Jesse Clements, Plaintiff In Error v. Daniel Berry

• Decision Date: 01 December 1850
• Citation: 11 How. 398,52 U.S. 398,13 L.Ed. 745
• Parties: JESSE B. CLEMENTS, PLAINTIFF IN ERROR, v. DANIEL BERRY
• Court: U.S. Supreme Court

52 U.S. 398

11 How. 398

13 L.Ed. 745

JESSE B. CLEMENTS, PLAINTIFF IN ERROR, v. DANIEL BERRY.

December Term, 1850

THIS case was brought up from the Supreme Court of Tennessee, by a writ of error issued under the twenty-fifth section of the Judiciary Act.

Clements, the plaintiff in error, was the marshal of the United States District of Middle Tennessee.

The action was a replevin brought by Berry against Clements, in the Circuit Court of Davidson County, Tennessee (State court), and upon the trial in that court the following statement of facts was agreed upon.

DANIEL BERRY v. J. B. CLEMENTS.

Replevin.—Circuit Court, Davidson County.

In this case the defendant comes and defends the wrong and injury, when, &c., and says he is not guilty in manner and form as the plaintiff in declaration hath alleged, and of this he puts himself on the country, and the plaintiff also; and the following facts are agreed upon between the parties:—On the 20th of January, 1848, William H. Inskeep, Albert Moulton, Edward D. Woodruff, and John Sibley, citizens of the State of Pennsylvania, trading in partnership under the firm Inskeep, Moulton, & Woodruff, brought an action of debt against Charles F. Berry, a citizen of the State of Tennessee, and resident of Nashville, in the Circuit Court of the United States for the District of Middle Tennessee, upon several notes of

hand executed by said Berry, payable to said Inskeep, Moulton, & Woodruff; the writ and copy of the declaration was served by the marshal upon the said Charles F. Berry on the 20th of January, 1848. The writ was returned to the court with the declaration at March term, 1848, and the following entries were made on the rule docket, and minutes, as by the copy hereunto annexed, and made part of the case agreed, marked A: Inskeep, Moulton, & Woodruff, debt, 20th January, 1848, executed and delivered defendant a copy of declaration. Declaration filed March 1st, 1848; ruled for plea by 8th March; no plea being filed by attorney, takes judgment by default. Circuit Court of United States, Middle Tennessee District. Thursday, March 9th, 1848, court adjourned until to-morrow morning, 10 o'clock. Friday, March 10th, 1848, court met according to adjournment. William H. Inskeep, Albert Moulton, Edward W. Woodruff, and John Sibley, trading under the firm of Inskeep, Moulton, & Woodruff, v. Charles F. Berry. The plaintiffs appear by their attorney, and a judgment by default having been taken in this cause on the 8th of March, 1848, and no motion having been made to have the same set aside, it is therefore considered by the court that said judgment by default be affirmed, and that the plaintiffs recover against said defendant $1,316.68, their balance of debt in the declaration mentioned, and the further sum of $44.22, their damage sustained by reason of the detention thereof, and their cost in this behalf expended, and that execution issue. Session of court commenced on the 6th March, 1848. A true copy. J. McGavock, clerk, by G. M. Fogg, deputy. Berry's deed received at register's office 51 minutes after 9, on the 10th March. Inskeep & Co. Judgment obtained about half-past ten o'clock same day.

The said Circuit Court of the United States commenced its session on Monday, the 6th day of March, 1848. On the 10th day of March, 1848, Charles F. Berry, the debtor, executed a deed of trust to the plaintiff in this cause, a copy of which is hereunto annexed, and made a part of this case agreed:

'Know all men by these presents, that I, Charles F. Berry, of the county of Davidson, and State of Tennessee, of the one part, and Daniel Berry, of the county and State aforesaid, of the other part, witnesseth, that I, the said Charles F. Berry, for and in consideration of the sum of $5, to me in hand paid by the said Daniel Berry, and the other consideration hereinafter mentioned, hath this day bargained, sold, transferred, and conveyed, and do by these presents bargain, sell, transfer, and convey, to the said Daniel Berry all my stock of dry goods of every description, and all sorts of ware now in

the storehouse occupied by me on the public square in Nashville, and also in a storeroom occupied by me in Nashville, amounting together to the sum of about $12,000, as per invoice book made out this day; three horses, one negro man slave, named Abraham, one buggy, all my accounts of every description, and the book containing the same; all the notes, &c., that are due me, and also my interest, whatever it may be, in the unsettled business of the firm of A. D. & C. F. Berry; also, all the interest I have in and to the following-described lots or pieces of ground, viz. lots No. 5 and 6, as described in a plat made by C. W. Nance, of lots adjacent to the town of Nashville, on Cherry Street, fronting thirty feet each on Cherry, and also lots A and B, in No. 20, in the plan of South Nashville, and lots No. 3 and 4 adjoining F. B. Fogg's lot on Cherry Street. To have and to hold said property, of every description, to the said Daniel Berry, his heirs and representatives for ever. I, the said Charles F. Berry, bind myself, my heirs and representatives, to warrant and defend the title to the same, or any part thereof, to the said Daniel Berry, his heirs and assigns, against the lawful claims of all persons whomsoever. But this deed is made for the following use and trust, and for no other purpose; that is to say, that the said Daniel Berry and A. D. Berry are my accommodation indorsers on the notes, most of them, embraced in schedule A, and whereas I am anxious to secure them, and also the payment of all the claims therein specified, to the persons to whom said claims are due, and also to secure the claims specified in the schedule B to the person therein named, which schedules are to be registered with this deed. Now, if I, the said Charles F. Berry, shall well and truly pay off and satisfy said debts mentioned in schedules A and B on or before the 1st day of December, 1849, then this deed to be void; but if I shall fail to do so, then the said Daniel Berry shall sell whatever remains of said property upon such terms as will be most for the interest of the creditors, and apply the proceeds to the payment, first, of the debts mentioned in schedule A, until they are all paid and satisfied; and, secondly, to the payment of the debts mentioned in schedule B, if there shall be enough after paying the expenses of executing this trust; if not, to make a pro rata distribution of the proceeds amongst them. In order to make it more certain that said debts shall be paid within the time specified, I hereby authorize the said Daniel Berry, as trustee, to take immediate possession of all the above-described property, and that he may proceed to sell the same upon such terms as will make it yield the most money; and that he take possession of all my books of accounts, notes, &c.,

and proceed to collect the debts due me as speedily as he can, and to apply the proceeds of the goods and property, and the money collected by him, to the payment of the debts in the order above specified; but that he shall not be forced to make a general sale of said property, goods, &c., until the expiration of said time.

'In testimony whereof, I, the said Charles F. Berry, have hereunto set my hand and seal, this the 10th day of March, 1848.

'C. F. BERRY.'

'State of Tennessee, Davidson County.

'Personally appeared before me, Robert B. Castleman, clerk of the County Court of said county, the within-named C. F. Berry, the bargainer, with whom I am personally acquainted, and who acknowledges that he executed the within deed of trust for the purposes therein contained.

'Witness my hand at office, this 10th day of March, 1848.

'R. B. CASTLEMAN.'

'State of Tennessee, Davidson County.

'Register's Office, March 11, 1848.

'I, William James, register of said county, do hereby certify that the foregoing deed of trust and certificate are duly registered in my office, Book No. 10, pages 574, 575, and that they were received March the 10th, 1848, 9 51/60 o'clock, A. M., and entered in Note Book 2, page 20.

'WILLIAM JAMES.'

And the same was lodged for registration in the register's office, at the time mentioned in the memorandum upon said deed, on the 20th of March, 1848; an execution, being a writ of fieri facias, issued upon said judgment, and came to the hands of the marshal on the 21st of March, and by him, on the 24th of March, was levied upon the goods, wares, and merchandise particularly specified in the levy, a copy of which is hereunto annexed, marked C, together with the return of the marshal.

'The President of the United States to the Marshal of the Middle District of Tennessee, greeting:

'You are hereby commanded, that of the goods and chattels, lands and tenements, of Charles F. Berry, in your district, you cause to be made $1,379.85, which William H. Inskeep, Albert Moulton, Edward W. Woodruff, and John Sibley, trading under the firm of Inskeep, Moulton, & Woodruff, in the Circuit Court of the United States for the Eighth Circuit, in the Middle

District of Tennessee, recovered against him for balance of debt, damages, and cost, in a certain action of debt in the said court, lately determined, wherein the said Inskeep, Moulton, & Woodruff were plaintiffs, and said Charles F. Berry was defendant, whereof said defendant is convicted, as appears of record, and have the said money ready to render before the judge of our said court at Nashville, on the first Monday in September next; herein fail not, and have then and there this writ.

'Witness the Honorable Roger B. Taney, Chief Justice of the Supreme Court of the United States, this first Monday in March, A. D. 1848, and in the seventy-second year of our independence.

JACOB McGAVOCK, Clerk.'

'Issued March 20th, 1848; came to hand 21st March, 1848; levied this fieri facias upon the following goods, wares, and merchandise, as the property of Charles F. Berry...