Kerrison, Assignee v. Stewart Et Al
Decision Date | 01 October 1876 |
Citation | 93 U.S. 155,23 L.Ed. 843 |
Parties | KERRISON, ASSIGNEE, v. STEWART ET AL |
Court | U.S. Supreme Court |
APPEAL from the Circuit Court of the United States for the District of South Carolina.
Edwin L. Kerrison and Herman Leiding, of Charleston, S. C., May 1, 1867, conveyed to Charles Kerrison, in trust, the real estate in controversy in this suit, by deed, the material parts of which are as follows:——- 'This deed of two parts, made this first day of May, in the year of our Lord one thousand eight hundred and sixty-seven, between Edwin L. Kerrison and Herman Leiding, of the city of Charleston, in the State aforesaid, lately trading together as merchants, copartners, under the name and style of Kerrison & Leiding, of the first part, and Charles Kerrison, also formerly merchant, of the same place, of the second part, witnesseth: That whereas, with a view to enable them, the said Kerrison & Leiding, parties hereto of the first part, to resume some mercantile trade or business, a majority of their creditors, both in number and amount or value, have agreed to take their notes, dated the first day of December last, payable, with interest, from the first day of June, that was in A.D. 1865, two and three years after the said date, secured by a conveyance to an approved trustee of the real estate hereinafter fully and particularly mentioned and described, and intended to be conveyed to the said Charles Kerrison, hereto of the second part, in trust, for the better securing of the said notes, a schedule whereof, with the names of the said creditors and the respective amounts of the notes given to each of them, all bearing the date and payable on the days aforesaid, is hereunto annexed and made a part of these presents; and whereas all other the creditors of the said Kerrison & Leiding may be disposed to come in upon the footing of the said agreement and security, and in that event it is intended to secure to them that right, and also to provide for making the security more effectual.
A. T. Stewart & Co. were named as creditors in the second schedule; but they declined to accept under the trust. Paton & Co. were named in the first schedule, and Benkard & Hutton in the second.
On Aug. 8, 1866, and before the execution of the deed of trust, Stewart & Co. sued out a summons, entitled 'Sixth Circuit of the United States of America, South Carolina District,' and tested by the Chief Justice of the United States, at Greenville, South Carolina, commanding the marshal of the United States for that district to summon Edwin L. Kerrison and Herman Leiding to appear before the clerk of the Circuit Court of the United States for the aforesaid circuit and district, at the rules to be holden at Charleston, in the aforesaid district, on the first Monday in September next, to answer, &c. The writ was signed by the clerk of the Circuit Court for the district of South Carolina, and sealed. At the day named, Kerrison & Leiding, by their attorneys, entered their appearance to the suit, before the clerk. Stewart & Co. then filed their declaration, containing several counts; to a part of which Kerrison & Leiding demurred, and to others they pleaded specially. They also pleaded the general issue. Stewart & Co. demurred to the special pleas, and the cause was placed upon the docket of the Circuit Court. At a regular term of the Circuit Court, holden at Charleston in June and July, 1867, the demurrers to the declaration were overruled, and those to the special pleas sustained. The cause then standing for trial upon the general issue, was continued. In the following August, the docket of the Circuit Court was taken to Greenville, at which place, on the first Monday in that month, a regular term of the District Court for the Western District of South Carolina was held, that court having circuit-court jurisdiction and powers in that part of the district of South Carolina embraced within the western district. Before the term, the attorneys of Stewart & Co. notified the attorneys of Kerrison & Leiding that they should insist upon the trial of the cause at that term and place. Accordingly, the parties appeared, and upon the regular call of the docket a trial was had. The case was argued by counsel on both sides, without objection to the...
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