a 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 dues." With the comma between the word sponsibility in case of loss by fire, it is fair to "boilers" and the word "by" which follows the presume that they intended thereby to fix the bursting of a boiler and the collapsing of a flue exact and entire liability of the appellants; 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 diswarranties exacted? We can imagine no 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, tionally permit it." supra; Commercial Ins. Co. v. Robinson, 64 Ill. 265; Rich v. Lord, 18 Pick. 325; Lyman v. Clark, 9 Mass. 235.

The evident intention of the parties was that the appellants should be bound for all losses occasioned by fire, except from explosion of boilers, while the steamer was under the control of the appellees and being navigated upon the waters named in the policy. At least, it is our opinion that the appellees were entitled to so understand and construe the policy, and that the warranties relied upon referred to other casualties than loss by fire.

But the jury found that the fire which occasioned the loss did not occur from the explosion of a boiler or the collapsing of a flue.

Putting the construction upon the policy which we have given to it, the court did not err in refusing to give to the jury the instructions asked for by the appellants; and while we are inclined to think that the evidence of experienced steamboatmen was competent as to whether or not the collapsing of a flue was the explosion of a boiler, if the question The bursting of a boiler and the explosion was one about which there might be reasonof a boiler are one and the same thing; there-able ground for controversy, we do not decide fore that part of the warranty quoted which 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 the collapsing of a flue is not the explosion appellants. or the bursting of a boiler. The fluc is inside of and forms a part of the boiler, if a flue boiler, but it is not the boiler proper, and may collapse and the boiler proper remain intact. But the collapsing of a flue is not the explosion of a flue. Webster defines "collapse" thus: "To fall together suddenly, as the two sides of a hollow vessel; to close by falling or shrinking together; to shrink up, as a tube in a steam boiler collapses." He defines "explosion" as follows: "The act of exploding; bursting with a loud noise or detonating sound; a sudden in-court not to disturb the verdict of a jury where flaming with force and a loud report, as the explosion of gunpowder." "The shattering of a boiler by a sudden and immense pressure in distinction from rupture."

The Century Dictionary, a recent and valuable lexicon of the English language, defines "collapse" thus: "To fall together or into an irregular mass or flattened form through the loss of firm connection or rigidity and support of the parts, or loss of the contents, as a building through the falling in of its sides or an inflated bladder from escape of the air contained in it." It defines "explosion" as follows: "A sudden bursting or breaking up or in pieces from an internal or other force; a blowing up or tearing apart, as the explosion of a steam boiler."

From these definitions it will be seen that these words have almost an opposite meaning. When the parties have put a construction upon the language employed in the contract for themselves, the court should not disregard that construction. The difference between the collapse of a flue and the explosion of a boiler is fully recognized in the policy. All parties agree that the bursting of a boiler and the explosion of a boiler are one and the same thing. The quotation heretofore made from the warranties in the policy, and which is an important consideration in the determination of the questions involved, we will set out again:

Adopting the appellants' construction of the policy, and we are not prepared to say that the findings of the jury in answer to the interrogatories propounded to them, as well as their general verdict, are not supported by evidence; and if so, the construction given by the appellant to the policy, if adopted, would not reverse the case, in view of the well-settled rule of this

there is evidence to support it, though in the opinion of the court the preponderance of evidence is against the verdict.

Construing the policy as we do, the verdict of the jury is supported by abundant evidence, for if the fire emanated from any misfortune happening to the boiler, that misfortune was the collapse of a flue and not the explosion of a boiler.

We do not think there is anything in the point that the court treated the appellants unfairly during the course of the trial.

It was sufficient for the appellees to show the loss and the cause that occasioned it, and if the appellants claimed otherwise and desired to bring the case within the special defenses which they had pleaded, after the introduction of the evidence on their part, the appellees were entitled to rebut, and to introduce affirmative evidence to meet the evidence introduced in support of the answers.

We may also say that the introduction of evidence, even out of its order, is a matter very largely in the discretion of the court, and in such a case, before the court will interfere, there must be an abuse of discretion shown.

We find no error in the record for which the
judgment ought to be reversed.
Judgment affirmed, with costs.
Petition for rehearing withdrawn May 14,

1890.

GILKESON-SLOSS

ARKANSAS SUPREME COURT.

COMMISSION CO., | sued out an order of attachment and caused the sheriff to execute the same by levying on the property assigned. The ground of the at

Appt.,

D.

Jesse E. LONDON et al., S. W. Frye, In-tachment was, the defendants had fraudulently

terpleader.

(....Ark.....)

1. The delivery by an assignor for benefit of creditors to his assignee of the deed of assignment and of the key to his storehouse, and the failure of the assignor to go near, or exercise any control over, the assigned goods thereafter, is a delivery of the possession thereof within the meaning of that term as used in 305, Mansf. Dig.

2. Such delivery of possession before the assignee has filed an inventory and executed a bond will avoid the assignment, although made in accordance with a parol agreement between the parties entered into contemporaneously with the execution of the deed of assignment, which is valid on its face, that it was for the purpose of enabling the assignee to prepare an inventory.

(March 22, 1890.)

disposed of their property, the fraud relied on being the making of the assignment. They made no defense to the action, but controverted the ground of the attachment. Frye filed a complaint and claimed the property attached under the assignment. The attachment was discharged, and the claim of Frye was sus tained, and plaintiff appealed.

The deed of assignment was valid on its face. It did not authorize the assignee to take pos session before the filing of an inventory and the execution and approval of his bond, as required by law. But evidence was adduced on the trial tending to prove that the assignors, contemporaneously with the execution of the deed, agreed to deliver to the assignees the keys to the storehouses containing the property assigned for the purpose of enabling him to make his inventory; that, pursuant to this agreement, the deed of assignment and one of the keys to the Alma store were delivered to the assignee at the same time, and, within a very short time

APPEAL by plaintiff from a judgment of thereafter, the only key to the Rudy store; that

the Circuit Court for Crawford County discharging its attachment of certain property alleged to have been assigned for benefit of creditors. Reversed.

The facts sufficiently appear in the opinion. Messrs. O. P. Brown, L. P. Sandels and U. M. & G. B. Rose, for appellant:

Jesse London retained the only other key to the Alma store; and that he admitted that he did not go near the store or exercise any control over the property after the delivery of the deed. Upon this evidence the appellant asked an instruction in the following words: “The court instructs the jury that under the law the assignee is entitled to access to the property assigned for the purpose of making an inventory and bond; but he is not entitled to possession until he has filed his inventory and bond in the clerk's office. If upon the face of a deed of assignment the assignor directs or authorizes the assignee to take possession of the property assigned before he has filed his inpos-ventory and bond, this renders the deed fraud

When the assignors, either in their deed of assignment, or by contemporaneous agreement, delivered possession of the assigned property to the assignee, it vitiated the deed.

Thatcher v. Franklin, 37 Ark. 64; Falconer v. Hunt, 39 Ark. 68; Rice v. Frayser, 24 Fed. Rep. 460; Aaronson v. Deutsch, 24 Fed. Rep. 465; Burrill, Assignm. § 501.

The delivery of the keys is delivery of session.

Aaronson v. Deutsch, 24 Fed. Rep. 465.
Mr. B. H. Tabor for appellees.

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

London Bros., a firm composed of Jesse and John London, were engaged in the mercantile business at Alma and Rudy, in Crawford County, in this State. On the 24th of November, 1887, they assigned to S. W. Frye all their notes, accounts and other evidences of indebtedness, and all their goods, wares, merchandise and fixtures of every kind at Alma and Rudy, for the benefit of their creditors. Thereupon the Gilkeson-Sloss Commission Company commenced an action against the assignors, and

ulent and void as to creditors. And if the assignee or his agent, before the filing of the bond and inventory, by direction or with the consent of the assignors, in consummation of an agreement, oral or written, extraneous to the deed, takes the keys of the storehouse and thus has possession of the property assigned, it renders the deed fraudulent and void as to creditors, just as though such agreement was set forth in the face of the deed.'

And the court refused to give it, but gave the following: "The court instructs you that, under the law, the assignee is entitled to access to the property assigned for the purpose of making an inventory and bond; but he is not entitled to possession until he has filed his inventory and bond in the clerk's office. If,

NOTE.-Assignment for benefit of creditors; statute, upon execution and delivery of the deed, and can

of Arkansas construed.

The statute of Arkansas provides that before the assignee shall be entitled to the possession and control of the assigned property, he shall file a full and complete inventory and execute a bond to the State conditioned for a faithful performance of his duties according to law. Ark. Stat. 1884, chap. 8, $305.

not be defeated by an execution against the assignor coming to the hands of the officer-after such delivery and before filing of the schedule and bond. Clayton v. Johnson, 36 Ark. 406.

While it entitles him to "access" to the property for the purpose of making the inventory, it does not entitle him to the possession and control of the property until he gives bond and files the inven

Title to the assigned property vests in the assignee tory. lbid.

upon the face of the deed of assignment, the | an opportunity to make a fraudulent disposiassignors direct or authorize the assignee to tion of the property. Until they are filed it is take possession of the property assigned before the duty of the assignors to retain possession he has filed his inventory and bond, this would and control and take care of and protect the render the deed fraudulent and void as to cred- property. The delivery of possession to the itors. And if the assignors, or their agents, by assignee for any purpose, prior to the time their direction, or with their consent, in con- fixed by law, which would enable him to do summation of an agreement, oral or written, what the Statute intended to prevent, would be extraneous to the deed and made at or before clearly unlawful. The purpose can avail noththe execution of the deed, agree to put the as-ing if the possession given afforded the assignee in possession of the property assigned signee the opportunity to commit the frauds before the making and filing of the inventory that the Statute intended to prevent by requir and bond, as provided by law, and such as ing the bond and inventory to be first filed. signee was put in possession of the property If the evidence adduced, as stated, be true, before the filing of the bond, this would ren-possession was delivered to the assignee in this der the deed fraudulent and void as to cred-case in violation of the Statute. Bartlett v. itors. And if you find from the evidence that Teah, 1 McCrary, 176, 179. a key or keys to the storehouse, or houses, were delivered to the assignee at the time of the delivery of the deed, or afterwards, in consummation of a contemporaneous agreement, together with the possession of the property, this would render the deed fraudulent and void. But, if the key or keys were delivered to the assignee for the purpose only of giving access to the goods to enable him to make an inventory, the assignors retaining to themselves the possession and control of the assigned property, this would not render the deed Void."

But the question recurs: Did the agreement and the delivery of the keys in pursuance thereof avoid the assignment? This court has repeatedly held that provisions in a deed, which were in contravention of the Statute, rendered the deed void.

In Teah v. Roth, 39 Ark. 66, an attachment was sued out on the ground that the defendant had fraudulently disposed of her property, the fraud relied on being the making of an assignment for the benefit of creditors. In speak-ing of the deed of assignment in that case the court said: "The deed empowered the assignees to retail the goods privately for twelve months, and then to sell the remainder by public auction. This is in contravention of our Statute of Assignments, which directs a ex-public sale within one hundred and twenty days after the assignee takes upon himself the execution of the trusts of the assignment. And the legal effect is to avoid the deed, as against non-assenting creditors;" and the court held the assignment fraudulent. See Raleigh v. Griffith, 37 Ark. 150; Rice v. Frayser, 24 Fed. Rep. 460.

By "access," as used in the instruction, is meant "liberty to approach and inspect the property." By "possession" is meant, "that condition under which one can exercise his power over property at his pleasure to the clusion of all others."

Under this state of facts arises the question, Did the agreement and the delivery of the keys avoid the deed? Section 305 of Mansfield's Digest provides: "In all cases in which any person shall make an assignment of any property, whether real, personal, mixed or choses in action, for the payment of debts, before the assignee thereof shall be entitled to take possession, sell or in any way manage or control any property so assigned, he shall be required to file in the office of the clerk of the court exercising equity jurisdiction a full and complete inventory and description of such property, and also make and execute a bond to the State of Arkansas in double the estimated value of the property in said assignment, with good and sufficient security, to be approved by the clerk of said court, conditioned that such as signee shall execute the trust confided to him, sell the property to the best advantage and pay the proceeds thereof to the creditors mentioned in said assignment according to the terms thereof, and faithfully perform the duties according to law."

In Aaronson v. Deutsch, 24 Fed. Rep. 465, the question under consideration was presented and decided. The court said: "It was the understanding of the parties to the deed that possession of the assigned property should be delivered to the assignee upon the execution and delivery of the deed, and before the assignee had qualified by giving bond and filing an inventory. Accordingly, immediately after the execution of the deed the assignor put the assignee in possession of the property. The key to the storehouse containing the property, and the property itself, was delivered to the assignee; the assignor withdrew from the place and abandoned all watch or care over the property, leaving the assignee to exercise absolute and unrestricted dominion over it. The assignee had not given bond and filed the The intention of this Statute is manifest. inventory up to the time the goods were atBefore the assignee can lawfully take posses-tached. The contention of the learned counsion of the property assigned he must file an inventory of the property conveyed to him and execute a bond, with good and sufficient sureties, to faithfully perform his duties. The object of this provision is the protection of creditors and the prevention of fraud. The inventory is to show the property assigned and the bond to secure all parties concerned against loss on account of the failure of the assignee to perform his duties, and both are required to be filed before the assignee can lawfully have

sel for the defendant is that, because this illegal understanding and actions of the parties were not in terms provided for in the deed, the validity of the assignment is not affected thereby; and that the wrongful possession of the assignee was a matter occurring subsequent to the execution of the deed, and cannot affect its validity. The mere act of taking possession was subsequent to the execution of the deed; but it was done in pursuance of an understanding had at the time of the execution of

the deed, and when that fact is shown its legal effect is the same as if the deed had provided for it. When the parties to the deed enter into an agreement to do an act in violation of the requirements of the Statute of Assignments, and that agreement finds expression in the deed, the instrument is fraudulent and void in law upon its face. When such an agreement is made, but is not disclosed on the face of the deed, it must be proved; and when it is proved, and it is also shown that the parties are carrying out their illegal purpose, the effect upon the validity of the assignment is precisely the same as if the illegal purpose had been de

clared on the face of the deed. And a deliberate agreement, in or out of the deed, made at the time and carried into effect, to violate the Statute, is a fraud upon the Statute, and a fraud upon the legal rights of creditors, which the law will redress by removing the fraudulent barrier to the assertion of their legal rights against their debtor." Whedbee v. Stewart, 40 Md. 414, 424.

Upon the evidence adduced the instructions asked for by appellant should have been given. For reasons indicated the instruction given was erroneous and misleading.

Other questions are presented for our consideration, but we do not deem it necessary to decide them. Reversed.

NOTE.-Surety seeking indemnity; Arkansas Act construed. The failure of an obligee to sue the principal debtor within the time prescribed will not release the surety, where notice was served on the attorney who has the note for collection, and not on the principal obligor. Cummins v. Garretson, 15 Ark. 132.

An executor who seeks to remove out of the State without leaving property to indemnify his sureties against loss may be arrested and held to bail, under § 6396, Ark. Stat. 1884, relating to sureties. Ruddell v. Childress, 31 Ark. 511.

|

obtain indemnity against the debt or liability for which he is bound, he cannot sue in the name of the creditor.

2. The ratification of the act of an attorney in bringing an unauthorized attachment suit will not relate back to the time of the commencement of the suit so as to give the attachment lien priority over the liens of third parties which have been acquired in good faith during the interval between the bringing of the suit and the ratification.

(April 12, 1890.)

APPEAL by intervenors from a judgment of the Circuit Court for Crawford County in favor of plaintiffs upon a petition by intervenors filed in plaintiffs' attachment suit, seeking to have plaintiffs' lien declared to be subse quent to liens held by intervenors. Reversed. Deere, Mansur & Co. held certain promissory notes made by Reynolds Bros. upon which one William Reynolds was surety.

William Reynolds' attorneys brought suit upon the notes on June 14, 1888, in the names of Deere, Mansur & Co., and sued out a writ of attachment. They thereupon notified Deere, Mansur & Co. of their action and the same was subsequently ratified.

On the same day that suit was commenced the Carruth Byrnes Hardware Co. and other creditors commenced suits against Reynolds Bros. and sued out writs of attachment there

on.

All the parties subsequently obtained judgments, and the Hardware Company and other creditors filed petitions in the cause of Deere, Mansur & Co. v. Reynolds Bros. asking to intervene, and that Deere, Mansur & Co's claim be deferred and declared subsequent to them, on the following among other grounds: (1) that the suit was instituted without authority: (2) that the attachment was collusively obtained.

vening rights of third persons cannot be defeated by the ratification. In other words, it is essential that the party ratifying should be able, not merely to do the act ratified at the time the act was done, but also at the time the ratification was made. Cook v. Tullis, 85 U. S. 18 Wall. 332 (21 L. ed. 933).

The civil-law maxim, omnis ratihabitio retrotrahitur et mandato priori æquiparatur, has been adopted by the common law, recognizing as a qualification, however, that the thing done and which is ratified must have been done in a representative character, and not in the name of the unauthorized person as principal; and also that such Any person bound as surety may at any time af- a ratification has no effect upon the rights of third ter action hath accrued on the bond, by notice in persons acquired between the time of the unauthorwriting, require the person having the right of ac-ized act and the ratification of the act. There must tion forthwith to commence suit thereon (Ark. be some mutuality between the ratifying princi-. Stat. 1884, § 6398); and where he has given the hold-pal and the third party who is to be affected by his er of the bond notice and he fails to sue within thirty days, the surety may plead his exoneration in bar of an action on the bond (State Bank v. Watkins, 6 Ark. 123); or he may elect to suffer judgment by default, and apply to equity for relief. Hempstead v. Watkins, 6 Ark. 317.

ratification, else the ratification will not have a ret rospective effect as against the interests of such third party. Johnson v. Johnson, 31 Fed. Rep. 700; Wilson v. Tumman, 6 Man. & Gr. 236; Walker v. Hunter, 2 C. B. 324.

Liens by attachment or judgment upon the Principal and agent; effect of ratification of acts of property of a debtor are not affected by his subse

agent.

quent ratification of a previous unauthorized transfer of the property. Taylor v. Robinson, 14 Cal. 396; Wood v. McCain, 7 Ala. 806; Bird v. Brown, 4 Exch. 799.

Ratification operates upon the act ratified precisely as though authority to do the act had been previously given, except where the rights of third parties have intervened between the act and the ratification. The retroactive efficacy of the ratification is subject to this qualification. The inter-808; Story, Ag. 202.

Ratification of acts of agent; general discussion. See note to Wheeler v. McGuire (Ala.) 2 L. A. B.

The court held, inter alia, that William Reynolds, being surety on the notes due Deere, Mansur & Co., had a right to institute the suit without authority from them, and that the sub-rectly, in person, or indirectly, through an sequent ratification dated back to the time of filing the complaint and affidavit for attachment; that the evidence did not show such fraud and collusion as would render the lien void as to subsequent attaching creditors; and rendered judgment against intervenors, and they appealed to this court.

Messrs. O. P. Brown and Sandels & Warner, for appellants:

The affidavit, not having been made by one who was the agent or attorney of Deere, Mansur & Co., was no affidavit. There being no statutory affidavit, no lien was created thereby. See Drake, Attachm. 83, 86, 93, 131; Waples, Attachm. pp. 76-82; Pool v. Webster, 3 Met. (Ky.) 278; Manley v. Headley, 10 Kan. 88; Miller v. Chicago, M. & St. P. R. Co. 58 Wis.

310.

The ratification by the principal of the act of an unauthorized agent does not relate back to the time of the original act so as to give the principal priority of lien over subsequent lien

ors.

Messrs. J. E. Joiner and Cohn & Cohn, for appellees:

The presumption is that the agent had authority to make the affidavit for attachment. Leake v. Sutherland, 25 Ark. 219, 221, 222; Webster v. Stewart, 6 Iowa, 401.

It is not presumed that one in no wise interested in the suit would make such an affidavit, without it was done by him as the agent of the party in interest, or done for him, for accommodation.

Mandel v. Peet, 18 Ark. 236.

The surety could have brought the suit on the chancery side of the court to compel payment, without regard to any statute, and upon general principles of equity.

Brandt, Sur. $ 192, 193.

The selection of a law tribunal instead of an equity tribunal did not oust the court of jurisdiction.

An action is a formal demand of one's rights from another person in a court of justice. The plaintiff may bring an action either diagent, but his assent in one way or the other is essential, and unless his mind does thus enter into it, it is not his action. Section 6396, Mansfield's Digest, authorizes a surety to bring an action against his principal to obtain indemnity against the debt or liability for which he is bound, but it does not authorize him to sue in the creditor's name. The surety failed to do what he might have done, and did what he had no authority to do.

In Jones v. Moody, 59 Miss. 327, a junior attaching creditor sought by bill in chancery to vacate a senior attachment on the grounds that it was founded on no debt and was a fraud. The attachment assailed was in favor of a party who had owned the note sued on, but assigned it as collateral; the court held that although not the proper party to sue, he had an interest in the note and that the attachment in his favor was not a fraud. It did not hold that he could sue for his assignee without authority. The attorneys who filed the complaint were not authorized to collect the debt for Deere, Mansur & Co., or in any way to act for them; in fact it is not contended that there was any authority of any kind to institute the action in their favor, and it follows that it was not in fact their action. But they were notified of its institution by the attorneys who had assumed to act for them and expressly ratified the unauthorized act.

That a party may adopt a suit brought in his name without his consent was ruled in the case of Craig v. Twomey, 14 Gray, 486, and seems to follow from the general rules applicable to the relation of principal and agent. Of this we entertain no doubt, but the difficulty arises in considering the effect of the ratification in this case.

The appellees contend that "every ratification of an act already done has a retrospective effect, and is equal to a previous request to do it." This is a rule applicable to the subject, Organ v. Memphis & L. R. R. Co. 51 Ark. and, if given in this case the broad meaning it 235, 259; Catchings v. Harcrow, 49 Ark. 20, 22; | conveys, the effect is to give to every act done Jones v. Moody, 59 Miss. 327. in this action, including the attachment proIf the principal recognize and affirm the ex-ceeding, the same effect as if they had been istence and acts of an agent, a mere stranger | originally authorized. will not be permitted to controvert either.

Scott v. Detroit Young Men's Society, 1 Doug. (Mich.) 119, 149; Craig v. Twomey, 14 Gray,486. A person may ratify an action brought in his name, but without his knowledge or authority, by another professing to act as his agent and in .his behalf, and the subsequent ratification is equivalent to a prior authority.

Ancona v. Marks, 7 Hurlst. & N. 686; Irons v. Reyburn, 11 Ark. 378; Wharton, Ag. § 80.

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

Assuming that the attachment sued out in the name of the appellees was not vitiated by fraud or collusion, we must decide (1) if it was their attachment, and if so (2) When was the lien fixed in their favor?

The right of attachment is incident to a civil action and dependent upon it. Mansf. Dig. § 309.

But the rule has its exceptions as well recog nized and as generally approved as the rule itself. Without attempting to indicate to what extent the rule applies or to specify the exceptions that are recognized, we hold that where, prior to the ratification, third persons have in good faith acquired substantial rights or have been placed in such position in reference to the transaction that they will be prejudiced by such retroactive effect, the ratification will not be allowed to cut out or prejudice those rights. The benefit of this exception has been extended to protect the rights of intervening purchasers and lienors, by attachment or otherwise. Mechem, Ag. § 168; Wharton, Ag. § 78; Wood v. McCain, 7 Ala. 800; Taylor v. Robinson, 14 Cal 396; Johnson v. Johnson, 31 Fed. Rep. 700.

Mr.Wharton, by way of illustrating the rule and its exceptions, puts a state of case as an exception which is a counterpart of the case at bar.