V.

dollars. After this fact was discovered he executed a U. States deed of trust of part of his real estate to trustees, to R. T. Hooe. 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.

The Attorney-Generál(a) 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 ge

(a) Mr. Lincoln.

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V.

U. States neral principles of law, (a ground not taken in the R. T. Hooe, 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.

At the request of the Attorney-General, the writ of error was dismissed.(a)

(a) 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, 180, respecting writs of error and appeals in cases of equity and maritime jurisdiction, &c. Laws of U. S. vol. 6. p. 315. c. 93. ad March, 1803.

HEPBURN AND DUNDAS v. COLIN AULD.

THIS was an action of debt brought by Hepburn & Dundas against Colin Auld in the circuit court of the district of Columbia, for the penalty of an agreement dated 27th September, 1799, between the plaintiffs, merchants of Alexandria, and the defendant, as agent for John Dunlop & Co. merchants in Glasgow. The agreement recites, that whereas the plaintiffs have had extensive dealings with Dunlop & Co. in the course of which the former appear to have fallen in debt to the latter, by the accounts by them exhibited, some articles of which accounts having been objected to by the plaintiffs, they had agreed with the said. agent to submit all matters in dispute to arbitration. And whereas the plaintiffs, by an article of agreement between them and a certain William Graham, dated 12th March, 1796, did covenant with him (for the consideration of 18,000 dollars to be by him paid to them at certain times in the said article expressed) to convey to him the said Graham, his heirs and assigns 6,000 acres of land on the Ohio; but the said Graham failing to make the first payment upon the day stipulated, the plaintiffs considered the said contract as thereby annulled, and, in consequence thereof, brought an ejectment to recover possession of the land, which they had permitted Graham to occupy, which ejectment had been abated by his death, and another ejectment had been, or was about to be, commenced.

The indenture then witnesseth, that each party covenanted to furnish their accounts to the arbitrators so as to enable them to make their award by the 1st day of January then next, being the time stipulated by the arbitration bonds. That Auld covenanted that he, or the agent of Dunlop & Co. would, on the 2d day of January then next, accept and take, of the plaintiffs, the amount *which should be awarded to Dunlop & Co. in bills of exchange of a certain description, or in any money which might by law be a legal tender; and on such payment being made in either way, give the plaintiffs a full receipt and discharge of all claims and demands of Dunlop & Co. against them. That the

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Auid.

Hepburn & plaintiffs covenanted, that in case they did not on the 2d of January then next, pay to the defendant, or the then agent of Dunlop & Co. the amount of the award, in bills or money, they would, on that day, assign and transfer to the defendant, or the then agent of Dunlop & Co. in the fullest manner, the aforesaid contract entered into by them with Graham for the sale of the land, and all and every interest, right and claim, of whatever kind, of the plaintiffs arising out of and from the said contract; with full power to proceed and act thereupon and therein as the defendant or the then agent of Dunlop & Co. should think proper; and that they would for that purpose give him a full and ample power of attorney irrevocable to pursue in their names, if necessary, all legal ways and means, either to recover the possession of the land, or to enforce payment of the 18,000 dollars and interest, whichever of the measures he might be inclined to pursue; and that in case they should so assign the said contract, they would not thereafter in any manner interfere with the measures he might choose to pursue, either for the recovery of the lands, or to enforce the payment of the purchase-money. And that whenever the ejectment should be judicially determined, or settled by compromise, they would convey the lands to the person who by such determination or compromise should be acknowledged to be entitled to them. And that in case the said purchase-money, which, with interest to the said 2d day of January, would amount to 21,112 dollars should not prove sufficient to satisfy the award, they would on that day pay the balance to the defend'ant, or the then agent of Dunlop & Co.

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And the defendant covenanted that in case it should not be convenient for the plaintiffs to pay the amount of the award in bills, or money, on the 2d day of January, he would accept and take an assignment of the said Graham's contract, at 21,112 dollars towards the discharge of the said award; and that in case it should exceed the amount of the award, he would, at the time of making the said *assignment, pay them the excess. For the faithful performance of these articles, the parties bound themselves to each other in the penal sum of 45,000 dollars. The sum of 21,112 dollars exceeded the amount of the award, by the sum of 4941.

69. 7d. Virginia currency. For the non-payment of this excess the present action was brought by the plaintiffs, after having tendered an assignment of Graham's contract and a power of attorney, which was refused by the defendant. There were four issues in fact, but to the 5th plea there was a general demurrer and joinder. Judgment below being in favour of the defendant upon of this demurrer, the issues in fact were not tried, and the plaintiffs sued out the present writ of error.

The fifth plea was as follows: "and the said defendant by virtue of the act, &c. and by leave of the court, for further plea, protesting that the said deed of assignment of the contract aforesaid, with the said William Graham, so as aforesaid pretended to have been executed, sealed and tendered by the plaintiffs on the 2d day of January in the year 1800, was not a good, lawful and sufficient assignment thereof, according to the true intent and meaning of the said articles of agreement between the plaintiffs and defendant, he, the defendant, saith, that the said deed of assignment was not tendered to him unconditionally, but upon the condition that the said John Dunlop & Co. should first sign, seal and deliver, by the said Colin Auld, their attorney, on the same day, unto the plaintiffs, a release and acquittance of all the claims and demands of the said John Dunlop & Co. against the said plaintiffs; and the said defendant then and there refused to comply with the said condition, and the said plaintiffs then and there refused to deliver the aforesaid deed of assignment to the said defendant, unless he complied with the condition aforesaid; and this he is ready to verify; wherefore he prays judgment, whether the plaintiffs their action aforesaid against him ought to have and maintain," &c.

Swann, for the plaintiffs in error.

It will be perceived by the agreement, that the plaintiffs had the choice of three modes of paying the award; *1. By bills of exchange; 2. By cash; and, 3. By an assignment of Graham's contract.

It is true, that the words are, that the defendant will take the assignment "towards" the discharge of the award. But the reason of using the word "towards" is plainly, because the amount of the award not being

Hepburn &

Dundas

V.

Auld.

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