An injunction was granted on the application of the State of
Georgia to stay money in the hands of the Marshal of the State of
Georgia which was claimed by that state under the confiscation act
for the purpose of enabling the state to have the claim decided at
law.
This was a bill in equity filed by "His Excellency Edward
Telfair, Esq., Governor and Commander in Chief in and over the
State of Georgia, in behalf of the said state, complainant,"
against Samuel Brailsford, Robert Wm. Powell, and John Hopton,
merchants and co-partners, and James Spalding, surviving partner of
Kelsall & Spalding, defendants. The bill set forth the
following case:
"That on 4 May, 1782, the State of Georgia being then free,
sovereign, and independent, enacted a law entitled 'An act for
inflicting penalties on and confiscating the estates of such
persons as are therein declared
Page 2 U. S. 403
guilty of treason, and for other purposes therein
mentioned.'"
That, among other things, this law contained the following
clauses:
"And whereas there are divers estates and other property within
this state, belonging to persons who have been declared guilty or
convicted in one or other of the United States of offenses which
have induced a confiscation of their estates or property within the
state of which they were citizens, be it therefore enacted by the
authority aforesaid that all and singular the estates, both real
and personal, of persons under this description, of whatsoever kind
or nature, together with all rights and titles, which they may, do,
or shall hold in law or equity, or others in trust for them, and
also all the debts, dues and demands due or owing to British
merchants or others residing in Great Britain (which shall be
appropriated as herein after mentioned) owing or accruing to them
be confiscated to and for the use and benefit of this state in like
manner and form of forfeiture as they were subjected to in the
states of which they respectively were citizens, and the monies
arising from the sales which shall take place by virtue, and in
pursuance of this act to be applied to such uses and purposes as
the legislature shall hereafter direct."
"And be it further enacted that all debts, dues, and demands due
or owing to merchants or others residing in Great Britain be and
they are hereby sequestered, and the commissioners appointed under
this act, or a majority of them, are hereby empowered to recover,
receive, and deposit the same in the treasury of this state in the
same manner and under the same regulations as debts confiscated,
there to remain for the use of this state until otherwise
appropriated by this or any future house of assembly."
"And whereas there are various persons, subjects of the King of
Great Britain, possessed of or entitled to estates real and
personal, which justice and found policy require should be applied
to the benefit of this state, be it therefore enacted by the
authority aforesaid that all and singular the estates, real and
personal, belonging to persons being British subjects, of
whatsoever kind or nature, which they may be possessed of, except
as before excepted, or others in trust for them, or that they are
or may be entitled to in law or equity, as also all debts, dues, or
demands owing or accruing to them, be confiscated to and for the
use and benefit of this state, and the monies arising from the
sales which shall take place by virtue of and in pursuance of this
act, to be applied to such uses and purposes as the legislature
shall hereafter direct."
"That by the operation of these clauses, all the debts, dues,
and demands, of the citizens of Georgia to persons who had
Page 2 U. S. 404
been subjected to the penalties of confiscation in other states,
and of British merchants and others residing in Great Britain, and
of all other British subjects, were vested in the said state."
"That James Spalding, a citizen of Georgia, and surviving
co-partner of Kelsall & Spalding, was indebted to the
defendants in the penal sum of �7,058 5d. upon a bond dated the of
1774, which debt, by virtue of the said recited law, was
transferred from the obligees and vested in the state, Brailsford
being a native subject of Great Britain, constantly residing there
from the year 1767 'till after the passing of the law; Hopton's
estate real and personal (debts excepted) having been expressly
confiscated by an act of the Legislature of South Carolina, and
Powell coming within the description of persons whose estates, real
and personal (debts excepted), were also confiscated by acts of the
Legislature of South Carolina if after refusing to take the oath of
allegiance, they returned to the state."
"That an action had been brought upon the bond by Brailsford,
Powell, and Hopton against James Spalding, as surviving partner of
Kelsall & Spalding, in the Circuit Court for the District of
Georgia, of term 1791, in which action there was a plea, demurrer
to the plea, joinder in demurrer, and judgment thereupon for the
plaintiffs."
"That the state had never relinquished its claim to this debt,
but, on the contrary, had asserted it by divers acts of the
legislative, executive, and judicial departments, and particularly
by directing the Attorney General to apply for a rule to be
admitted to assert the claim in all suits brought in any court for
debts within the descriptions of the confiscation law above
cited."
"That the Attorney General applied to the circuit court for the
admission of the state as a party to defend its claim in the said
suit of Brailsford and others versus Spalding, then depending
there, which application was rejected; and that in that suit as
well as divers other suits, recoveries were had against citizens of
the state by British merchants for debts within the descriptions of
the confiscation law upon the sole principle of debtor and
creditor, and without any reference to the right and claim of the
state."
The bill proceeds to charge a confederacy between the parties to
the suit in the circuit court to defraud the state, and that in
pursuance thereof the plaintiffs had issued execution against the
defendant and the defendant had confederated with them not to take
out a writ of error so that the defendant's property will be levied
on and disposed of and the state will be defrauded of its just
claim thereon.
The bill then suggests the general foundation for the
jurisdiction on the equity side of the court, puts the proper
interrogatories,
Page 2 U. S. 405
and concludes with praying
"That any levy or further levies under the said execution, and
any sales in pursuance of a levy, and any monies already raised or
that may be raised thereon may be stayed in the hands of the
marshal of the said circuit court, by an injunction from this
Honorable Court. And that the said marshal be directed to pay such
sum or sums raised as a aforesaid to the treasurer of the said
State of Georgia to and for the use of the same, and that the said
James Spalding be decreed to pay to the said treasurer the balance
which may be due on the bond aforesaid for the use aforesaid. And
that the said state may be further or otherwise relieved in all and
singular the premises as the nature and circumstances of the case
shall require and as to the court shall seem meet."
With the bill, there was filed an affidavit made by Mr. John
Wereat (the agent for Georgia) affirming "that the allegations
therein contained are true," and Dallas, for the state, moved that
an injunction might issue to the circuit court to stay further
proceedings and also to the Marshal of the Georgia
District to stay the money in his hands if he should have levied
or shall levy, the same on any execution issued in the cause of
Brailsford v. Spalding.
The motion was opposed by Randolph for the defendants, and after
argument, the judges delivered their opinions
seriatim on
t11 August, 1792.
JOHNSON, JUSTICE.
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.
IREDELL, JUSTICE.
I sat in the circuit court, when the judgment was rendered in
the case of
Brailsford v.
Page 2 U. S. 406
Spalding, but I shall give my opinion on the present
motion detached 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 affect
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 in the hands of the marshal till this Court shall
make a further order on the subject.
BLAIR, JUSTICE.
The State of Georgia seems to have done all that she 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 appeal
to the equitable jurisdiction of the Supreme
Page 2 U. S. 407
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
opinion 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, JUSTICE.
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 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
Page 2 U. S. 408
circumstances of the case, I have no objection to retain the
money within the power of the court 'till we can better satisfy
ourselves both as to the remedy and the right.
CUSHING, JUSTICE.
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." 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 willful 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.
McFarland, 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.
MR. CHIEF JUSTICE JAY.
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 entitled to the debt, she is entitled to the money,
though the evidence of the debt happened to be in the possession of
Brailsford and though Brailsford has by that means obtained a
judgment for the amount.
Then the only point to be considered is whether, under these
circumstances, it is not equitable to stay the money in the
Page 2 U. S. 409
hands of the marshal, 'till the right to it is fairly decided,
and so avoid the risk of putting the true owner to a suit for the
purpose of recovering it back?
For my part, I think that the money should remain in the custody
of the law 'till the law has adjudged to whom it belongs, and
therefore I am content, that the injunction issue.
Injunction granted.
