J. Pollock & Co., Appellants, vs. George R. Murray & Co., Appellees, 38 Fla. 105

Mabry, C. J. {after stating the facts as above). The first error assigned and insisted on is the ruling of the court sustaining the plea in abatement filed February 4th, 1889. Appellants, who were plaintiffs below, commenced a suit of attachment against appellees, and on the fifth day after the affidavit and bond were filed, and after the writ of attachment had been levied, a praecipe for summons returnable to the following rule day was filed. The praecipe was the usual -one in ordinary actions of assumpsit, and made no reference to the attachment proceedings.

A declaration with bill of particulars in assumpsit was filed, •and plaintiffs treated the entire proceedings as in one suit, but a different view was entertained by defendants, and considering that two separate and distinct actions had been instituted on the same cause of action, a plea to abate the second on account of the pendency of the first was interposed. The court, it seems, agreed with the view entertained by defendants, and sustained the plea in abatement.

Whether or not the decision of the court in sustaining the plea was erroneous, does not appear to us to be of any practical importance in this case, as the declaration and bill of particulars filed in the second suit, as considered by the court, was withdrawn by plaintiffs and re-filed in the attachment suit at the time the plea in abatement was sustained.

Defendants’ motion to dismiss the attachment suit on account of laches in not pleading therein was overruled, and from plaintiffs’ standpoint, regarding all the proceedings .as in one suit, they were not injured by the decision of the court on the plea in abatement, as the same pleadings which they had already filed were instantly re-filed in the attachment suit, and the defendants were required to answer therein.

There was delay caused by the proceedings on the plea in abatement, but there is nothing in the record to show that the extended continuance of such proceedings in the trial court was not by the consent of plaintiffs. The third assignment of error, which we will next consider, calls in question the correctness of the ruling of the court in sustaining the demurrers to plaintiffs’ replications.

After plaintiffs obtained leave and reffled their declaration in what the court considered the first suit instituted, defendants interposed a plea that the attachment bond filed therein was not executed by plaintiffs, nor by any person acting in their name and behalf by virtue of a power of attorney under seal.

This plea was considered in the nature of one in abatement of the attachment suit on account of the alleged defective execution of the attachment bond, and no question was raised in the lower court, and none suggested here as to the proper practice of reaching such a defect in the bond, if it existed, by plea in abatement. All the replications to this plea were overruled. The first one states in substance that before the attachment bond was executed and filed, plaintiffs authorized their agent, by parol, to execute the bond, and they were bound thereby.

The second one alleges in substance that subsequent to the execution and filing of the bond plaintiffs ratified and confirmed the same; and the third one asserts that subsequent to the execution and filing of the bond, and on a date mentioned, plaintiffs executed under seal a written ratification of the bond. The bond is executed in the name and purports to be the obligation of plaintiffs in the attachment suit, but its execution was by an agent. We presume that the court was influenced in its judgment sustaining the demurrer to the replications by the decision in Forbes & Bro. vs. Porter, 25 Fla. 362, 6 South.

Rep. 62. It appears from the report of that case that after a traverse of the attachment affidavit the defendant gave notice of a motion to dissolve the attachment on his traverse tendered, and because the attachment .was granted without a legal and sufficient bond, and the causes of attachment alleged were insufficient under the statute.

A jury was called to try the issue raised on defendants’ traverse of plaintiffs’ affidavit for the attachment, but before any evidence was offered on this issue defendants’ counsel requested the court to decide the motion to dissolve the attachment because of the alleged defective bond. The court declined to make any ruling, as requested, and proceeded with the issue before the jury on the traverse, which resulted in favor of the plaintiff.

Defendants at a subsequent date requested the court to decide upon the validity of the attachment bond, but the court declined to do so on the ground that the motion was not made until after the jury was empanelled on the traverse issue. -On the trial of this issue evidence was brought out as to the authority of the agent to execute the attachment bond, and while it appeared that he was the duly authorized agent of the plaintiff, there was no written authority for the execution of the bond.

The decision of the court on this point was that a power of attorney under seal is required to authorize an agent to execute a bond in the name of the principal, under the attachment laws of this State. There was no question in the case as'to the ratification of the acts of the agent in executing the bond, and the opinion says nothing on this subject. In the case of Jeffreys vs. Coleman, 20 Fla. 536, where one partner executed an attachment bond in the name of the firm, it was distinctly held that the signing could be authorized by parol, or ratified by parol, by the other partner.

The authorities cited refer to the conditions under which one partner may bind the firm by executing bonds in the firm name. The bond in the case of Ross, Keen & Co. vs. Steen, 20 Fla. 443, was executed in a firm name by an attorney, and in the latter part of the opinion it is stated that the rule announced in Jeffreys vs. Coleman would apply. The point was not necessary to the decision, and there is no head note on the subject. Under the decision in Forbes vs. Porter, supra, the first replication is bad, but if either of the other two is good, the conclusion of the court was wrong.

The' second and third replications allege a ratification subsequent to the filing of the bond, and the ratification set up in the .third was in writing and under seal. This ratification, not set out in the statement, is full and complete, and duly signed, sealed and acknowledged. The Mississippi court has gone very far towards sustaining the right to ratify the acts of an agent in executing a bond in the name of the principal, Spear vs. King, 6 Smedes & M. 276; Dove vs. Martin, 23 Miss. 588; Bank of Augusta vs. Conrey, 28 Miss. 687; Tingle & Isham vs. Brison, 14 W. Va. 295.

In Maine and Arkansas it has been held that the principal may ratify the execution of a bond in his name by an agent without sufficient authority at the time of execution. Narragaugus Land Proprietors vs. Wentworth, 36 Maine, 339; Mandle vs. Peet, Simms & Co., 18 Ark. 236. It was decided the other way in Louisiana. Grove vs. Harvey, 12 Robinson, 221. In the early case of Conklin & Smith vs.

Goldsmith, 5 Fla. 280, where it was held that an agent in obtaining a writ of attachment might execute the bond'in his character as agent, binding himself individually, and not his principal, it was said that the main object of the law in requiring the attachment bond was to protect the debtor from an improper use of such remedy. Quoting from Frost vs.

Cook, 7 Howard, 359, it is said: “The object was to secure the defendant in the recovery of any costs or damages he might sustain in consequence of suing out the attachment wrongfully, and that object is as well attained by a bond of the agent as of the principal.” A complete ratification of the acts of the agent relates back to the giving of the bond, and of course the principal would be forever estopped from denying the execution of the bond in his name.

If the object of the statute in requiring the bond is to secure the defendant in costs and damages wrongfully sustained-, the ratified bond is as good as if executed with full authority in the first instance. Our conclusion is that the third replication presents a good answer to the plea, and that the court erred in overruling it and dismissing the suit. ■ There was no error in the action of the court ref us - ing to strike from the files the traverse of the affidavit upon which the attachment was based on the ground that it was not filed in time, the only objection urged here.

A defendant has up to the trial of the suit, upon its merits, the right to traverse the allegations in plaintiff’s affidavit, and this right is availabie as' well after as before plea to the action. Kennedy vs. Mitchell, 4 Fla. 457. There was considerable delay in filing the traverse in the present suit, but it does not appear that plaintiffs were at all active in bringing the case to a final determination, and the issues on the merits of the case have not yet been made up, so far as shown by the record before us. An order will be entered reversing the judgment for further proceedings.