# Georgia v. Brailsford (2 U.S. 415)/Dissent Iredell

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* Dissenting Opinions Iredell Blair
​Iredell, Justice.It is my misfortune to dissent from the opinion entertained by the rest of the court upon the present occasion; but I am bound to decide, according to the dictates of my own judgment.
The State of Georgia complains, that having a right to the debt in question, that right has been discussed and over ruled without giving her an opportunity to be heard in support of it, though she applied to the Circuit Court for that purpose. It is another grievance alledged, that a Writ of Error has not been ​instituted, when, all the facts appearing upon the Record, the decision of the Circuit Court might have undergone a full and satisfactory revision, before the tribunal of the last resort. It is true, that this latter allegation is defectively set forth in the Bill; for, as a Writ of Error could not be sued out without entering security, the State, to entitle herself to any benefit from the exception, ought, in strictness, to have tendered a security to the defendant in the inferior Court. But still, if a writ of error had been brought, it appears to me, that it could only affect the original Plaintiffs and Defendants in the suit; and the State of Georgia could not be made a party to the Record. In this situation, it must, likewise, be considered, Georgia had not a constitutional right to institute a suit, nor could she, in my opinion, be admitted as a party to a proceeding in the nature of an Interpleader, in any, but the Supreme Court.
The State, however, asserts a claim to the debt in controversy, by virtue of an Act of Confiscation; and the debtor admits that he ought to pay the amount of his bond, but is doubtful to which of the contending parties it ought to be paid. Now, without the equitable interposition of this court, I think there will be a defect of justice; for it is obvious to me, either that the state can have no remedy at law, or at least that the remedy at law will not be “plain, adequate, and complete.” Two positions have been taken, in opposition to this opinion: 1st. That if the state is entitled to the debt, she may maintain an action on the bond against the obligors:—Or 2d. That the State might bring an action of Assumpsit for money had and received, &c. against Brailsford, if Brailsford had no right to recover, or retain it. I will cursorily consider both these positions.
1st.In the first place, it is to be recollected, that the bond is merged in the judgement; and although the judgement is said to be generally binding only on the parties, yet it is good against all the world, until it is reverted in a regular course of law. To any other suit, for the same cause, Spalding might plead the previous judgment in bar; and the plea could only be defeated by shewing fraud, or collusion. There is no pretence, however, for an imputation of that kind here; since Spalding set forth the title of Georgia as fully as the state herself could have done: And would it not be monstrous, after a judgment rendered under such circumstances, to compel him again to pay the same debt? There is neither principle, nor precedent, for so harsh and oppressive a doctrine.
But if a suit could be maintained upon the bond by the state, how is she to obtain possession of the instrument, without the aid of a court of equity? Suppose it has been deposited with the Clerk of the Circuit Court:—that officer cannot deliver it to the state, without the judicial mandate of a superior ​Tribunal. Suppose it remains in the hands of Brailsford: he can hardly be expected voluntarily, to furnish his antagonist with the means of combat. In short, it is only by the authority of this Court, sitting as a Court of Equity, either that the operation of the judgment obtained at common law, against Spalding, can be prevented from becoming conclusive on the question of right; or that the State of Georgia can be enabled to maintain her claim upon its merits.
2d.It is urged, however, that the State has another remedy at law, by an action of Assumpsit for money had and received, against Brailsford. This is, indeed, the legal panacea of modern times; and may, perhaps, be beneficially applied to a great variety of cases. But, it cannot be pretended, that this form of action will lie, before the defendant has actually received the money, which the plaintiff demands. In the present instance, the money has not been received by Brailsford; and, of course, he cannot be compelled to account for it to Georgia.
The case of Moses v. M$^c$Farlane, 2 Burr. 1005. if at all applicable to the points now in controversy, will be found more favorable, I think, to the opinion, which I entertain, than to the opinion, which it has been cited to support. From that case (which presents a most unconscionable conduct on the part of the defendant) it is to be inferred, as I have already stated, that a judgment is a perpetual bar, against a second recovery for the same cause, unless it is tainted with fraud and collusion: But the King’s Bench proceed in deciding the question then before them on this ground, principally, that the inferior Court, the Court of Conscience, could not take cognizance of the collateral matter, which constituted the defence; whereas, in the present instance, the matter pleaded by Spalding, was perfectly within the cognizance and jurisdiction of the Circuit Court.
From this view of the subject, therefore I am induced to conclude, that the State of Georgia has no remedy at law; and, it is sufficient for an incipient exercise of the jurisdiction of this Court, that she has shewn a color of title to recover the money, and that the money is in danger of being paid to another claimant. I abstain from giving any opinion upon the judgment of the Circuit Court; but, certainly, I should never have consented to issue an injunction, if I had thought the legal remedy of the State was plain, adequate, and compleat. If the bill is sustained, the money will be preserved in neutral hands; and the Court may direct an issue to be tried at the bar, in order to ascertain, whether the State of Georgia, or Brailsford, is the right owner.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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