1792.
rogatories;—and concludes with praying “that any levy, or farther 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 marshall of the said Circuit court, by an injunction from this honorable court. And that the said marshall be directed to pay such sum, or sums, raised as 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 farther 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 marshall 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 et al. versus Spalding.
The motion was opposed by Randolph, for the defendants; and after argument, the Judges delivered their opinions seriatim, on the 11th of 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 alledge, 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 alledges, 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 and others versus
