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Berryman v. Sullivan et al.

Marshall answers, admitting the fact of his having four hundred dollars in his possession, collected out of the debt assigned to J. S. Berryman by Ferriday & Co., which he has ready to pay over according to decree. He disclaims all knowledge on the subject of the other allegations in the bill, and files, as exhibit 1, a copy of the assignment by Ferriday & Co. to J. S. Berryman, dated March 1, 1843; by which $3008.71 of the judgment against Hardaway is assigned to Berryman, provided he does not collect $1900 from one Holmes, in Louisiana; in which event Berryman has only the remainder.

By a supplemental answer, Mr. Marshall acknowledges the reception of five hundred dollars more from Hardaway.

J. S. Berryman answers and states, that he knows nothing of the claim of complainants against Young & Milton, but refers to the record. He admits, that Milton obtained the assignment of the judgment against Hardaway, for a debt due to him, Milton, by Ferriday & Co., but denies that the assignment was made to him for fraudulent purposes, but avers that it was made for a valuable consideration, and that neither Young nor Milton have any interest in it. That the judgment was assigned to him, in the first place, to secure him as indorser for Milton, and Young & Milton for large amounts. That in anticipation of this transfer, he has already paid two hundred dollars. That after all his liabilities for said Milton have been fully paid off, the balance of the money received from Hardaway is to be appropriated to pay debts due by Milton, and Young & Milton; enumerated in a deed of trust made by Milton to him as trustee, in April, 1842, which deed is filed with the bill. That the debts. enumerated in the deed of trust amount to about $17,000; that he has sold the property conveyed by it to him; that the amount of sales did not reach the amount of debts by $3000, which is more than he expects to get from Hardaway. The answer then enumerates the debts stated to be due in the deed of trust. They amount to $17,181, and include a debt to Thomas Young of $1700; to this list is added also the sum of $900, which he claims as compensation for acting as trustee. That he sold the property conveyed by the deed to him, on a credit, and it sold

Berryman v. Sullivan et al.

for about $15,000. That these estimates he believes to be about correct; that they are exclusive of his liabilities as indorser, which it is possible may be settled without touching this fund; that he does not expect to get more than $13,00 or $14,00 from Hardaway.

The deed of trust filed with this answer, is made on the 28th day of April, 1842, between Eben Milton and James S. Berryman, and conveys a tract of land in Kentucky, except the part on which the bagging factory of Young & Milton is erected, for a description of which part, reference is made to a deed of the same date by Young & Milton to J. S. Berryman; also another tract of land, all the horses, hogs, sheep, cattle, household and kitchen furniture, one old barouche and harness, all the crop then making on the farm of Milton, for the year 1842, which Milton was to cultivate and gather, and all his other property of every kind, except provisions for the support of Milton's family for the year; upon condition that Berryman is to hold the property thus conveyed, to pay certain specified debts, and indemnify him from certain specified indorsements, with power to sell the whole or any part of the property, when any one or more of the creditors, whose interests amount to $3000, shall request him in writing to do so. After the debts enumerated, including the one to Thomas Young of $1700, and one to himself of $1885.50, are paid, and they amount in the aggregate to $13,501, Berryman is to pay off certain other enumerated debts, part of which are secured by funds conveyed by another deed from Young & Milton to J. S. Berryman. Berryman accepts the trust and undertakes its execution.

Milton's answer was ordered to be taken from the files for want of security. It is in the papers, and admits the assignment to Berryman was for a debt due to himself, but denies fraud, &c.

There are pro confessos, on publication, against Young & Milton, and on service of process against Hardaway.

The deposition of A. W. Magowan, on behalf of complainants, proved, that he is the sub-assignee in bankruptcy of W. and R. Ferriday & Co., and has been for years familiar with their

Berryman v. Sullivan et al.

business; that Ferriday & Co. were in debt to Milton, and that in 1842, (by letter of assignment,) Milton assigned this debt, and the collaterals given by Ferriday & Co. on Holmes and Hardaway, to secure it, to Berryman. The consideration of the assignment to Berryman from Milton, witness did not know. That in March, 1843, Ferriday & Co. assigned the judgment against Hardaway to Berryman, Berryman and Milton being both present, negotiating it, to secure the debt due to Milton. This witness files two letters from Milton; one is a letter of inquiry from Milton, in 1844, about the condition of the debts; the other is in these words, viz. :—

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'Lexington, May 9, 1842. ** [6 "Messrs. W. & R. Ferriday & Co. - Just as I was about leaving Louisville, on this day week, I received your last letter to me, informing me, that out of your numerous debtors, you expected to save, through a Mr. Holmes, about $2500 for me.

"I can assure you that I never received any news that did me more good; it may be the means of procuring for my wife and eleven children a small house, out of what property I have lost in the business I have followed; since I saw you I have been hard pushed, and to secure my securities from loss I have been compelled to mortgage to them my property, and want has been staring me in the face ever since; but your letter has inspired me with hope, and I feel that I can again go on; and, for fear that some person may be disposed to get an attachment against you, I wish you to consider the debt now transferred to James S. Berryman. Very respectfully yours,

"EBEN MILTON."

Also the following letter was in evidence :

"Lexington, Feb. 16, 1844. "Messrs. Smedes & Marshall, Gentlemen, the time has passed that Mr. Hardaway was expected to pay part of the debt transferred from W. & R. Ferriday & Co. to J. S. Berryman; the debt due from Holmes, which is mentioned in Ferriday's transfer, is not yet paid, and when paid, if at all, will not exceed $1600; should that debt be made, there will have to be paid out

VOL. XIII.

7

Berryman v. Sullivan' et al.

of Hardaway's debt upwards of $1400; that much, at least, can be paid out of the first payment from Hardaway, which, when ready, I will show you the necessary documents. The main object of this letter is, to ascertain if any money has come to your hands, out of which part can be paid. Please answer.

66

Respectfully &c.,

"EBEN MILTON."

Also the following receipt in the hand-writing of Milton:"Natchez, March 17, 1845.- Received of W. & R. Ferriday & Co., nineteen hundred and sixty-eight dollars and sixtysix cents, on account of a debt due me by them of $3008.71; to be allowed as a credit on account, 11-14 July next, being the proceeds of Holmes's debt. J. S. BERRYMAN, "Per Eben Milton.”

The deposition of Robert Young proves, that Thomas Young, of the firm of Young & Milton, is the same Thomas Young secured by the deed of trust.

This was all the proof in the case.

The answers of Berryman and Milton were filed November 26, 1844. The order of publication for Young, Milton and Berryman, was granted 10th of December, 1844; on the 14th of December, 1844, the answers of Milton and Berryman were ordered to be taken from the files, "being filed in violation of law and the rules of the court." The bill was taken for confessed, June 1845, against Milton and Young, when the counsel for plaintiffs and defendants in the cause, agreed to submit it for final hearing upon the bill, answers, and proof, February 6, 1846. The cause was referred to a commissioner, who reported $1081.74 due complainants by Young & Milton, January 17, 1846, when the chancellor ordered a decree for complainants; the decree recites, that the cause was submitted upon the bill and exhibit of the complainants; the answer of the defendants, Thomas A. Marshall and James S. Berryman, and the respective exhibits thereto, and the pro confessos against Young, Milton, and Hardaway, and the proofs and depositions in the cause; the report of the commissioner was confirmed, the fund

Berryman v. Sullivan et al.

attached declared to be liable to the attachment, and Marshall ordered to pay the sum he had on hand, and execution against Hardaway directed for the residue. Berryman alone sued out this writ of error.

F. Anderson, for plaintiff in error, insisted,

1. That there was no sufficient proof assailing the validity of the assignment of March 1, 1843, to Berryman; and that Berryman's answer stood unimpeached. On this point Mr. Anderson reviewed the proof, and contended that the letter of Milton, of May, 1842, was nearly a year anterior to the assignment to Berryman, and could not therefore affect it. He also considered at length the letters of Milton, and insisted that they did not prove any thing to invalidate the assignment.

2. That the debt of $1700 to Thomas Young, secured by the deed of trust, could not be attached, because no such proceeding was authorized by the statute, How. & Hutch. 520, $ 63; inasmuch as Young was a non-resident, as well as Milton and Berryman. On this point he cited 9 Yerg. 244; Ib. 251; 3 Leigh, 306; Comstock v. Rayford, 1 S. & M. 441.

3. But it is contended, that, inasmuch as there is a fund in this state to proceed against, to wit, that in the hands of Hardaaway and Marshall, and which is coming to Berryman, who is indebted to plaintiffs in the above mentioned $1700, this will give the court jurisdiction. It is a sufficient answer to this, to say this court has not jurisdiction to say whether Berryman is indebted to plaintiffs. To do this, would be to grant a kind of double attachment; 1st, an attachment against the effects of Young & Milton, to bring them into court, to try whether they are indebted to plaintiffs; 2d, an attachment to bring Berryman into court, to try whether he is indebted to Milton & Young.

4. Let the plaintiffs first proceed against Berryman, in Kentucky, to try the question, whether by the receipt of the $1700 for Young, he has become indebted to them; and if they establish their case against him, then they may require the aid of this court, to attach a fund in this state, due to him, but not before.

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