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The State of Georgia v. Brailsford. 2 D.

The State of GEORGIA v. BRAILSFORD, et al.

2 D. 402.

An obligee having recovered a judgment on a bond, claimed by the State of Georgia under

an act confiscating British debts, and execution having issued, the State filed a bill in this Court setting out its title, and a temporary injunction was granted to stay the money in the hands of the marshal until the title of the State could be tried.

This was a bill in equity by the State of Georgia, against Brailsford, Powell & Hopton, British merchants, and James Spalding, a citizen of Georgia, the first three being the obligees, and the last the obligor, in a bond which the State claimed under an act confiscating certain debts. The bill set out the act of confiscation, and stated such facts as brought this debt within its terms. It also stated that a suit at law was brought on the bond by the obligees, in the Circuit Court of the United States for the District of Georgia ; that the State applied for leave to defend the action, which was refused and judgment rendered, and execution issued. It charged a confederacy between the obligor, and obligees, to deprive the State of the money due by the bond, and the facts were verified by an affidavit.

Dallas moved for an injunction.
Randolph opposed the motion.

Johnson, J. In order to support a motion for an injunction, the bill should set forth a case of probable right, and a probable danger that the right would be defeated, without this special interposition of the Court. It does not appear to me, that the present bill sufficiently claims such an interposition. If the State has a right to the debt in question, it may be enforced at common law, notwithstanding the judgment of the Circuit Court; and there is no suggestion in the bill, though it has been suggested at the bar, that the State is likely to lose her right by the insolvency either of Spalding, the original debtor, or of Brailsford, who will become her debtor for the amount, if he receives it, when in law he ought not to receive, or retain, it.

Nor does the bill state any particular confederacy, or fraud. The refusal to admit the Attorney-General as a party on the record, was the act of a competent court; and it is not sufficient barely to allege, that the defendant has not chosen to sue out a writ of error.

The case might, perhaps, be made better; but as I can only know, at present, the facts which the bill alleges, and which the affidavit supports, it is my opinion, that there is not a proper foundation for issuing an injunction.

18. C. 2 D. 415; 3 D. 1.

The State of Georgia v. Brailsford. 2 D.

IREDELL, J. I sat in the Circuit Court, when the judgment was rendered in the case of Brailsford and others v. * Spalding; but I shall give my opinion, on the present motion, de- [ * 406 ] tached from every previous consideration of the merits of the cause.

The debt claimed by the plaintiffs below was, likewise, claimed by the State of Georgia. The State applied to be admitted to assert her claim, but the application was rejected; nor has any writ of error been instituted upon the judgment. These facts, however, are only mentioned to introduce this remark, that the Circuit Court could not, with propriety, sustain the application of Georgia; because, whenever a State is a party, the Supreme Court has exclusive jurisdiction of the suit; and her right cannot be effectually supported, by a voluntary appearance, before any other tribunal of the Union. Not being a party, nor capable of resorting as a party, to the Circuit Court, it is very much to be questioned whether the State could bring a writ of error on the judgment there, even if her claim appeared on the record.

Every principle of law, justice, and honor, however, seem to require, that the claim of the State of Georgia should not be indirectly decided or defeated, by a judgment pronounced between parties over whom she had no control, and upon a trial in which she was not allowed to be heard. If, indeed, the court could not devise a mode for admitting a fair investigation and determination upon that claim, it would be useless to grant an injunction : But I think a mode may easily be prescribed, in strict conformity with the practice and principles of equity.

It was in the power of the defendant in the Circuit Court, to have filed a bill of interpleader, in order, for his own safety, to settle the rights of the contending parties ; but neither in that form, nor by instituting a suit herself, could Georgia have derived the benefit of supporting her claim in her own way, before any other than the Supreme Court. In this court, therefore, we ought now to place the State upon the same footing, as if a bill of interpleader had been regularly filed here ; which can be done by sustaining the present suit; and when the parties are all before us, we may direct a proper issue to be formed, and tried at the bar. Thus, justice will be done to Georgia, and an irreparable injury may be prevented; while the adverse party, even if he ultimately succeeds, can only complain of a short delay.

With this view, I think that an injunction should be awarded to stay the money ir. the hands of the marshal till this Court shall make a further order on the subject.

BLAIR, J. The State of Georgia seems to have done all that she The State of Georgia v. Brailsford. 2 D.

could to obtain a hearing. An application was made to the Circuit Court, in the nature of a claim, to interplead; but being refused, her

alternative, under all the circumstances of the case, is an ( 407 ) appeal to the equitable jurisdiction of the Supreme Court.

It is true, perhaps, as the counsel has suggested, that the defendant below pleaded the Confiscation Act of Georgia in bar to the action; but it is a sufficient answer to this argument, that the State was not a party; and no right can be defeated, in law, unless the party claiming it has himself an opportunity to support it.

If the State of Georgia was entitled to the bond, she is equally entitled to the money levied by the marshal in satisfaction of the bond, or rather of the judgment rendered upon it; and as the execution directs the marshal to pay the amount to the plaintiffs, below, I can perceive no other mode of preventing a compliance, while we inquire into the right of receiving the money, than that of issuing an injunction to stay it in the hands of the officer.

It appears to me to be too early, likewise, to pronounce an opi. nion upon the titles in collision; since it is enough, on a motion of this kind, to show a colorable title. The State of Georgia has set up her Confiscation Act, which certainly is a fair foundation for future judicial investigation ; and that an injury may not be done, which it may be out of our power to repair, the injunction ought, I think, to issue, till we are enabled, by a full inquiry, to decide upon the whole merits of the case.

Wilson, J. I confess that I have not been able to form an opinion which is perfectly satisfactory to my own mind, upon the points that have been discussed. If Georgia has a right to the bond, it is strictly a legal right; but to enforce a strictly legal right, the present seems, at the first blush, to be an awkward and irregular proceeding. Again : Georgia had not a right, or she had a right, to be admitted to a hearing in the Circuit Court; but in the former case it would be no ground of complaint that her application was rejected, for she is bound by the law; and in the other case, she would be entitled to bring the subject before us, as a court of law, since she was refused the exercise of a legal right.

It is true, that, under the Federal Constitution, an inferior tribunal cannot compel a State to appear as a party ; but it is a very different proposition to say, that a State cannot, by her own consent, appear in any other court than the Supreme Court. The general rule applies among all sovereigns, who, as equals, are not amenable to courts of each other; and yet I remember an action was instituted and sustained, some years ago, in the name of Louis XVI., king of

The State of Georgia v. Brailsford. 2 D. France, against Mr. Robert Morris, in the Supreme Court of Pennsylvania.

Under these impressions, I am disposed to think that the State of Georgia ought rather to have sued out a writ of error, than to have asked for an injunction. But still, in the existing * circumstances of the case, I have no objection to retain the money [ *408 ] within the power of the Court, till we can better satisfy ourselves both as to the remedy and the right.

Cushing, J. The Judicial Act expressly declares, that “suits in equity shall not be sustained in either of the courts of the United States, in any case where plain, adequate, and complete remedy may be had at law." 1 Now, if Georgia has any right to the debt in question, it is a right at law, for which, of course, the law will furnish a plain, adequate, and complete remedy. The decision of the Circuit Court, in a case to which Georgia was neither party nor privy, did not, and could not, take away either the right or the remedy of the State. Nor can Spalding, the defendant below, be made liable twice, for the same debt, without his wilful laches. For it is in his power to bring a writ of error; and then the whole merits of the claim of Georgia appearing on the record, we must decide it as a question of law, either by affirming or reversing the judgment, so as to bind us in any suit which Georgia might institute for the same cause.

Besides, the State of Georgia, notwithstanding the judgment of the Circuit Court, may bring an action of indebitatus assumpsit against Brailsford, who is a man of fortune, after they have received the money, upon the principle of Moses v. Macfarlan, 2 Bur. 1005, and with stronger reason; as in that case the parties in both courts were the same; but, in the case proposed, they would be different, and one of them has never been heard. In some form, therefore, Georgia may obtain complete redress at law.

I do not, upon the whole, consider the refusal of Spalding to bring a writ of error, which he is not compellable to bring, nor any other suggestion in the bill, as a sufficient foundation for exercising the equitable jurisdiction of the Court; and, consequently, I think that an injunction ought not to be awarded.

JAY, C. J. My first ideas were unfavorable to the motion; but many reasons have been urged, which operate forcibly to produce a. change of opinion.

The great question turns on the property of a certain bond ; — whether it belongs to Brailsford, or to Georgia ? It is put in suit by Brailsford; but if Georgia, by virtue of the Confiscation Act, is really The State of Georgia v. Brailsford. 2 D.

11 Stats. at Large, 73.

could to obtain a hearing. An application was made to the Circuit Court, in the nature of a claim, to interplead; but being refused, her

alternative, under all the circumstances of the case, is an [* 407 ) appeal to the equitable jurisdiction of the Supreme * Court.

It is true, perhaps, as the counsel has suggested, that the defendant below pleaded the Confiscation Act of Georgia in bar to the action ; but it is a sufficient answer to this argument, that the State was not a party; and no right can be defeated, in law, unless the party claiming it has himself an opportunity to support it.

If the State of Georgia was entitled to the bond, she is equally entitled to the money levied by the marshal in satisfaction of the bond, or rather of the judgment rendered upon it; and as the execution directs the marshal to pay the amount to the plaintiffs, below, I can perceive no other mode of preventing a compliance, while we inquire into the right of receiving the money, than that of issuing an injunction to stay it in the hands of the officer.

It appears to me to be too early, likewise, to pronounce an opi. nion upon the titles in collision; since it is enough, on a motion of this kind, to show a colorable title. The State of Georgia has set up her Confiscation Act, which certainly is a fair foundation for future judicial investigation ; and that an injury may not be done, which it may be out of our power to repair, the injunction ought, I think, to issue, till we are enabled, by a full inquiry, to decide upon the whole merits of the case.

Wilson, J. I confess that I have not been able to form an opinion which is perfectly satisfactory to my own mind, upon the points that have been discussed. If Georgia has a right to the bond, it is strictly a legal right; but to enforce a strictly legal right, the present seems, at the first blush, to be an awkward and irregular proceeding. Again : Georgia had not a right, or she had a right, to be admitted to a hearing in the Circuit Court; but in the former case it would be no ground of complaint that her application was rejected, for she is bound by the law; and in the other case, she would be entitled to bring the subject before us, as a court of law, since she was refused the exercise of a legal right.

It is true, that, under the Federal Constitution, an inferior tribunal cannot compel a State to appear as a party; but it is a very different proposition to say, that a State cannot, by her own consent, appear in any other court than the Supreme Court. The general rule applies among all sovereigns, who, as equals, are not amenable to courts of each other; and yet I remember an action was instituted and sustained, some years ago, in the name of Louis XVI., king of

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