Rowan vs. Refeld

half to James W. Porter, who, with Joseph I. Porter, became a partner of appellant. Appellant and the Porters were partners in planting, stock raising, dealing, etc., for several years, and down to about the close of the year 1869, and the herd of cattle was part of their partnership effects.

By agreement of the partners, there was a public sale of their partnership property on the 15th of January, 1870. It was agreed that the sale should be for cash. Appellant, who lived in Missouri, made Musgrove his agent, and authorized him to attend the sale, and settle with his partners after the sale. James W. Porter bid off the cattle in controversy at the sale, and he and Musgrove failed to agree upon a settlement of the partnership accounts. James W. Porter afterwards sold the cattle to James T. Porter, who borrowed money from Joseph M. Refeld, and gave him a bill of sale, in the nature of a mortgage, which was not recorded.

Appellant came from Missouri to Arkansas County, and made an effort to have a settlement with James W. and Joseph I. Porter of their partnership affairs, but failing, he filed the bill in the United States Circuit Court, above referred to. The result of the litigation in that suit was, that he obtained a decree against James W. and Joseph I. Porter for $2,950.78, for balance due from them to him on partnership account, with leave to take out an execution on the decree as upon a judgment at law.

In this decree was manifestly included the amount bid for the cattle in dispute, by James W. Porter at the sale of the partnership effects made on the 15th January, 1870, which was, in effect, an affirmance of his purchase of the cattle.

It is clear, therefore, as above indicated, that at the time this suit was commenced, appellant appears to have had no title to the cattle, except such as he may have derived by purchase at the sale made by the marshal under an execution issued upon the

Rowan vs. Refeld.

above decree. The execution was not included in the transcript of the proceedings in the Federal suit produced at the trial, and was not offered in evidence.

The appellant, however, read, in evidence, the marshal's deed, which recites the decree, execution, levy, sale, etc.

The deed recites that the execution was levied (26th June, 1874) on four tracts of land, which are described, one buggy and harness, and "fifty head of cattle running on the range," as the property of James W. Porter and Joseph I. Porter, the defendants in the execution.

The deed also recites the advertisement, the sale on the 18th July, 1874, and that the lands, buggy and harness and "fifty head of cattle running on the range," were purchased by Isaac M. Rowan (appellant) for $170, he being the highest bidder, etc.

The deed, on its face, shows that the cattle were running on the range when the levy was made, and running on the range when sold by the marshal, and no witness swore, upon the trial, that the cattle were present at the sale, or at the place of sale.

Such sale is contrary to public policy, and void; Kennedy & Co. v. Clayton, 29 Ark., 270.

The mischief likely to result from a sale of personal property, when it is not present to be delivered by the officer to the purchaser, and the wisdom of the law in forbidding it, are well illustrated in this case.

Musgrove, the agent of the appellant, who was familiar with the cattle, and who made the affidavit attached to the complaint upon which the order of delivery was obtained, swore that the cattle were worth $900; yet it appears from the marshal's deed, that they were lumped off, as "fifty head of cattle running on the range," and were purchased for appellant, with the lands, buggy and harness, for the small sum of $170.

31 652 166 585

Probst & Hilb vs. Scott.

It appears that some time after the sale, and before the institution of this suit, the agent of the appellant obtained actual possession of the cattle, upon the order of the deputy marshal who made the sale, and rebranded them, but they were recaptured by appellee and her allies, and part of them shipped to Memphis and sold. But the sale being invalid when made, for want of the presence of the cattle, the after delivery of the cattle to the agent of the appellant, did not cure the defect in the title.

The marshal's deed, on which appellant relied for title, showing, on its face, that the cattle were running on the range when sold, if they were, in fact, actually present at the sale, the burthen of proving such material fact was on the appellant, and no witness, sworn upon the trial, proved this fact.

The appellant having failed to prove his alleged title to the property, it is not necessary to pass upon the validity of the title of appellee.

Nor is it important to determine whether the court erred in its charge to the jury, as, upon the whole record, the judgment is right, and must be affirmed.

PROBST & HILB VS. SCOTT.

EXEMPTION OF CHOSE IN ACTION:

Under the provisions of the Constitution of 1868, choses in action may be selected by the owner as exempt from a garnishment process.

APPEAL from Pulaski Circuit Court.

Hon. J. J. CLENDENIN, Circuit Judge.

Erb, for appellant.

Howard and M. L. Rice, contra.

Probst & Hilb vs. Scott.

ENGLISH, CH. J.:

On the 18th of July, 1874, Probst & Hilb recovered a judgment before a justice of the peace of Pulaski County, against T. W. Holland and Thomas C. Scott for $242.30, on which an execution was issued and returned nulla bona.

A transcript of the judgment was filed in the office of the Clerk of the Circuit Court of said county, and a writ of garnishment issued thereon against the Continental Fire Insurance Company of New York, as debtor of Scott, and served on a local agent of the company, who answered, it seems, that the company was indebted to Scott, cn a fire policy, in the sum of $299.25.

Scott filed a petition praying to be made a party to the garnishment proceeding, and claiming that the debt due to him from the insurance company was exempt from the process of garnish

ment.

He states, in substance, that the debt, on which the judgment was rendered against Holland and himself, was contracted for goods, wares and merchandise, in the year 1872.

That at the time the judgment was rendered, he was possessed of certain personal property, consisting of liquors, glass ware and saloon furniture, in a saloon in the Anthony House, in Little Rock, worth $600, which was insured in the Continental Insurance Company for $400.

That about the 19th of September, 1875, the Anthony House was destroyed by fire, and petitioner lost by the fire the greater part of said property, and his loss was adjusted by the insurance company at $295.20.

That, before and at the time of the fire, his entire personal property did not exceed $700 in value, including the liquors, etc., above stated, and he claimed that the same was exempt from execution.

Probst & Hilb vs. Scott.

That, at the time of the issuance of the writ of garnishment, his entire personal property was as above stated, and that at the present time his entire personal property is as follows, viz: Eight billiard tables and furniture of the full value of $1,500, upon which there is an incumbrance of $1,476 for purchase money, and household furniture and wearing apparel of the value of $100. That this is all the personal property petitioner has, except the said sum of $299.25, held for him by the insurance company, which is not otherwise indebted to him.

That all of said property is exempt from execution on said judgment under the Constitution and laws of the State, and petitioner selects said property, viz: Eight billiard tables and furniture, in the Metropolitan saloon; household furniture and wearing apparel of the value of $100, and the sum of $299.25, held as aforesaid for him by said insurance company, and claims it as exempt from execution herein.

The plaintiffs moved the court to strike from the files the petition of Scott, which motion the court overruled,

The matter was then submitted to a jury, who returned a verdict that 'the property is not subject to execution." Whereupon the court rendered judgment discharging the garnishee, and plaintiffs excepted and appealed.

What instructions the court gave the jury, or what evidence they had before them, does not appear from the bill of exceptions. Nor do we see why a jury was empanneled. There was no answer to the petition of Scott, controverting or putting at issue any of its statements. The facts stated in the petition, being in no way denied or put at issue, it was a question of law for the court to determine, whether the debt due from the insurance company to Scott was exempt, or subject to the process of garnishment, and the court, in refusing to strike out his petition,