APPENDIX

No. I.

Charge of Judge Hopkinson, in the case of The lessee of Edward Livingston and others v. John Moore and others. See ante, page 477.

THE argument of this cause has been spread over a wide surface; and matters introduced into it, by way of illustration or otherwise, which have greatly increased its proper size and difficulties. The magnitude of the interests at stake, and the high principles which have been discussed, have excited extraordinary exertions from the able and distinguished counsel who have appeared before you. These are the rights and duties of the counsel. It is the business of the court to select from the great mass, the matter most worthy of your attention, and to put it before you in as plain and simple a shape as it will admit of.

Such will be my object on this occasion; and I trust that both you and I will enter upon our duties, and endeavour to perform them, with a single eye to the authority of the laws, which we are bound to obey, and which we are placed here to maintain. If the state to which we belong has fallen into an error, and injured one of her citizens by an illegal and unauthorised act of legislation, it is here that the error must be corrected, or the wrong will be perpetual. On the other hand, we are not to deal lightly with the power and rights of a state; or to overthrow her most solemn acts in a spirit of wantonness, or in the indulgence of speculative theories and ingenious refinements. The facts of this case, supported by documentary testimony, are before us, with no contrariety in any thing material; and it is our duty to seek for the law which governs them, and so pronounce our judgment between the parties.

The title of the plaintiffs to the land in question is derived from John Nicholson; who, in the year 1794, purchased it from the commonwealth. By an agreement made between the parties in this case, it is stated that "as both parties claim under John Nicholson, the title to the premises shall be admitted to have been in him, unless divested by the alleged lien and proceedings of the state of Pennsylvania.” The defendants also claim title from the same John Nicholson. They purchased their lands severally under the alleged lien and proceedings of Pennsylvania; and bought them from the state, as the property of John Nicholson: and "as and for such estate as the said John Nicholson had and held the same at the time of the commencement of the lien of the commonwealth against the estate of the said John Nicholson." By this clause in the act of assembly directing the sales, the original contract between the commonwealth and John Nicholson is recognized a d affirmed, his right and property in the lands admitted; and the commonwealth undertook to sell to the purchasers, the present defendants, only such estate as John Nicholson held in them.

Both parties then claim to have the title and right in these lands, which John Nicholson once held, and the question now to be decided is-which of them 'as made good his claim; which of them has proved and maintained his right by the facts of the case, and the law of the land.

The original title being admitted to have been in John Nicholson, his heirs, who claim immediately from him, have and hold his rights, "unless they have been divested by the alleged lien and proceedings of the state of Fennsylvania, under which the defendants have title."

This simple view of the case brings us at once to the question we have to examine, to wit:-Have the lien of the state on this property, and the proceedings of the state to enforce that lien, divested John Nicholson and his heirs of the title and estate he once had in it; and have the title and estate of John Nicholson become vested in the defendants by virtue of that lien and those proceedings?

In pursuing this inquiry, our first step must be, to trace this lien and these proceedings from their origin to their termination; and examine whether they have brought these lands which John Nicholson once held, lawfully and rightfully in the possession of the defendants, with all the title John Nicholson had to them. If they have not done so, the defendants stand without title; they pretend to no other; the original rights of John Nicholson in the land are unchanged by these proceedings, and the plaintiff's now holding those rights, are entitled to recover.

We must turn a careful attention to some of the laws of the legislature of Pennsylvania, and settle their meaning and effect, before we consider the various acts that have been done under them. The foundation of the title of the defendants is found in the twelfth section of the act of 18 February 1785. It enacts "that the settlement of any public account by the comptroller-general, and confirmation thereof by the supreme executive council, whereby any balance or sum of money shall be found due from any person to the commonwealth, shall be deemed and adjudged to be a lien on all real estate of such person throughout this state, in the same manner as if judgment had been given in favour of the commonwealth for such debt in the supreme court." This act, 1. Gives a lien in favour of the commonwealth, upon all the real estate of any person who shall be found to be a debtor to the commonwealth, in any balance or sum of money, by a settlement of his account by the comptroller-general, confirmed by the executive council. 2. This lien is to attach to the estate in the same manner as if a judgment had been given for the debt in the supreme court.

I have not been able to satisfy myself of the meaning of the legislature in this last phrase" in the same manner as if a judgment had been given in the supreme court." It is true that at the time when this act was passed, a judgment in the supreme court extended its lien over the whole state; but as the act had previously declared that the lien under it should be on all the real estate of the debtor, throughout the state, we must presume something more was intended by the subsequent clause.

The defendants contend, that by the words, "in the same manner," &c., the legislature intended that a purchaser under this lien should hold the land in the same manner as a purchaser under a judgmert; and have the same protection against a subsequent reversal for any errors in the proceedings antecedent to the lien. If this construction be the true one, it will greatly abridge our inquiries in this cause. It closes up all the objections of the plaintiffs to the settlement of the accounts; and ratifies every irregularity, if there be any, prior to the lien. It therefore becomes necessary to examine, and, as far as we can, determine what was the meaning of the legislature in using these words-" 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 a judgment had been given in favour of the commonwealth against such person, for such debt in the supreme court." Did they mean to say that a sale made under a lien, in such manner as might afterwards be directed, for

this act made no provision for a sale, should have the same protection or immunity from errors, as was given by the law of 1705 to sales by execution under a judgment. I have suggested already, that while the act of 1785 gives to the settlement of an account the effect of a lien by judgment, it provides no mode of proceeding by which the lien is to be enforced, or the money secured by it collected. I cannot but infer from this that it was the intention of the legislature to make the debt secure by the lien: but that it was to be recovered and collected in the ordinary way of a suit, a judgment and an execution; the settlement being conclusive evidence of the debt. If this be so, then as the sale would also be by a venditioni by virtue of the judgment and levy, the purchaser would of course receive the deed of the sheriff, and have all the protection given by the ninth section of the law of 1705 to such a sale. In this view of the act no provision was necessary for the security of the purchaser, and therefore none can be intended by the words in question.

Again, the lien is given in the same manner as if a judgment had been given in the supreme court. Now a judgment in the supreme court had no special privilege or rights in this respect; but a purchase under a judgment in any other court had the same protection from disturbance in case of a reversal of the judg ment as if it had been rendered in the supreme court. On comparing the twelfth section of the act of 1785, with the ninth section of that of 1705, it will be found very difficult to connect them in the manner contended for by the defendants. By the law of 1785, the lien is put on a footing with a judgment and no more. Now the provision of the law of 1705, has no reference to the judgment, but the sale made by the sheriff, by virtue of the levy, condemnation and venditioni exponas issued from the court. It is the sale which is not to be avoided by a reversal of the judgment, but the purchaser is confirmed in his right and title to the land, and its former owner, the defendant, can demand a restitution only of the money for which it was sold. If the act of 1785 had authorized an execution to issue, on the settlement which in truth is the substitute for the judgment as regards the debt, or a sale to be under any process to satisfy it in the same manner as a sale under a judgment, the conclusion might have been fairly made that the purchaser at such a sale would stand as secure in his title as a purchaser under a judgment.

From 1785 to 1806, no provision was made to enforce the payment of the money received by the lien in any other way than by a judgment and execution to be obtained as for any other debt. In 1806, an act was passed specially for the case of J. Nicholson, leaving the collection of the debts due from all other persons to the commonwealth, still to be made in the ordinary way. In the case of J. Nicholson, for reasons very apparent on the face of the act, the legislature provided a proceeding "for the more speedy and effectual collection of certain debts due to this commonwealth," by which and another act passed in the following year a sale was ordered to be made by commissioners, as in the manner prescribed by the acts, of the lands of J. Nicholson, subject to the lien of the commonwealth." This sale differs in many respects from that authorized by the law of 1705, by virtue of a judgment and execution. The lands are to be sold absolutely, and not, as in the other case, only “where a sufficient personal estate cannot be found." No inquisition is to be held to ascertain the annual value of the land; and in other matters, it is wholly unlike a sheriff's sale; why then shall we say it is to have the effect of a sheriff's sale, in this particular, which effect is expressly given to that sale by the law which authorizes the sale in question. I am inclined to think this redundancy of expression is but a pleonasm which may occur in legislative compositions as in other works of the pen.

The full and perfect validity of this act has not been questioned-nor could be. Every government assumes, and rightfully has, the power to take care of its own revenue, to protect it by extraordinary securities, to collect it by extraordinary remedies. Without this power, and liberal exercise of it, the government might

be thrown into ruinous embarrassments, and distressing disappointments, and delays in meeting the expenses of the public service. The United States by act of congress are entitled to a preference in certain cases, over all other creditors, and even a judgment will not protect a creditor from the extraordinary right of the government for the payment of an ordinary debt.

We proceed then on the undisputed ground, that the state of Pennsylvania has taken to herself no illegal nor unusual advantage by the enactment of the twelfth section of the law of 1775, but that any balance or sum of money due from any person, ascertained and settled in the manner therein prescribed, “shall be deemed and adjudged to be a lien on all the real estate of such person throughout the state." You have observed that the settlement of the account to which the lien is given must be confirmed by the supreme executive council. This was in 1785; in the year 1790, the people of Pennsylvania made for themselves a new constitution, or form of government, and thereby the executive power of the commonwealth was vested in the governor; and the executive council of course ceased to exist.

Many acts of legislation became necessary to accommodate the laws of the state to the new government. Among others to vest in the governor the power of the executive council. On the 15th April 1791, a general act was passed which enacted that the governor of the commonwealth shall have and exercise all the powers that by any law or laws were vested in the supreme executive council. The duration of this act was limited to the 1st of August following. On the 21st of September 1791, the act of April was continued to December, and in the law of September we find the following provision-"that in all cases where accounts examined and settled by the comptroller-general and register-general, or either of them, have heretofore been referred to the executive authority, to be approved and allowed, or rejected by the governor, the same shall only for the future be referred to the governor, when the said comptroller-general and register-general shall differ in opinion; but in all cases when they agree, only the balances due on each account shall be certified by the said comptroller-general and register-general to the governor, who shall thereupon proceed in like manner, as if said accounts respectively had been referred to him according to former laws upon the subject. And provided also, that in all cases when a party or parties shall not be satisfied with the settlement of their respective accounts by the comptroller-general and registergeneral, or when there shall be reason to suppose that justice had not been done to the commonwealth, the governor may and shall, in like manner, and upon the same condition as heretofore, allow appeals, or cause suits to be instituted, as the case may require."

The meaning and construction of these provisions have formed a prominent subject of the discussion you have heard. It is my duty therefore to give you my vies of it. We must go back for a moment.

By the law of 1782, great powers were given to the comptroller-general, in the settlemer of accounts; and no appeal was allowed from his decision, or any means given by which a party aggrieved by his settlement could bring his case before the court and jury upan its facts or its law. To remedy this injury and injustice, the act of 1795 was passed. It enacts that wherever the comptroller-general shall settle an account in pursuance of the previous law and transmit it to the executive council for their approbation, if the party be dissatisfied, he may, within one month after notice given to him by the comptroller, appeal to the supreme court on certain terms not now material.

'The sixth section of the law of 1785 directs, that if the council be dissatisfied with the settlement made by the comptroller, they may direct a suit to be instituted against the party, with whose accounts they may be dissatisfied. This brief recurrence to previous laws will aid us in understanding the acts of September 1791, with one additional reference. On the 28th March 1789, an act was passed for the appointment of a register-general, and the comptroller is required to submit all

the accounts he shall adjust, before he shall finally settle them, to the examination of the register-general, and take his advice and assistance in making such settlement; and the settlements made by the comptroller with the aid and assistance of the register, are to be laid before the executive council. Afterwards by a law of April 1790, all accounts are ordered, in the first instance, to be submitted to the register, and after his liquidation and adjustment to be transmitted to the comptroller for his examination and approbation, who shall in like manner transmit them to the executive council for their final approbation. Thus we see that antecedent to the law of September 1791, the course of settling an account with the comptroller was: 1. To have it examined and adjusted by the register-general. 2. By the comptroller-general. 3. By the supreme executive council, and was not considered to be a final settlement until it was examined, adjusted and approved by all these tribunals. All the rights of appeal by the party, and of a suit by the executive on behalf of the commonwealth, remained as they were given by the act of 1798.

We now come to the act of September 1791, and the changes effected by it in the settlement of public accounts. In the first place it enacts that the reference of the accounts to the governor, or executive power, to be by him approved and allowed or rejected, shall in future only be made, when the comptroller and register shall differ in opinion. When they agree, the accounts are not to be transmitted to the governor, or in any manner referred to him for his approbation or rejection, but the register and comptroller are required to certify to the governor only the balances due on the one side or on the other on each account. It is, however, provided that if the party shall be dissatisfied with the settlement, he shall have an appeal in like manner and upon the same conditions as heretofore; and so on the other hand, if the governor shall suppose that justice has not been done to the commonwealth he may cause a suit to be instituted against the party, and in either case the whole account will be investigated and recommended by a court and jury. But if the party does not take his appeal in the manner prescribed, and the governor does not cause a suit to be instituted, both the commonwealth and the party are presumed to acquiesce in the settlement made by the register and comp troller, and it is finally conclusive upon both.

Such was the law of the commonwealth for the settlement of public accounts, when the account of J. Nicholson, now before the court, was adjusted and settled. We are now prepared to approach the question of lien. The right of a commonwealth to a lien on all the real estate, throughout the state, of any person for the sum or balance found due, being given by the law of 1785, we have to inquire whether such a balance or sum of money was found due from J. Nicholson to the commonwealth, in such manner and form as to give this lien to the commonwealth on all the real estate of J. Nicholson throughout this state for such balance or sum. In other words, were the accounts of J. Nicholson with the commonwealth, so settled, according to the laws of this state, and the balances or sums alleged to be due from him so found, as to entitle the commonwealth to the lien given by the twelfth section of the act of 1785. Was there, on the 31st of March 1806, when the act was passed" for the more speedy and effectual collection of certain debts dne to this cominonwealth;" was there a debt due from J. Nicholson to the commonwealth; and was there a valid and subsisting lien on his real estate for the security and payment of that debt?

The defendants allege the affirmative of both these questions. And they rest their proof, 1. On the settlement of certain accounts of J. Nicholson, in 1796. 2. On two judgments rendered against him by the supreme court of the state in favour of the commonwealth: one on the 18th of December 1795, the other on the 21st of March 1797.

1. The accounts.

Three having been laid before you, and they were produced by the plaintiffs in the opening of the case, I shall take them in their order of time.

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