Barton v. Ferguson, 1 Indian Terr. 263

Barton v. Ferguson

1 Indian Terr. 263 | Ct. App. Ind. Terr. | 1896

Lewis, J.

(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 *268Ms duty. If so, it would seem inadmissible upon the question of value in suits to which he is not a party. Drake, Attach. §§ 209, 210; Shinn, Attachm. § 238. Other author- - ities suggest that, since the officer’s duty is to attach property enough to cover the claim sued upon, he should designate in his return the approximate value of the property seized, thereby showing how in this regard he has discharged his duty. Waples, Attachm. § 321. This view is reasonable, and, if accepted, the valuation by the Officer of the property taken is an official act, done in the performance of his legal obligation, and properly incorporated in his return. We accept this view, and conclude that the return was admissible as prima facie evidence ok value, but subject to be overcome by parol evidence of a different value.

Attachment Return of officer as evidence of value. Negotiable Papers. Security for antecedent debt. Innocent holder.

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-' *269less. The Supreme Court of the United States is the court of ultimate appeal from this court, and its decisions are binding upon us. The rule declared by it is applicable to the undisputed facts of this record. It follows that in the instruction given the trial court erred, for which the judgment must be reversed and remanded. Should the facts at the' next trial be the same as here presented, the court should direct a verdict for appellants for the amount of their demand. If payment was made to the payee while]_the note was held by appellants as bona Me holders for value, such payment is ineffectual against the appellants, whatever may have been the representations of the payee, Hagy. 2 Daniel, Neg. Inst. § 1227. Should the facts as developed at the next trial make it proper to submit the issue to the jury, they should be told that the burden is upon the appellee to establish his plea of payment.

Attachment Trial. Attachment Judgment.

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.

Springer, C. J., concurs.