Cent. Rep. 529, 103 Angell, F. and L. Ins. § 142; Glendale Woolen N. Y. 347; Shore v. Wilson, 9 Clark & F. 565; Mfg. 10. v. Protection Ins. Co. 21 Conn. 19, 31; Wineland v. Security Ins. Co. 53 Md. 284: Witherell v. Maine Ins. Co. 49 Me. 200; State Glendale Woolen Mfg. Co. v. Protection Ins. Co. Mut. F. Ins. Co. v. Arthur, 30 Pa. 330; Lycom- 21 Conn. 31. ing F. Ins. Co. v. Mitchell, 48 Pa. 367.

Courts of last resort do not permit a palpable Where a warranty can be called a condition abuse of the order and practice of the trial

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courts evidently resorted to for the purpose of If it is to be held that fire, as one of the con. obtaining an unfair advantage of the opposite sequences of a collapse of the flue, is to be exparty.

cepted from the risk, then the two provisions Port of Clinton R. Co. v. Cleveland & T. R. would be necessarily repugnant to each other; Co. 13 Ohio St. 544.

and if there are two repugnant clauses in a But for abuse of discretion, courts of last policy, the one most favorable to the insured resort give full remedy.

is controlling Buskirk, Pr. pp. 347, 348; 1 Works, Pr. Whitmarsh v. Conway F. Ing. Co. 16 Gray, $ 884.

359; Citizens Ins. Co. v. McLaughlin, 53 Pa. The court permitted the plaintiff, against the 485; Niagara F. Ins. Co. v. DeGraff, 12 Mich. objection of the defendant, to offer expert tes. 124; Steinbach v. La Fayette F. 118. Co. 54 timony to show that the explosion of the flue, N. Y. 90; Barnum v. Merchants F. Ins. Co. under the circumstances, was not the explosion 97 N. Y. 188; Harper v. Albany Mut. Ins. Co. of the boiler. This testimony was not admissi- 17 N. Y. 194; Allen v. St. Louis Ins. Co. 85 ble.

N. Y. 473. Rogers, Expert Test.; Winans v. New York See also, as to construction of this policy, & E. R. Co. 62 U. S. 21 How. 88 (16 L. ed. 68); Paul v. Travelers Ins. Co. 3 L. R. A. 443, Whitaker v. Parker, 42 Iowa, 387; McFadden | 112 N. Y. 472; Clapp v. Massachusetts Bin. V. Murdock, 15 Week. Rep. 1079.

A880. 6 New Eng. Rep. 103, 146 Mass. 519. Messrs. G. V. Menzies, Alexander If an insurance company does not mean to Gilchrist and C. A. De Bruler, for ap- take all the risks of the perils insured against, pellees:

it should declare its intention in language It is neither necessary nor proper for a plain which does not admit of controversy. tiff in bis complaint to negative in express terms Phonix Ins. Co. v. Slaughter, 79 U. S. 12 the breach of a warranty by the plaintiff. Wall. 404 (20 L. ed. 444).

Rev. Stat. § 370; May, Ins. & 156; 1 Phillips, Of two possible constructions of the appliIns. p. 434; Phænix Ins. Co. v. Benton, 87 Ind. cation the one most favorable to the assured is 136; Continental L. Ins. Co. v. Kessler, 84 Ind. to be preferred. 315; Jglebart, Pr. and Pl. p. 538; 1 Estee, Pr. Pennsylvania Mut. L. Ins. Co. v. Wiler, 100 and Pl. 435; Nat. Ben. A880. v. Grauman, 5 Ind. 98; Northwestern Mut. L. Ins. Co. v. HazeWest. Rep. 848, 107 Ind. 288; Northwestern M. lett, 2 West. Rep. 690, 105 Ind. 212. L. Ins. Co. v. Hazelett, 2 West. Rep. 690, 105 Especially is this the case as to all excepInd. 212; Piedmont & A. Ins. Co. v. Ewing, 92 tions and reservations in the policy. U. S. 377 (23 L. ed. 610).

Orient Mut. Ins. Co. v. Wright, 68 U. 8. 1 The complaint need not negative prohibited | Wall. 456 (17 L. ed. 505). acts, or that plaintiff is within the excepted This construction obtains equally in case of risks.

a policy of marine insurance as of any other. May, Ins. & 597; Wood, F. Ins. pp. 824, 826; Allen v. St. Louis Ins. Co. 85 N. Y. 473; Lounsbury v. Protection Ins. Co. 8 Conn. 459; Palmer v. Warren Ins. Co. 1 Story, 300. Cornell v. Le Roy, 9 Wend. 163; Ilunt v. Hud- Whether the warrauty that the insurer is to 8on River Ins. Co. 2 Duer, 481; Troy F. Ins. Co. be free from loss on account of the collapse of 1. Carpenter, 4 Wis. 20.

a tlue is taken as a warranty, or as a limitation The extent of the insurance against fires is of the risk, the burdeo was upon the defendspecially defined, "except when caused by ex. ant to establish the breach, or that the loss plosion of boiler.” This is equivalent to say. came within the limitation. ing: “We ipsure against all fires except when Join Llancock Yut. L. Ins. Co. v. Daly, 65 caused by explosion of boiler.” If ibere be Ind. 6; Northrostcrn Mut. L. Ins. Co. v. llazemany things of the same class or kind, the ex. lett, 2 West. Rep. 650, 105 Ind. 212; Nat. Bon. pression of one or more of them implies the Asso, v. Grauman, 5 West. Rep. 848, 107 Ind. exclusion of all not expressed.

283; Bittinger v. Prorilence Washington Ins. 2 Parsons, Cont. 515, 516; Chitty, Cont. 90; Co, 24 Fed. Rep. 519; Guy v. Citizens Mut. Bacon, Abr.; 2 Rolle, Abr. 409; Rich v. Lord, Ins. (0, 30 Fed. Rep. 695; Union Ins. Co. v. 18 Pick. 325; Holmes v. Hubbard, 60 N. Y. Smith, 124 U. S. 405 (31 L. ed. 497). 183; Lyman v. Clark, 9 Mass. 235; McIntyre v. Williamson, 1 Edw. Ch. 34; Weed Seuing Berkshire, J., delivered the opinion of Mach. Co. v. Winchell, 5 West. Rep. 824, 107 the court: Ind. 263; Burns v. Singer Mfg. Co. 87 Ind. This was an action upon a marine insurance 541; Northwestern Mut, L. Ins. Co. v. Hazclett, policy. There was a trial below and a judg. 2 West. Rep. 690, 105 Ind, 216.

ment rendered for the appellees. In the case at bar the liability of the insurer The appellants assign two errors in this for fires is made the subject of a single clause, court: 1. The court erred in overruling the complete in itself and relating to fire alone. demurrer to the complaint. 2. The court It cannot be held that the general provisions in erred in overruling the motion for a new another part of the policy, relating generally trial. to a number of risks, can apply to tire.

We find no objection to the complaint. By Pennsylrania Mut. L. Ins. Co. v. Wiler, 100 the terms of the policy the appellants were Ind. 92; Boatman's F. & M. Ins. Co. v. Parker, liable for any loss occasioned to the steamer 23 Ohio St. 85; Commercial Ins. Co. v. Robin by fire, except when caused by explosion of 80n, 64 III. 267; Herrman v. Merchants Ins. Co. boiler, and except as limited by certain war81 N. Y. 184; Buchanan v. Exchange F. Ins. ranties contained in the policy. Co. 61 N. Y. 26; Bouman v. Pacific Ins. Co. The complaint alleges that the loss was 27 Mo. 152. See also Western Ins. Co. v. Crop- caused by fire which was not caused by the per, 32 Pa. 351.

explosion of any boiler, and alleges generally that the appellees had performed all the condi. | all unavoidable dangers of the waters which tions of the contract on their part.

the vessel was to navigate, and of fires, with Appellants contend that the complaint is bad one stipulated exception, wbich was exempbecause it fails to allege in specific terms that tion from fires caused by the explosion of the loss did not occur because of the breach of boilers. Further on in the instrument the apsome one or more of the warranties contained pellees obligated themselves in general terms in in the policy.

thenatureof warranties, u bich it is claimed mod. Among other things covered by the war. ified the express covenants of the appellants. ranties of the appellees is loss occasioned by The covenant of the appellants being an exthe bursting of boilers, by the collapsing of press covenant against loss occasioned by fire, flues. Perhaps we would better set out this except as therein limited, the question is preportion of the policy, so far as material to the sented: Did not the appellants thereby bequestion under consideration:

come bound to the appellees for all losses “Warranted by the assured that this Com- caused by fire while they were running and pany shall be free from all claims for loss or operating the said steamer upon said waters, damage arising from or caused by theft, bar- except fires caused by the explosion of boilers? ratry, robbery, civil commotion, war or piracy, We are inclined to the opinion that the appelor during any time said vessel shall be seized lants were so bound. The covenants of the and taken possession of or detained by any act warrauty were general in their character, while of the United States Government, or other the covenants of the appellants, and especially legally excluded causes, by damage that may as to loss occasioned by fire, were express and be done by the vessel bereby insured to any specific. other vessel or property, from any loss or dam. And again, the warranties are covenants on age occasioned by said vessel being improperly the part of the appellees and form no part of laden, by the bursting of boilers, by the col.the covenants of the appellants. The most that lapsing of Ques, by the explosion of gunpow. can be claimed for them is that, for any loss der, by the derangement or breaking of the coming within their terms, they operate to reengiue or machinery, or from consequences of lease and discharge the appellavis from the any character resulting from either of the fore responsibility to which its covenants bound it. going exceptions, unless the same be caused by Policies of insurance, like other contracts, unavoidable external violence.”

are to be reasonably construed. The contract We have the following Statute (S 370, Rev. of insurance should be liberally construed to Stat. 1881): "In pleading the performance of effectuate its purpose. The language of the a condition precedent in a contract, it sball be policy and of the interrogatories and provissuflicient to allege generally that the party ions of the application is carefully and deliberperformed all the conditions of the contract on ately pre-arranged by the insurer; in its prepahis part. If the allegation be denied, the facts ration the insured has no part. Whatever showing a performance must be proved on the there may be in the language so prepared by trial."

the insurer which has any tendency to defeat If the clauses. "by the bursting of boilers, by the main purpose of the contract should be the collapsing of fiues,” are conditions prece- strictly construed against the insurer. If there dent, then the foregoing Statute rendered it be any ambiguity in an interrogatory prounnecessary for the appellees to allege in their pounded to the applicant, or it be capable of complaint specifically the performance of those more than one answer, it should be construed conditions. Fairbanks v. Meyers, 98 Ind. 92; most strongly against the insurer and most Purdue v. Noffsinger, 15 Ind. 386.

favorably to the insured, in wbose favor all This Statute applies to insurance policies the doubt should be resolved. Phanix In8. Co. v. same as oiber contracts. Continental L. Ins. Pickel, supra; Pennsylvania Mut. L. Ins. Co. v. Co. v. Kessler, 84 Ind. 315; American Ins. Wiler, 100 Ind. 92; Boatman's F. & M. Ins. Co. v. Leonard, 80 Ind. 272; Ilome Ins. Co. Co. v. Parker, 23 Ohio St. 85. of N. Y. v. Duke, 43 Ind. 418; Phænix Ins. We quote the following, which seems to be Co. v. Pickel, 119 Ind. 155.

in point, from Wood on Fire Insurance, p. 259: If they amount to warranties, or are excep. "The court further laid down the rule that it tions (and they are given both names by the is the duty of an insurance company seeking to appellants), it was not necessary that their vio- limit the operation of its contract of insurance lation be negatived in the complaint. It is not by special provisions or exceptions, to make required of the plaintiff in an action on an in- such limitations in clear terms, and not leave surance policy, that he in his complaint neg- the insured in a condition to be misled. The ative warranties and exceptions stated in the insured may reasonably be held entitled to rely policy. If the loss is within a warranty or ex- on a construction favorable to himself, where ception, it is matter of defense which must be the terms will rationally permit it.” pleaded affirmatively by the defendant. Nat. It is also a well-settled rule or canon of conBen. A890. V. Grauman, 5 West. Rep. 848, struction applicable to all contracts, that such 107 Ind. 288; Piedmont & A. Ins." Co. v. construction will be applied as will give force Ering, 92 U. S. 377 (23 L. ed. 610); John Han- and effect to all parts of the contract, if it can cock Hut. L. Ins. Ço. v. Daly, 65 Ind. 6; North- be done without doing violence to the language western Mut. L. Ins. Co. v. Hazelett, 2 West. employed and the evident intention of the parRep. 690, 105 Ind. 212; Phænix Ins. Co. v. ties; and especially will this be done if such a Pickel, supra; May, Ins. § 183.

construction will carry into effect the evident In coming to a conclusion upon many of the intention of the parties. questions involved, it becomes necessary that When appellants undertook to stipulate, and we construe the policy. By its terms and con- did stipulate in that part of the policy in ques. ditions the appellants assumed in express terms | tion to which the appellees could only look for B recovery in case of loss, as to the limitation | "By the bursting of boilers, by the collapsing which should relieve the appellants from re- of /ves.” With the comma between the word sponsibility in case of loss by fire, it is fair 10"boilers" and the word "by” wbich follows the presume Wat ibey intended thereby to fix the bursting of a boiler and the collapsing of a flue exact and entire liability of the appellanis; if are named and recognized as independent and not, the inquiry arises, Why were not all of distinct things, as much so as is the explosion the limitations and exceptions then stated? of gunpowder," which immediately follows, Why were further modifications left to the with a comma between, independent and diswwranties exacted? We can imagine po suf tinct from the collapsing of a flue. Burns v. ficient reason, and are of the opinion, as stated Singer Mfg. Co. 87 Ind. 541; Weed Sewing in the language quoted from Wood, supra, Mach. Co. v. Winchell, 5 West. Rep. 824, 107 that the appellees "may reasonably be held en- Ind. 260; Northwestern Mut. L. Ins. Co. v. titled to rely on a construction favorable to Hazelett, Pennsylvania Mut. L. Ins. Co. v. Wiler himself (themselves) where the terms will ra- and Boatman's F. & M. Ins. Co. v. Parker, tiovally permit it."

supra; Commercial Ins. Co. v. Robinson, 64 The evident intention of the parties was that III. 265; Rich v. Lord, 18 Pick. 325; Lyman v. the appellants should be bound for all losses Clark, 9 Mass. 235. occasioned by tire, except from explosion of Putting the construction upon the policy boilers, wbile the steamer was under the con. which we have given to it, the court did not trol of the appellees and being pavigated upon err in refusing to give to the jury the in: the waters vamed in the policy. At least, it is structions asked for by the appellants; and our opinion that the appellees were entitled to wbile we are inclined to think that the evidence 80 understand and construe the policy, and of experienced steamboatmen was competent that the warranties relied upon referred to as to whether or not the collapsing of a flue other casualties than loss by fire.

was the explosion of a boiler, if the question The bursting of a boiler and the explosion was one about which there might be reason. of a boiler are one and the same thing; there able ground for controversy, we do not decide fore that part of the warranty quoted wbich re- anything upon the subject of expert testimony, fers to the bursting of a boiler is immaterial. as the ruling of the court did not prejudice the But ibe collapsing of a flue is not the explosion appellants. or the bursting of a boiler. The fluc is inside But the jury found that the fire which ocof and forms a part of the boiler, if a flue casioned the loss did not occur from the exploboiler, but it is not the boiler proper, and may sion of a boiler or the collapsing of a flue. and the boiler proper remain intact. Adopting the appellants' construction of the But the collapsing of a flue is not the explosion policy, and we are not prepared to say that the of a tlue, Webster defines "collapse” thus: findings of the jury in answer to the interroga“To fall together suddenly, as the two sides of a tories propounded to them, as well as their genbollow vessel; to close by falling or shrinking eral verdict, are not supported by evidence; and together; to shrink up, as a tube in a steam if so, the construction given by the appellant boiler collapses." He defines "explosion” as to the policy, if adopted, would not reverse follows: "The act of exploding; bursting with the case, in view of the well-settled rule of this a loud noise or detonating sound; a sudden in- court not to disturb the verdict of a jury where fuming with force and a loud report, as the there is evidence to support it, though in the explosion of gunpowder.” .“ The shattering opinion of the court the preponderance of eviof a boiler by a sudden and immense pressure dence is against the verdict. in distinction from rupture.”

Construing the policy as we do, the verdict The Century Dictionary, a recent and valu- of the jury is supported by abundant evidence, able lexicon of the English language, defines for if the fire emanated from any misfortune “collapse” thus: “To fall together or into an bappening to the boiler, that misfortune was irregular mass or flattened form through the the collapse of a flue and not the explosion of loss of firm connection or rigidity and support a boiler. of the parts, or loss of the contents, as a build- We do not think there is anything in the ing through the falling in of its sides or an in-point that the court treated the appellants unfaicd bladder from escape of the air contained fairly during the course of the trial. in it." It defines "explosion” as follows: “A It was sufficient for the appellees to show the sudden bursting or breaking up or in pieces loss and the cause that occasioned it, and if from an internal or other force; a blowing up the appellants claimed otherwise and desired or tearing apart, as the explosion of a steam to bring the case within the special defenses boiler.”

which they had pleaded, after the introduction From these definitions it will be seen that of the evidence on their part, the appellees these words have almost an opposite meaning. were entitled to rebut, and to introduce atfir.

When the parties bave put a construction mative evidence to meet the evidence introupon the language employed in the contract duced in support of the answers. for themselves, the court should not disregard We may also say that the introduction of that construction, The difference between the evidence, even out of its order, is a matter very collapse of a fue and the explosion of a boiler largely in the discretion of the court, and in is fully recognized in the policy. All parties such a case, before the court will interfere, agree ihat the bursting of a boiler and the ex: there must be an abuse of discretion shown. plosion of a boiler are one and the same thing. We find no error in the record for which the

The quotation heretofore made from the judgment ought to be reversed. warranties in the policy, and wbicb is an im- Judgment affirmed, with costs. portant consideration in the determination of Petition for rehearing withdrawn May 14, The questions involved, we will set out again: 1890.



GILKESON-SLOSS COMMISSION CO., sued out an order of attachment and caused Appt.,

tbe sheriff to execute the saine by levying on O.

the property assigned. The ground of the ato Jesse E. LONDON et al., S. W. Frye, In- tachment was, the defendants bad fraudulently terpleader.

disposed of their property, the fraud relied on

being the making of the assignment. They (....Ark.....)

made no defense to the action, but controvert

ed the ground of the attachment. Frye filed 1. The delivery by an assignor for ben- a complaint and claimed the property attached efit of creditors to his assignee of the deed of under the assignment. Tbe attachment was assignment and of the key to his storehouse, and discharged, and the claim of Frye was susthe failure of the assignor to go near, or exercise tained, and plaintiff appealed. any control over, the assigned goods thereafter, is a delivery of the possession thereof within the It did not authorize the assignee to take pos.

The deed of assignment was valid on its face. meaning of that term as used in $ 305, Mansf. session before the filing of an inventory and the Dig.

execution and approval of bis bond, as required 2. Such delivery of possession before the by law. But evidence was adduced on the assignee has filed an inventory and executed a bond will avoid the assignment, although made trial tending to prove that the assignors, conin accordance with a parol agreement between temporaneously with the execution of the deed, the parties entered into contemporaneously with agreed to deliver to the assignees the keys to the execution of the deed of assignment, which is the storehouses containing the property as valid on its face, that it was for the purpose of signed for the purpose of enabling him to mako enabling the assignee to prepare an inventory. his inventory; that, pursuant to this agreement,

the deed of assignment and one of the keys to (March 22, 1890.)

the Alma store were delivered to the assignee

at the same time, and, within a very short time the Circuit Court for Crawford County Jesse London retained the only other key to discharging its attachment of certain property the Alma store; and that be admitted that he alleged to have been assigned for benetit of did not go near the store or exercise any con. creditors. Reversed.

trol over the property after the delivery of the The facts sufficiently appear in the opinion. deed. Upon this evidence the appellant asked Messrs. O. P. Brown, L. P. Sandels and an instruction in the following words: “The U. M. & G. B. Rose, for appellant:

court instructs the jury that under the law the When the assignors, either in their deed of assignee is entitled to access to the property assignment, or by contemporaneous agreement, assigned for the purpose of making an inven. delivered possession of the assigned property to tory and bond; but he is not entitled to pos. the assignee, it vitiated the deed.

session until he has filed his inventory and Thatcher v. Franklin, 37 ark. 64; Falconer bond in the clerk's office. If upon the face of v. Hunt, 39 Ark. 68; Rice v. Frayser, 24 Fed. a deed of assignment the assignor directs or Rep. 460; Aaronson v. Deutsch, 24 Fed. Rep. authorizes the assignee to take possession of the 465; Burrill, Assignm. $ 501.

property assigned before he has filed his in. The delivery of the keys is delivery of pos- ventory and bond, this renders the deed fraudsession.

ulent and void as to creditors. And if the as. Aaronson v. Deutsch, 24 Fed. Rep. 465. signee or his agent, before the filing of the Mr. B. H. Tabor for appellees.

bond and inventory, by direction or with the

consent of the assignors, in consummation of Battle, J., delivered the opinion of the an agreement, oral or written, extraneous to the court:

deed, takes the keys of the storehouse and thus London Bros., a firm composed of Jesse and has possession of the property assigned, it ren. Jobn London, were engaged in the mercantile ders the deed fraudulent and void as to creditbusiness at Alma and Rudy, in Crawford ors, just as though such agreement was set County, in this State. On the 24th of Novem- forth in the face of the deed." ber, 1887, they assigned to S. W. Frye all their And the court refused to give it, but gave notes, accounts and otber evidences of indebt- the following: “The court instructs you that, edness, and all their goods, wares, mercban, under the law, the assignee is entitled to acdise and fixtures of every kind at Alma and cess to the property assigned for the purpose Rudy, for the benefit of their creditors. There- of making an inventory and bond; but he is upon the Gilkeson-Sloss Commission Company not entitled to possession until he has filed his commenced an action against the assignors, and inventory and bond in the clerk's oflice. If,

NOTE.- Assignment for benest of creditors ; statute , upon execution and delivery of the deed, and canof Arkansas construed.

not be defeated by an execution against the assignThe statute of Arkansas provides that before or coming to the hands of the officer-after such dethe assignee shall be entitled to the possession and livery and before filing of the schedule and bond. control of the assigned property, he shall file a full Clayton v. Jobnson, 36 Ark. 406. and complete inventory and execute a bond to the While it entitles him to "access" to the property State conditioned for a faithful performance of his for the purpose of making the inventory, it does duties according to law. Ark. Stat. 1884, chap. 8, not entitle him to the possession and control of the $ 305.

property until he gives bond and files the inven. Title to the assigned property vests in the assignee tory. lbid.

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