The State of Georgia v. Brailsford. 2 D.

The case of Moses v. Mac Ferlan, 2 Bur. 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 shown 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 complete. 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.

BLAIR, J. My sentiments have coincided, until this moment, with the sentiments entertained by the majority of the *Court; but a doubt has just occurred, which I think it my [ *418 ]. duty to declare.

I do not conceive, indeed, that any judgment can be binding upon the rights and interests of a third person, who is not a party to the suit. The very nature of a bill of interpleader presupposes that the party, by whom it is exhibited, would be liable a second time, if he should either voluntarily, or otherwise, pay the money which he owes to a wrong claimant. A judgment would not therefore, in such a case, be a bar to the action of the claimant who is legally entitled; and who might either bring detinue, or trover, for the bond against the possessor of it; or if he instituted an action of debt against the obligor, the Court might, on a proper hearing, order the instrument to be delivered into his hands.

Presuming, then, that there was a remedy at law, I have hitherto thought that there was no ground for the interference of this Court, as

Chisholm, Executor, v. Georgia. 2 D.

a Court of Equity. But, upon reflection, it appears that if Brailsford, who is a British subject, should get the money under the present judgment, and leave the country, there would be great danger of a failure of justice. It was for this reason that the injunction was originally granted; and I think the reason ought to carry us still farther. Admitting that Georgia has a complete remedy at law; her right, though not supported by herself, has been stated to the Circuit Court; and though the judgment in that case is not binding upon her, yet, in any future suit brought by her against Spalding, who is bound by the judgment, a similar difficulty will arise, for the Court would then be called upon to decide in the absence of Brailsford, who could not be a party to the common law suit, upon his claim, as well as upon the claim of Georgia.

Since, therefore, there is no other Court that can bring all the parties before them, and do general and complete justice, it is my opinion that the bill in equity ought to be sustained; and that the subject should be no further referred to a court of law, than to obtain an opinion upon the legal title to the debt in controversy.

JAY, C. J. All the Court, except the Judges who have just delivered their sentiments, are of opinion that if the State of Georgia has a right to the debt, due originally from Spalding to Brailsford, it is a right to be pursued at common law.

The bill, however, was founded in the highest equity; and the ground of equity for granting an injunction continues the same

namely, that the money ought to be kept for the party [*419] to whom it belongs. We shall therefore continue the injunction until the next term; when, however, if Georgia has not instituted her action at common law, it will be dissolved. 2 D. 473; 1 P. 122; 5 P. 284; 2 H. 9; 9 H. 10.

CHISHOLM, Executor, v. GEORGIA.

2 D. 419.

Under the Constitution of the United States, as originally adopted, a State could be sued by an individual citizen of another State.

A State having been duly served with process, and not appearing, the Court, at the next term after the return term, made an order that judgment, by default, should be given against the State, unless an appearance should be entered, or cause shown, by the first day of the next term.

Chisholm, Executor, v. Georgia. 2 D.

Service of process on the Governor, and Attorney-General of a State, is sufficient service on the State.

THIS action was instituted in August term, 1792. On the 11th of July, 1792, the marshal for the District of Georgia made the following return: "Executed as within commanded, that is to say, served a copy thereof on his Excellency Edward Telfair, Esq., Governor of the State of Georgia, and one other copy on Thomas P. Carnes, Esq., the Attorney-General of said State.

"ROBERT FORSYTH, Marshal."

Upon which Mr. Randolph, the Attorney-General of the United States, as counsel for the plaintiff, made the following motion on the 11th of August, 1792. "That, unless the State of Georgia shall, after reasonable previous notice of this motion, cause an appearance to be entered in behalf of the said State, on the fourth day of the next term, or shall then show cause to the contrary, judgment shall be entered against the said State, and a writ of inquiry of damages shall be awarded." But, to avoid every appearance of precipitancy, and to give the State time to deliberate on the measures she ought to adopt, on motion of Mr. Randolph, it was ordered by the Court, that the consideration of this motion should be postponed to the present term. And now Ingersoll and Dallas, presented to the Court a written remonstrance and protestation on behalf of the State, against the exercise of jurisdiction in the cause; but in consequence of positive instructions, they declined taking any part in arguing the question.

The case was argued by the Attorney-General, for the plaintiff, and held under advisement by the Court from the 5th to the 18th of February, when they delieverd their opinions seriatim.

IREDELL, J. This great cause comes before the Court, on a motion made by the Attorney-General, that an order be made by this Court to the following effect: "That, unless the State of Georgia shall, after reasonable notice of this motion, cause an appearance to be entered on behalf of the said State, on the fourth day of next term, or show cause to the contrary, judgment shall be entered for the plaintiff, and a writ of inquiry shall be awarded." Before such an order be made, it is proper that this Court should be satisfied it hath cognizance of the suit; for to be sure we ought not to enter a conditional judgment, which this would be, in a case where we were not fully persuaded we had authority to do so.

1 Grayson v. Virginia, 3 D. 320.

Chisholm, Exccutor, v. Georgia. 2 D.

This is the first instance wherein the important question involved in this cause has come regularly before the Court. In the Maryland case, 2 D. 401, it did not, because the Attorney-General of the State voluntarily appeared. We could not, therefore, without the greatest impropriety, have taken up the question suddenly. That case has since been compromised; but, had it proceeded to trial and a ver

dict been given for the plaintiff, it would have been our duty, [*430 ] previous to our giving judgment, to have well *considered whether we were warranted in giving it. I had then great doubts upon my mind, and should in such a case have proposed a discussion of the subject. Those doubts have increased since, and after the fullest consideration I have been able to bestow on the subject, and the most respectful attention to the able arguments of the Attorney-General, I am now decidedly of opinion that no such action as this before the Court can legally be maintained.

The action is an action of assumpsit. The particular question then, before the Court is, will an action of assumpsit lie against a State? This particular question, abstracted from the general one, namely, Whether a State can, in any instance, be sued, I took the liberty to propose to the consideration of the Attorney-General, last term. I did so, because I have often found a great deal of confusion to arise from taking too large a view at once, and I had found myself embarrassed on this very subject, until I considered the abstract question itself. The Attorney-General has spoken to it, in deference to my request, as he has been pleased to intimate, but he spoke to this particular question slightly, conceiving it to be involved in the general one; and after establishing, as he thought, that point, he seemed to consider the other followed of course. He expressed, indeed, some doubt how to prove what appeared so plain. It seemed to him, if I recollect right, to depend principally on the solution of this simple question can a State assume? But the Attorney-General must know, that in England, certain judicial proceedings, not inconsistent with the sovereignty, may take place against the crown, but that an action of assumpsit will not lie. Yet surely the King can assume as well as a State. So can the United States themselves, as well as any State in the Union: yet the Attorney-General himself has taken some pains to show that no action whatever is maintainable against the United States. I shall, therefore, confine myself as much as possible to the particular question before the Court, though every thing I have to say upon it will affect every kind of suit, the object of which is to compel the payment of money by a State.

The question, as I before observed, is- Will an action of assumpsit

Chisholm, Executor, v. Georgia. 2 D.

lie against a State? If it will, it must be in virtue of the Constitution of the United States, and of some law of Congress conformable thereto. The part of the Constitution concerning the judicial power is as follows, namely: Art. 3, § 2. The judicial powers shall extend, 1. To all cases in law and equity arising under the Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; 2. To all cases affecting ambassadors, or other public ministers, and consuls; 3. To all cases of admiralty and maritime jurisdiction; 4. To controversies

*

to which the United States shall be a party; 5. To con- [ 431 * ] troversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State claiming lands under grants of different States; and between a State or the citizens thereof, and foreign States, citizens, or subjects. The Constitution, therefore, provides for the jurisdiction wherein a State is a party, in the following instances: - 1st. Controversies between two or more States. 2d. Controversies between a State and citizens of another State. 3d. Controversies between a State and foreign States, citizens or subjects. And it also provides, that, in all cases in which a State shall be a party, the Supreme Court shall have original jurisdiction.

The words of the general Judicial Act, conveying the authority of the Supreme Court, under the Constitution, so far as they concern this question, are as follow: -§ 13, 1 U. S. St. at Large, 80, "That the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a State is a party, except between a State and its citizens; and except, also, between a State and citizens of other States, or aliens, in which latter case it shall have original, but not exclusive jurisdiction. And shall have, exclusively, all such jurisdiction of suits or proceedings against ambassadors or other public ministers, or their domestics or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by ambassadors or other public ministers, or in which a consul, or viceconsul, shall be a party."

The Supreme Court hath, therefore, First- Exclusive jurisdiction in every controversy of a civil nature; 1st. Between two or more States; 2d. Between a State and a foreign State; 3d. Where a suit or proceeding is depending against ambassadors, other public ministers, or their domestics or domestic servants. Second-Original, but not exclusive jurisdiction; 1st. Between a State and citizens of other States; 2d. Between a State and foreign citizens or subjects; 3d. Where a suit is brought by ambassadors, or other puh.