Page:United States Reports, Volume 2.djvu/423

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SUPREME COURT of the Ullffflf Shift':. 4l '] Tribunal. Suppofe it remains in the hands of Brailrfirdz he 1793. can hardly be eapeeled voluntarily, to furuilh hisantagonill: *’V*-' with the means of combat. In {hott, it is only by the authority of this Court, fitting as a, Court of Equity, either that thc ope-- ration of the judgment obtained at common law, againll Spa/rl-·· iug, can be prevented from becoming conclulive on the quellion of right; or that the Stateof Gm-gin can be enabled to main- tain her claim upon its merits. _. _ ad. lt is urged, however, that the State has another reme- dy at law, by an adion of Ajirumft for money had and re- Ceived, againll. Bruilrfird. This is, indeed, the legal pauaun of modern times; and may, perhaps, be beneficially applied to a great variety of cafes. But, it cannot be pretended, that this form of aélion will lie, before the defendant has aélually re- ceived the money, which the plaintiff demands. In the pre- [ent inftance, the money has not been received by Bz·aily4»·d ; and, of courfe, he cannot be compelled to account for it to Georgia. The cafeof M¢·r v. 1lI*Fm·hm¢, 2 Burr. too;. if at all epplicable to the points now in controverfy, will be found more favorable, Ithinlt, to the opinion, which I entertain, than to the opinion, which it has been cited to fupport. From that cafe (which prefents a moll unconfcionable conduél: on the part of the defendant) it is to be inferred, as Ihave already Hated, that a judgment is a perpetual bar, againlt a fecond recovery for the fame caufe, unlefs it is tainted with fraud and collulion: But the King`: Bam-}: proceed in deciding the quellion then be- fore them on this ground, principally, that the inferior Court, the Court of Confcience, could not take cognizance of the col- lateral matter, which conltituted the defence ; whereas, in the prefent inliance, the matter pleaded by Sjwlrling, was perfeéily within the cognizance and jurihliction of the Circuit Court. Frmn this view of the fuhjeét, therefore I am induced to conclude, that the State of Georgia has no remedy at law ; aud, it is fullicient for an incipient excrcifc of the jurifdiétion of this Court, that {he has {hewn a color of title to recover the money, and that the money is in danger of being paid to another clai- _ manr. l abltain from giving any opinion upon the judgment of the Circuit Court ; but, certainly, I lhould never have con- fented to illiie an injunéion, if lhad thought the legal reme- dy of the State was plain, adequate, and compleat. lf the bill is fullained, the money will be preferved in neutral hands; and the Court may dtreél an iliite to be tried at the bar, in order to afeertain, whether the State of Guwgiu, or BraiI.gfZu·d, is the right owner. lluuu, _7ryIir¢·. My fentimcnts have coincided, ’till this moment, with the {entimcnts entertained by the m ·jnrity of thc (Egg Court ;