Trieber vs. Commercial Bank of St. Louis.

Second-But it is insisted for appellant that the payees of the bill, having endorsed it in blank, the endorsement must be taken to have been made on such day as will be most to the advantage of appellant, and that the court erred in finding contrary to this legal presumption, citing Gantt's Digest, sec. 570, and Ruddell, ex'r, v. Sanders, 25 Ark., 239.

In Clendenin v. Sutherland, ante., the section of the Digest that "All blank assignments shall be taken to have been made on such day as shall be most to the advantage of the defendant," was construed.

The court held that "the statute merely changed a former rule of presumption, which was, that law, in the absence of any evidence on the subject, presumes a transfer to have been made before the bill or note was due; that the meaning of the statute manifestly is, that in the absence of evidence to prove when the blank assignment was, in fact, made, the presumption must be that it was made on such day as shall be most to the advantage of the defendant."

In this case the court found the fact to be that the bill was endorsed and delivered to appellee before maturity, and this finding, from the evidence, overcomes the statutory presumption.

The bill was endorsed in blank by the payees, and by the cashier of the bank (appellee), endorsed to Nelson & Hanks for collection on account of the bank, who held it at maturity, and in whose names it was presented for payment and protested for non-payment, as shown by the notarial certificate.

The judgment of the court below must be affirmed.

Puckett et al. vs. Reed et al.

PUCKETT et al. vs. REED et al.

1. LANDLORD'S LIEN: Purchase without notice, etc.

One who purchases cotton grown on demised premises, after the same has been removed by the tenant to a gin, and without notice of the landlord's lien, takes it discharged of the lien.

2. SALE: Symbolical delivery.

3.

A sale of personal property may be completed and the title pass, as to third parties, without actual delivery, when, from the nature or situation of the property, actual delivery is impracticable.

: Same.

The delivery to a purchaser of a ginner's receipt for cotton, which stipulated that the same was to be ginned, baled, etc., and delivered to the holder of the receipt, was a symbolical delivery of the cotton, and passed title to the purchaser free from a landlord's lien for rent, of which he had no notice.

APPEAL from Independence Circuit Court.

Hon. W. B. PADGETT, Special Judge.

J. M. Moore, for appellant.

U. M. Rose, for appellees.

ENGLISH, CH. J.:

It appears that A. B. Harris rented his farm in Harris' bottom, on White River, Izard County, for the year 1871, to William Riley and others, for a stipulated rent, to be paid in cotton and corn; that on the 27th November, 1871, Riley, one of his tenants, removed from the farm to the gin or warehouse of A. & A. Jeffery & Co., at Mount Olive, 1,742 pounds of seed cotton grown on the leased premises. On the 11th December, 1871, Harris sued William Riley and the other tenants before a justice of the peace of Izard County, and, upon affidavit, bond, etc., obtained an attachment to enforce his lien as landlord against the crops of the tenants remaining on the farm, and particularly against the seed cotton removed to the gin or warehouse of A. & A. Jeffery & Co. On the day of the issuance of the attachment

Puckett et al. vs. Reed et al.

(11th December, 1871), the constable levied upon the 1,742 pounds of seed cotton at the warehouse (as stated in the return) of A. & A. Jeffery & Co., and also on cotton and corn remaining on the farm of plaintiffs. On the 15th January, 1872, there was

trial and judgment against the defendants in the attachment suit, and, it seems, an order for the sale of the property attached. The defendants took no appeal.

On the 20th of January, 1872, Reed & Co., merchants of Batesville, interpleaded for the 1,742 pounds of seed cotton attached at the gin of Jeffery & Co., claiming to have purchased the cotton from William Riley before it was attached. There was a trial upon the interplea before the justice of the peace 20th January, 1872, and verdict and judgment in favor of Harris.

Reed & Co. appealed to the Circuit Court, where they were permitted to amend their complaint; the death of Harris was suggested, Pleasant J. Puckett, his administrator, substituted as a party, and, by consent, the cause was removed to the Circuit Court of Independence County. There the cause was tried before the court, finding and judgment in favor of the interpleaders, motion for new trial overruled, bill of exceptions, and appeal to this court by the administrator of Harris.

In the original interplea, or complaint, as it is styled in the record, the appellees alleged that, on the 6th of December, 1871, and before the issuance of the attachment, they purchased the cotton of William Riley, and he delivered to them the receipt of A. & A. Jeffery & Co. therefor. In the amended complaint they alleged that at the time they purchased the cotton of Riley, they had no notice, actual or constructive, that Harris had, or claimed to have, a lien thereon for rents or otherwise.

The receipt of Jeffery & Co., which was made an exhibit to the interplea, and read in evidence on the trial, follows:

Puckett et al. vs. Reed et al.

"MOUNT OLIVE, ARK., Nov. 27th, 1871.

"Received of William Riley seventeen hundred and fortytwo (1,742) Ibs. seed cotton, to be ginned and baled for toll, and delivered to the holder of this receipt.

"A. & A. JEFFERY & Co."

Isaac N. Reed, a member of the firm of Reed & Co., (composed of Charles P. Burr and himself) testified on the trial that on the 6th day of November, 1871, he purchased of William Riley 1,742 pounds of seed cotton, at four cents per pound, and paid him half in goods and half in money, and that Riley delivered to him the cotton receipt of A. & A. Jeffrey & Co., the ginners having the cotton, and which he knew to be in their handwriting, that he was particular to inquire of Riley if there was any lien or claim on the cotton, and he informed him that there was none. Witness was also permitted to testify, against the objection of appellant, that he had been engaged in the mercantile business in Batesville ever since the year 1865, and was well acquainted with the usage and custom of merchants at that place as to ginner's receipts for cotton; that the purchaser of cotton by the ginner's receipt was usual and customary with the merchants, and had ever been the custom so far as he knew. He had theretofore bought cotton by receipt in Izard County. The appellees were then permitted to read in evidence the receipt copied above, against the objection of appellant.

Robert Neill testified that he was present when appellees purchased the cotton of Riley, on the 6th December, 1874, and paid him therefor four cents per pound, amounting to $69.68; that full payment was made at the time. Witness handed Riley the cash that was paid on the trade, being about one half of the price agreed upon. He was book-keeper for appellees at the time of the purchase, and knew the receipt of A. & A. Jeffery & Co., which Riley then had, to be in the hand-writing of one of the firm, and so told Reed.

Puckett et al. vs. Reed et al.

He was also permitted to testify, against the objection of appellant, that he was in the mercantile business at Batesville in the years 1868-9-70-71, and well acquainted with the custom of merchants and ginners in the county of Independence, and adjoining counties of Izard and Sharp, and it was the general custom for ginners to give persons delivering cotton to them receipts similar to the one given by Jeffery & Co. to Riley in this case: and for merchants to buy the cotton and take the receipts from the holder, and then look to the ginner for the cotton. This custom was very generally practiced and agreed to by parties concerned. While in the mercantile business he had frequently bought cotton receipts on gins in Izard County, and received the cotton. Did not know that the custom applied in other counties than those named.

Edwin T. Burr was permitted to testify, against the objection of appellant, that he had been a citizen of Batesville for thirty years, and that for about twenty-five years of that time it had been the custom of merchants to purchase cotton receipts at Batesville and in Jackson County; that he did not know whether the custom existed in Izard County or not; that he had bought cotton receipts from parties living in Izard County.

It seems that there was a written contract of lease between Harris and Riley and others, defendants in the attachment, which was at some time among the papers of the court, but could not be found at the trial; but two witnesses, who had seen the contract, testified that it was substantially as stated by Harris in his affidavit for attachment; and it may be assumed that appellant proved that Harris had a landlord's lien on the cotton at the time appellees purchased it of Riley, one of his tenants.

The appellant moved the court to declare the law to be, "That the delivery of the ginners' receipt for the cotton in controversy does not pass the title to the property in the cotton to the