Opinion
FEBRUARY, 1803.
The Attorney-General opened the cause on the part of the United States, and was going on to show that the deed was fraudulent, as to creditors, upon general principles of law, (a ground not taken in the court below,) when he was stopped by an inquiry from the court, whether there was any provision in the act concerning the district of Columbia, by which the case was taken out of the operation of the nineteenth section of the judiciary act of 1789, which required a statement of the facts to accompany the record. Upon recurring to the act of congress, 27th February, 1801, concerning the district of Columbia, c. 86. s. 8. it was found that writs of error were to "be prosecuted in the same manner, under the same regulations, and the same proceedings shall be had therein, as is, or shall be, provided in the case of writs of error on judgments, or appeals upon orders or decrees rendered in the circuit court of the United States." Upon which the court said, that the decisions on the act of 1789, s. 19. had been, that unless a statement of facts appeared upon the record, they could not say there was error. 3 Dallas, 337. Jennings v. Brig Perseverance. It is true that the act of February 13, 1801, c. 75. s. 33. remedied the evil, but that act was repealed in 1802, so that the law now stands as it did before the act of 1801. And the act concerning the district of Columbia, by saying that writs of error shall be prosecuted in the same manner as is, or shall be, provided, c. places this case under the law of 1789. Whatever might be the present opinion of the court, if this were the first time of being called upon to give a construction to that clause of the act, yet the question has been solemnly settled. One legislature has taken cognisance of the construction given by the court, and has provided for the case, but another legislature has repealed that provision and thereby given a subsequent legislative construction, or at least shown such a legislative acquiescence under the construction which this court formerly gave to the act, as is now conclusive.
Mr. Lincoln.
At the request of the Attorney-General, the writ of error was dismissed.
Congress being in session at this time, an act was introduced and passed, containing a clause similar to the 33d section of the act of 13th February, 1801, respecting writs of error and appeals in cases of equity and maritime jurisdiction, c. Laws of U.S. vol. 6. p. 315. c. 93, 3d March, 1803.
THIS was a writ of error to a decree of the circuit court of the district of Columbia, sitting as a court of chancery.
The case was, the Colonel Fitzgerald, in the year 1794, was appointed collector of the customs for the port of Alexandria, and gave bond to the United States in the penalty of 10,000 dollars, with R.T. Hooe as his surety, for the faithful performance of the duties of the office. In consequence of misapplication of large sums of money by the chief clerk, who was intrusted with almost the whole management of the business, Col. Fitzgerald became deficient in his accounts with the United States to the amount of 57,000 dollars. After this fact was discovered he executed a deed of trust of part of his real estate to trustees, to be sold to indemnify Hooe from the demands of the United States against him, as security of Fitzgerald, and also to secure him against sundry notes which he had endorsed for him at the bank of Alexandria, as well as to enable him to take up further sums at the bank, as his exigencies might require. After the death of Col. Fitzgerald, the trustees advertised the property for sale, and the United States obtained an injunction to stay the sale, alleging that by the acts of congress, they were entitled to a prior lien upon the estate of their debtor; and that the deed, as to them, was fraudulent. In the court below, the claim of the United States was rested altogether upon the prior lien created by the act of congress; and the court being of opinion that the act did not create a lien on the real estate, and that there did not appear to be any fraud in the transaction, dissolved the injunction, with costs, and ordered 10,000 dollars, part of the proceeds of the sale, to be paid into the treasury of the United States, in satisfaction of the bond in which Hooe was the surety, and the residue, after paying the notes due at bank, to be paid into the treasury of the United States, in part satisfaction of the balance due from the estate of Fitzgerald; it having been proved to the satisfaction of the court, that the money, arising from the notes discounted at the bank, had been before paid by Fitzgerald to the United States.
To reverse this decree, the present writ of error was sued out by the attorney for the United States.
The decree of the court below did not state the facts upon which the decree was founded; and although the record contained the bill, answers, exhibits, and all the evidence which was before the court below, yet no statement of facts, according to the provision of the judiciary act of 1789, c. 20. s. 19. was made by the parties or by the court.