
    The State of Georgia versus Braislford, et al.
    
    THIS was a bill in equity filed by “ His Excellency Edward Telfair, Efq. governor and commander in chief in and over the ftaie of Georgia, in behalf of the faid State, complainant againit Samuel Brailsford, Robert Wm. Powell, and John Hopton, merchants and co-partners, and James Spalding, furvi-ving partner of Kelsall ⅛* Spalding, defendants. The bill fet forth the following cafe:—“ That on the 4th of May, 1782, the State of -Georgia being then free, fovereign and independent, eriadled a law entitled. « An a£l for inflicting penalties on, and 5 confifcating the eftatesof, fuchperfons as are therein declared 
      * guilty of treafon, and for other purpofes therein mentioned.’ That, among other things, this law contained the following claufes:— And whereas there are divers eftates and other pro- * perty within this State, belonging to perfons who have been de- « dared guilty, or convibled, in one or.other of the United * States, of offences which have induced a confifcation of .their * .eftates or property within the State of which they were citi- •* zens : Be it therefore enabled by the authority aforefaid, that * all and lingular the eftates both real and perfonal, of perfons under this deforiptibn, of whatfoever kind or nature, toge- « ther with all rights and titles, which they may, do, or ihall «• hold in law or equity, or others in truft for them, and alfo all « the debts, dues and demands, due or. owing to Britilh nier- « .chants, or others, refiding in Great Britain, (which fhall be ap- * propriated as herein after mentioned) owing or accruing tp « them, be confifcated to and for the ufe and benefit of this * State, in like manner and form of forfeiture as .they were * fubjebled to in the States of ■ which they refpebtively were ci- « tizens, and the monies arifing from the fales which ihall take « place by virtue, and in purfuance of, this aft,-to be ap- * plied to.fuch ufes and purpofes, as the legillature ihall here- after direbh’
    ‘ And be it further enabled, that all debts, dues and demands, * due or owing to merchants or others refiding in Great Britain, « be, and they are hereby fequejlered, and the comiffioners ap- « pointed under this abt, or a majority of them, are hereby em- «. powered to recover, receive, and depofit the fame in the treafu- « ry of this State, in the fame manner, and under the fame regu- * lations, as debts confifcated,.there to remain'for the ufe of this * State, until otherwife appropriated by this or any future houfe * of Affemhly.’ •
    * And whereas there are various perfons, fubjebls of the king < of Great Britain, poffeffed of or entitle'd to eftates real, and * perfonal, which juftice and found policy require ihould'be ap- * plied tq the benefit of this State; Be it therefore enabled by « the authority aforefaid, That all and lingular the eftates, real * and perfonal, belonging to perfons being Britilh fubjebls, of * whatfoever kind Or nature, which they may be poffeffed of, ex- * cept as before excepted, or' others in truft for them, or that * they are or may, be entitled to in law or-equity, as'alfo all * debts, dues, ot demands, owing or accruing to them, be eon- * fifcated to apd for the ufe' and benefit of this State, and the * monies arifing from- the fales. which- ihall take place by virtue * of, and in purfuance of this abl, to be applied to.fuch ufes and *■ purpofes as the legillature ihall hereafter direct.’
    “ That by the operation of thefe claufes, all the debts, dues,. and demands,, of die citizens .of- Georgia to perfons, .who had. been fujéfted to the penalties of confifcation in other States,' and of Britiih. merchants and others refiding in Great Britain, and of all other Britiih fubje&s, were veiled in the faid State.
    
      “ That James Spalding, a citizen, of Georgia', and furyiving có-partner of Kelsall (s’ Spaldings was' indebted to the defendants in the penal fum of ¿'7058. 9f 5d. upon a .bond dated the-of- 1774» which debt, by virtue of the faid recited law, was transferred from the obligees and veiled in the State :— Brailsford being a native fubjedl of Great Britain⅞ conftantly re-iiding there from the year 1767 ’till after the palling of the law; Hoptoii’s eftate real and perfonal, (debts excepted) having, been exprefsly confifcated by an a££ of the legiilature of South Garq-lina ; and Powell, coming within the defcription of perfons, whofe eftates real'and perfonal (debts excepted) were alfo con-fifcated by a£ts of the legiilature. of South Carolina, if after refilling to take the oath of allegiance, ..they returned to the State.
    “ That an a ¿lion-had been brought upon the bond,by Brail.r-fori, Powell and Hopton., againit James Spalding, as forming partner of Kelsall (s’ Spalding, in the circuit court for the dif-tn£l, of Georgia, of term, 1791, in which a ¿lion there -was a plea, demurrer to the plea, joinder in demurrer, and judgment thereupon for the plaintiffs.
    “ That the State had never reliflquiihed its claim to this debt, but, on the contrary, had aflerted, it by divers a£ts of the Legiiktive, Executive, and Judicial, departments-, and, particularly; by directing the Attorney General to apply for a.rule,'«to, be admitted to affert the claim, in all-forts brought in any court, for debts within -the defcrjptions of. the confifcation laW above-cited.
    “ That the Attorney .General applied to the Circuit court for the. admiifion of the State, as a party, to defend its claim in the faid fuit of Brailsford and .others verfus Spalding, then depending there, which application was' rejefted ;' and that in that fujt, as well as divers .other fuits, recoveries were had againft citizens of the fiate by Britiih merchants,, for debts within the defcriptions of the confifcation law, upon the foie principle of debtor and creditor, and without any reference to the right and claim of the fiate.”
    The- bill proceeds to charge a confederacy between the parties to'the 'foit in the circuit court to defraud the State $ and that in purfuance thereof the plaintiffs had iilited execution a-gainft. the defendant, and the defendant had confederated with them not to take out a writ of error; fo that the defendant’s property will be levied on, and difpofed of, and the State will be defrauded of its juft clairp thereon.
    • The bill then foggefts the general foundation for the • jurif-diclion on the equity fide of the court j—puts the proper interrogatories;—and concludes with praying “ that any levy, or farther levies, under the faid execution, and any fales in purfuance of a levy, and any monies already raifed, or that may be raifed thereon, may be flayed in the hands óf thé marihall of the faid Circuit Court, by an injunction from-this honorable court. And that the faid marihall be directed to pay fuch fum, or funis, raifed as aforefaid, to the treasurer of the faid State of Georgia, to and for the ufeof the fame, and that the faid James Spalding be decreed to pay to the faid treafurer the balan.ee which may be due •on the bond aforefaid for .the ufe aforefaid. And that the faid State may be farther or otherwife relieved, in all arid lingular the premifes, as the nature and' circumftances of the cafe' íhall require,- and as to the' coujt íhall feem meet.’*
    "With the bill, there was filed an affidavit, made by Mr. John-Whereat (the agent for Georgia)'affirming that the allegations therein contained are true and Dallas, for the State, moved that an injunction might iffue, to the Circuit court, to ftay further proceedings, and alfo to the marihall of the Georgia dif-trift, to ftay the money in his hands, if he ftiould have levied, ■or íhall levy, the fame, on any execution iffued in the caufe of Brailsford et al. verfus Spalding.
    
    The motion was oppofed by Randolph, for the defendants; and after argument, the Judges delivered their opinions feriatim, on the nth of Augitf, 1792.
   Johnson, fif ice.

In order to fupport a motion for an injunction, the bill Ihould fet forth a cafe of probable right, and a probable-danger that the right would be defeated, without this fpecial interpolition of the court; It does not appear to me, that the prefentbill fufficiently claims fuch an interpolition. If the State has* a right to the debt in queftion, it may be enforcedat common law, notwithftanding the judgment of the Circuit court; and there is.no fuggeftion in the bill, though it'has been fuggefted at the bar, that the State is likely to lofe her right by the infolvency 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 ftate any particular confederacy, or fraud. The refufal to admit the Attorney General as a party on the record, was the. aft of a competent court; and-it is not fuffic'ient barely to alledge, that the defendant has not chofen to fuc out a writ of error.

The cafe might, perhaps, be made better; but as I can only kndw, at prefent, the fafts which the bill alledges, and which the affidavit fupports, it is my opinion,-that there is not a proper foundation for uTuing an injunction. .

Iredell-,, Jif ice.

'I fat in the Circuit court, when, the judg-rtieiit was rendered iii the cafe of Brailsford and others verjus Spalding; but I ih'all give my opinion, on the prefent motion, detached- from every (previous confideration of the merits of the c'aufe.. ; .

,The debt claimed by the plaintiffs below, was, likewife, claimed by the Staté'of Georgia. The State applied to be admitted to ailert her claim, but fhe application was rejedted ; nor has any writ of error been inftifuted upon the judgment. Thefe fa£tsr 'however, are only mentioned to introduce this remark, that th.e Circuit court could not, with propriety, fuftain' the application of Georgia'; becaufe, whenever a- State is á party, the Supreme court- has exclufive jurifdidtion of the fuit ; and. her- right cannot be efFedtuálly fupported, by a voluntary appearance, before any other tribunal of the Unions’ Not being a party, nor capable of reforting as a party, to the Circuit court, it is v^ry much to be queftioned whether the State could bring'» writ of error on the judgment there, even if her claim appeared on the record.-

Every principle of law, juftice, and honor, however, feem to require, that jhe claim of the State of Georgia ihould not be, inr diredlly, decided, or defeated, byajudgment pronounced between parties, over whom fhe had no controul, and upon a trial, in which fhe was: not allowed to be heard. • If, indeed, the court could not devife.a mode, for admitting a fait inveftigation and determination upon that cla'im, it would be ufelefs to grant an injunction : ⅛ But I think a mode may eafily be preferibed, in itridt conformity with the'pradticeand principles of equity.

It was in the power of the deTendant in the Circuit court, to have filed a bill of interpleader,- in order, for his own fafety, to-fettle .the rights of the contending .parties; but neither-in that form, nor by inftituting a fuit herfelf, could Georgia have derived the benefit of fuppo.rting her claim, in her own way, befpre any other -than the Supreme court. In this court, therefore, we ought now to place the State upon the fame footing, as if a bilí of interpleader Rad been regularly filed here; which can be done by fuftaining the prefent fuit; and when the parties are all before us, we. may''direct a, proper iflue to be formed, and tried at, the bar. Thus, juftice will be done to Geergia, and an irreparable injury may be prevented; while the adverfe party, even if he ultimately fucceeds, can only complain of a fliort delay.

. With this view, I think, that an injundtion ihould be awarded to ftay.the money in the hands of the -marfhall, till this court £hall make a further order on the fubject. -

BljuR, Juftice.

The ■ State of Georgia feems to have done all that fhe could to obtain a hearing.An application was made to" the Circuit’Court, in the nature¡of a claim to interplead '; but being refufed, her alternative, under all .the circumftancés of the cafe,-¾ an appeal to the equitable. juriCdidlian of the1 Supreme court. It is true, perhaps, as the counfeí has fuggefted, that the defendant below pleaded the confiication aft of Georgia in bar to the aftion; but it is a fufficient .anfwer to this argument, that the State was not a party; and no right can be defeated,, in law, unlefs. the party claiming it, has himfelfan opportunity to fuppo'rt it.

If the State of Georgia was entitled to the bond, ffie is equally-entitled to the money levied by the marihall in fatisfaftion of the bond, or'rather of the judgment rendered upon it: Andas' the execution direfts the marihall to pay.the amount to the plaintiffs bélow, I can perceive no other mode of preventing a compli-⅛06, while we enquire into the right of receiving the'money,' than that of iffuing an injunftion to ftay it in the hands óf the officer. -

It appears to me to be too early, like wife,pronounce an opinion upon the titles in colliíion; fince it is enough, on a motion of this kind, to íhew a colorable title.- The State of Georgia has. fet up her confiication aft, which certainly is' a fair foundation for future judicial inveftigation; and that an injury ni ay not be . done, which it may be out of our power to repair, the injunftion ought, I think, to iffue, till we are enabled, by a, full enquiry, to decide upon the whole merits-of-the cafe.

Wilson, JuJHce.

I confefs, -that -I have not been able to form .an opinion which is perfeftly fatisfaftory to my own mind, upon the points that have been difeuffed. If Georgia has a right to the bond, it is ftriftly a legal right; but to enforce a ftriftly legal right, the prefent feems, at the fitil bluffi, to ½ an '.awkward and irregular proceeding. Again : Georgia had not a right, or ihe had a right, . to be admitted to a hearing in the Circuit court: but, in the former cafe, it would be no ground of complaint, that her application wasrejeftedq for, ihe is bound by the law; and in the other cafe, ihe would be entitled to bring the fubjeft before us, as a court of law ; fince fire was refufed the exercife of a. legal right.

It is true, that, under the Federal Conftitution, an Inferior tribunal cannot compel a State to appear-as a party; but it is a-very different proportion to' fay, that a State cannot, by her oWa confent, appear in any other court, than' the Supreme court. The general rule applies among all fovereigns, --who, as equals, are not amenable'to courts of each other;- and yet I remember an aftion was inftituted and fuftained, fome years ago, in the name of Louts XVI. king of France, againft -Mr. Robert Morris-, in the Supreme court of. Pennfylvania.

■ Under thefe impreilions, I am difpofed to think, that the State' of Georgia ought rather to have fued out a writ of error, Shan to have aflsed for an-injunftion; But flail,' in.the exifting circumftances of the cafe, I have no objection to retain- the mb-ney witliin the- power of the qourt, ’till we can better fatisfy ourfelves both as to the remedy and.the right.

Cushing, JuJlice.

The Judicial aft expreisly declares, that “ fuits in equity ihall not be fuftained, in either of the courts of the United Státes, in any cafe where.plain, adequate,' and. complete remedy may be had at law.” Now, if Georgia -has any right to the debt in queftxon, it is a right'at law, for which, of courfe, the law will furniíh a plain, adequate, and complete remedy. The.decifion of the Circuit dourt, in a cafe to which .Georgia’1was neither..party -nor privy,- did nót, 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 fame debt, without his wilful laches. For, if 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 mult decíde-it as a queftion of law, either by affirming or reverfing the judgment, fo as to bind us in any fuft, which Georgia might inftitute for the fame caufe. '

Eefides, the State of Georgia (notwithftanding the judgment of the Circuit court) may'bring'an aftion oi-.indehitatus-affumpfit againft Brailsford (who is a'man of fortune), after they have received the money, upon the. principle of Mofes 'verfus M’.Far- ¡and, - and with ftronger . reafon; as in that cafe the parties, in 'both courts, were the fame; but, in the cafe propofed, they would' be different, and one of them has never been heard. ín fome form,, therefore, Georgia may obtain compleat redrefs at law.

I do not, upon the whole, confider the refufál of Spalding to bring a writ of error ■'(which he is not compellable to bring) nor any other fuggeftion in the bill, as a fufficient foundation for exercifing the equitable jurifdiftion of the . cou.rtj and, confequently, I. think that an injunftion ought not to be awarded.'

Jay, Chief Juficf..

My firft ideas were Unfavorable to the motion} -but many reafons have been urged, which operate forcibly to produce a change of opinion.

The great queftion turns on the property of a certain bond whether it belongs to Brailsford,' or ■ to Georgia ? It is put' in fuit. by Brailsford-, . but if - Georgia, by- virtue of the confifcation aft, is-really entitled to the debt, ihe is' entitled .to-the money, though the evidence of the debt happened to be in the poileffion of Brailsford, and though Brailsford has, by'that, means, obtained a’judgment for. the amount. ’

Then the only point to be confidered is—whether,- under thefe-circumftances, it,is not qqnitablc to ftay the money in flte hands of the marihall,.’till the right to it is fajriy decided ; and fo avoid the rifque of putting the true owner to a fuit, for the piirpofe of recovering it back ?

For my part, I think that the money' ihould remain in the- cuftody* of the law, till the law has adjudged to whom it belongs j and, therefore, I am, content, that the injunction ilfue. '

An injunction granted. 
      
       Seethe fame cafe,'jtosf. & 3 -ool, pi t. as. well on amotion to didolve the Injuníüon,.a$ on a trial of the merits, upon a feigned lffue.
     