Edward Livingston v. John Moore

• Decision Date: 01 January 1833
• Parties: The Lessee of EDWARD LIVINGSTON and others, v. JOHN MOORE and others
• Court: U.S. Supreme Court

32 U.S. 469

7 Pet. 469

8 L.Ed. 751

The Lessee of EDWARD LIVINGSTON and others, v. JOHN MOORE and others.

January Term, 1833

Error to the Circuit Court for the Eastern District of Pennsylvania. In the circuit court, the plaintiffs in error instituted an ejectment for a tract of land, in the county of Franklin, in the state of Pennsylvania. They showed title to the land, as the heirs of John Nicholson, who was seised of the same, at the time of his death, under a warrant, survey and return of survey, and payment of the purchase-money to the state.

The title of the defendants was regularly derived from a sale of the lands of John Nicholson, made under authority of the state of Pennsylvania, towards satisfying the lien claimed by the state, for the debts due by John Nicholson, arising from his defalcation as the comptroller-general of the state. The constitutionality and validity of that lien were denied by the plaintiffs.

On the 13th of April 1782, John Nicholson was, by an act of the legislature of Pennsylvania, appointed comptroller-general of the state, and was intrusted with large powers for the collection of the debts due to the state, the settlement of public accounts, and the management of the funds of the state. Mr. Nicholson acted as comptroller for twelve years, during which time he was impeached, tried and acquitted. He, afterwards, on the 19th of April 1794, resigned the office.

By accounts stated, on the 19th of November 1796, large balances were found to be due by Mr. Nicholson to the state of Pennsylvania. On an account, No. 1, headed, 'Dr., John Nicholson, account in continental certificates with the state of Pennsylvania, Cr.,' the balance was $51,209.22; and on another account, No. 2, headed 'Dr., John Nicholson, account, three per cent. stock, in account with the state of Pennsylvania, Cr.,' the balance was stated to be $63,731.06. The original accounts were given in evidence, on the trial in the circuit court, and also counterparts of them, signed by the respective officers, upon which were indorsements, one in the handwriting of Mr. Nicholson, the other in that of his counsel, in a suit instituted against him for the recovery of the debts due to the state.

A suit was commenced in the supreme court of Pennsylvania, by the state, against John Nicholson, to September term 1793, for the loss sustained by the state on certain certificates, which it was alleged he had improperly subscribed; and a verdict was obtained against him, on the 18th of December 1795, for 4208l. 8s. 10d. No execution was ever issued on this judgment.

To September term 1795, another suit was instituted by the state of Pennsylvania against John Nicholson, being an action of trover for certain continental certificates and funded stock of the United States. Judgment was entered in this suit, on the 20th of March 1797, on the following agreement, signed by the attorney-general of the state, and by the counsel for the defendant.

'21st of March 1797: By agreement filed, the judgment is for the sum of $100,390.89, rating the stock as follows, six per cent. at sixteen shillings and nine pence in the pound; three per cent. at ten shillings; militia certificates at fifty per cent.; and that, in the set-off, the defendant be allowed three months to point out any errors, to the satisfaction of the comptroller and register-general, such errors to be deducted from the sum for which judgment shall be entered. Certificates and receipts to be credited also, with the charges of the funded debt. Errors against the commonwealth, if any, also to be corrected. The sum for which judgment is now entered, to be altered by the subsequent calculation of the comptroller-general alone. Supreme court costs, taxed at $35.35.'

Executions were issued on the judgment, in the year 1798, and afterwards, in 1803, to many counties in the state, and proceedings to condemn the lands of the defendant took place. Between the 8th of March 1796, when the first settlement of the accounts of John Nicholson was made, and the 21st of March 1797, when the state judgment was entered, many judgments were obtained by the private creditors of Mr. Nicholson, which remained unsatisfied on the records. On some of these judgments, executions were issued and levies made on the real estate of the defendant, prior to the executions levied by the state on the same lands. Mr. Nicholson was arrested, under executions by private creditors, and died in prison, in December 1800. His heirs were then minors, and they all left the state, prior to 1804.

The legislature of Pennsylvania passed, at different periods, laws for the settlement of accounts, and the collection of debts due to the state. By an act passed on the 18th of February 1785, it was provided, 'that the settlement of any public account by the comptroller, and confirmation thereof by the supreme executive council, whereby any balance of sum of money shall be found due from any person to the commonwealth, shall be deemed and adjudged to be a lien on all the real estate of such person, throughout this state, in the same manner as if judgment had been given in favor of the commonwealth, against such person, for such debt, in the supreme court; and if, after an appeal from the said settlement of accounts by, or award of, the said comptroller-general, and confirmation thereof by the supreme executive council, the said settlement shall be donfirmed, the said supreme court shall award interest thereon, from the date of the confirmation of the said settlement of account, by the supreme executive council, and costs to be paid by the appellees.' By the sixth section of this act, if the governor is dissatisfied with a settlement, or of opinion, that a legal discussion will tend to the furtherance of justice, he may direct a suit, which shall be proceeded in as in other civil actions. By an act passed 1st of April 1790, the office of register-general having been created, all accounts were first to be settled by bim, and afterwards examined by the comptroller-general, and then transmitted to the executive council for its approbation. And by the fifth section, all settlements, under this act, shall have the same force and effect, and be subject to the same appeal as those made formerly by the comptroller-general. After the passage of these acts, the constitution of the state was changed, and the executive power was vested in a governor, instead of the executive council. On the 14th of January 1791, an act was passed, by which all duties directed to be done by the president and executive council, shall be done by the governor. This act was limited to the end of the session.

On the 13th April 1791, the act of 1st April 1790, was continued to the end of the then session; but with a proviso, that in all cases where accounts examined and settled by the comptroller and register, or either of them, have heretofore been referred to the executive authority, to be by it approved and allowed, or rejected, the same shall only in future be referred to the governor, when the comptroller and register shall differ in opinion; but in all cases where they agree, only the balances due on each account shall be certified by the said comptroller and register to the governor, who shall thereupon proceed in like manner, as if the said accounts had been referred to him according to the former laws on the subject; and provided always, that in all cases when the party or parties shall not be satisfied with the settlement of the accounts by the comptroller and register, or when there shall be reason to suppose, that justice has not been done to the commonwealth, the governor may and shall, in like manner, and upon the same conditions as heretofore, allow appeals, or cause suits to be instituted, as the case may require. By the act of 28th March 1792, this law was continued until the end of the next session. By two other acts, it is continued to the end of the session of 1793-94.

An act was passed, 22d April 1794, reciting, that under the old constitution, acts were passed, vesting powers in the executive council or president, and that it was expedient such powers should be vested in the governor, which enacts, 'that in all cases where, by the laws of the commonwealth, the supreme executive council, or the president or vice-president thereof, is mentioned as having power and authority to carry the same into effect, the governor for the time being shall be deemed and taken to be in the place and stead of the same supreme executive council, or the president or the vice-president thereof, and shall have and exercise all the powers in them, or any or either of them, vested, unless such powers have been, and are by law, vested in some other officer or officers, person or persons, or shall be inconsistent with the provisions contained in the existing constitution of the commonwealth. By this act, all accounts are in the first instance to be submitted to the register, who shall adjust and send them to the comptroller, who, if he approve the settlement, shall return the same to the register. But if he disapprove, and they cannot agree, shall transmit the same to the governor, who shall decide: Provided, that in all cases where the parties shall be dissatisfied with the settlement of their accounts, an appeal shall be allowed.

On the 31st of March 1806, an act was passed by the legislature of Pennsylvania, entitled 'an act for the more speedy and effectual collection of certain debts due to this commonwealth.' The following is a summary of the first ten sections of that act. § 1. Commissioners appointed, with powers to procure copies of deeds and other writings, relating to the real estate of John Nicholson. § 2. The commissioners to receive, on application, copies of all necessary papers, from the land-officers, without fees. § 3. To ascertain, as near as may be, the quality and extent of the estate of John Nicholson in each county, subject to the lien of the...