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Jesse B. Clements, Plaintiff in error, v. Daniel Berry U.S. 398 (1851)

handle is hein.slavery/ussccases0255 and id is 1 raw text is: 398 SUPREME COURT. Clements v. Berry. JESSE B. CLEMENTS, PLAINTIFF IN ERROR, V. DANIEL BE-RY. Where the marshal of the United States had levied an execution upon certain prop. erty under a judgment in the Circuit Court, which was taken out of his custody by a writ of replevin issued by a State court, and the Supreme Court of the State decided adversely to the claim of the marshal, it is within the jurisdiction of this court to review that dision. It is the uniform practice of the federal and State courts in Tennessee to test exe- cutions as on the first day of the term ; and as between creditors, the lien attaches equally to all the judgments entered at the same term. Where a judgment by default, in an action upon a promissory note, was entered upon the 8th day of the month, but not fully entered up as to the amount due un. til the loth, and upon the loth, a few minu:tes before the court opened, the debtor recorded a deed of trust conveying away all his property, this deed cannot defeat the lien of the judgment. The judgment by default created the lien; it was a mere clerical duty to calculate and enter up the amount due. To note the precise time when deeds are left for record is attended with no difficult) as between deeds; but to settle the exact comparative creation of a lien between a recorded deed and a judgment by a court is attended with much embarras. ment. The timepiece of the register cannot settle the validity or invalidity of a judgment lien. The process act of 1828, passed by Congress, refers to State laws for the creation and effect of liens; but the preparatory steps by which they aie created depend upon the rules adopted by the United States courts. Tis case was brought up from the Supreme Court of Ten. nessee, by a writ of error issued under tie 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 Clem. ents, 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 an 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 Ins- keep, Moulton, & Wopdruff, brought an action of debt against Charles F. Berry, a citizen of the State of Tennessee, and resi- dent of Nashville, in the Circuit Court of the United States for the District of Middle Tennessee, upoif several notes of

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