1793.
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