1 Indian Terr. 263 | Ct. App. Ind. Terr. | 1896
(after stating the facts.) 1. • Objection is urged to the admissibility and competency of the marshal’s return upon the writ of attachment to establish the value of the goods seized. Section 330 of Mansfield’s Digest of the Laws of. Arkansas prescribes the requisites of. the officer’s return upon an order of attachment. It does not require a valuation of the property attached. In the absence of such requirement by statute, some authorities indicate that the valuation of the officer in his return is béyond the scope of
2. The third paragraph of the court’s charge is objected to. In telling the jury that the assignee of a negotiable note transferred to and held by him before maturity as collateral security of a pre-existing debt took it subject to all equities between the maker and payee, the trial court announced the rule steadfastly followed in many, if not the majority, of the states of the Union, headed by the great commercial commonwealths of New York and Pennsylvania. .But the Supreme Court of the United States, in accord with the decisions of the courts of England and of many of the States, has declared that the transfer by indorsement, to a creditor, of negotiable paper before maturity, merely as security for an antecedent debt, although it is without his express agreement for indulgence, is not an improper use of such paper, and is as much in the usual course of commercial business as its transfer in payment of the debt. In neither case is the bona fide holder affected by equities or defenses between prior parties, of which he had no notice. Railroad Co. vs National Bank, 102 U. S. 14. The conflict between the two doctrines has been productive of much discussion, a further extension of which by us would be fruit-'
3. The matter of the rightfulness of the attachment should be tried and determined by the court upon the issues raised by the affidavit for attachment, and the appellee’s controverting affidavit. Sanger vs Flow, 1 C. C. A. 56, 48 Fed. 152; Platter Co. vs Low, 4 C. C. A. 207, 54 Fed. 93; Holliday vs Cohen, 34 Ark. 707. Should the attachment be dissolved by the court, a jury, if desired, may determine the damages occasioned by its wrongful issuance. The opinion in the case of Holliday vs Cohen clearly outlines the correct practice in such case.
4. The judgment is informal, in that it awards appel-lee the value of the goods attached, with interest, and directs the payment to him by the officers of the court of the proceeds of the sale of the property attached, without providing that the sum should be treated as a credit upon the amount awarded. Blass vs Lee, 55 Ark. 329, 18 S. W. 186. It is sufficient to call attention to this inadvertence, in view of another trial. The judgment is reversed and remanded.