Georgia v. Brailsford (2 U.S. 402)

by Alexander J. Dallas

Supreme Court of the United States

2 U.S. 402

The State of Georgia  v.  Brailsford, et al.

 Argued: August 9, 1792 --- Decided: August 11, 1792

This was a bill in equity filed by “His Excellency Edward Telfair, Esq. governor and commander in chief in and over the state of Georgia, in behalf of the said State, complainant;” against Samuel Brailsford, Robert Wm. Powell, and John Hopton, merchants and co-partners, and James Spalding, surviving partner of Kelsall & Spalding, defendants. The bill set forth the following case:—“That on the 4th of May, 1782, the State of Georgia being then free, sovereign and independent, enacted a law entitled ‘An act for inflicting penalties on, and confiscating the estates of, such persons as are therein declared guilty of treason, and for other purposes therein mentioned.’

That, among other things, this law contained the following clauses:—‘And whereas there are divers estates and other property within this State, belonging to persons who have been declared guilty, or convicted, in one or other of the United States, of offences which have induced a confiscation of their estates or property within the State of which they were citizens: Be it therefore enacted by the authority aforesaid, that all and singular the estates both real and personal, of persons under this description, of whatsoever kind or nature, together with all rights and titles, which they may, do, or shall hold in law or equity, or others in trust for them, and also all the debts, dues and demands, due or owing to British merchants, or others, residing in Great Britain, (which shall be appropriated as herein after mentioned) owing or accruing to them, be confiscated to and for the use and benefit of this State, in like manner and form of forfeiture as they were subjected to in the States of which they respectively were citizens, and the monies arising from the sales which shall take place by virtue, and in pursuance of, this act, to be applied to such uses and purposes, as the legislature shall hereafter direct.’

‘And be it further enacted, that all debts, dues and demands, due or owing to merchants or others residing in Great Britain, be, and they are hereby sequestered, and the commissioners appointed under this act, or a majority of them, are hereby empowered to recover, receive, and deposit the same in the treasury of this State, in the same manner, and under the same regulations, as debts confiscated, there to remain for the use of this State, until otherwise appropriated by this or any future house of Assembly.’

‘And whereas there are various persons, subjects of the king of Great Britain, possessed of or entitled to estates real and personal, which justice and found policy require should be applied to the benefit of this State; Be it therefore enacted by the authority aforesaid, That all and singular the estates, real and personal, belonging to persons being British subjects, of whatsoever kind or nature, which they may be possessed of, except as before excepted, or others in trust for them, or that they are or may be entitled to in law or equity, as also all debts, dues, or demands, owing or accruing to them, be confiscated to and for the use and benefit of this State, and the monies arising from the sales which shall take place by virtue of, and in pursuance of this act, to be applied to such uses and purposes as the legislature shall hereafter direct.’

“That by the operation of these clauses, all the debts, dues, and demands, of the citizens of Georgia to persons, who had been subjected to the penalties of confiscation in other States, and of British merchants and others residing in Great Britain, and of all other British subjects, were vested in the said State.

“That James Spalding, a citizen of Georgia, and surviving co-partner of Kelsall & Spalding, was indebted to the defendants in the penal sum of ₤7085. 9s. 5d. upon a bond dated the⁠of⁠1774, which debt, by virtue of the said recited law, was transferred from the obligees and vested in the State:—Brailsford being a native subject of Great Britain, constantly residing there from the year 1767 ’till after the passing of the law; Hopton’s estate real and personal, (debts excepted) having been expressly confiscated by an act of the legislature of South Carolina; and Powell coming within the description of persons, whose estates real and personal (debts excepted) were also confiscated by acts of the legislature of South Carolina, if after refusing to take the oath of allegiance, they returned to the State.

“That an action had been brought upon the bond, by Brailsford, Powell and Hopton, against James Spalding, as surviving partner of Kelsall & Spalding, in the circuit court for the district of Georgia, of⁠term, 1791, in which action there was a plea, demurrer to the plea, joinder in demurrer, and judgment thereupon for the plaintiffs.

“That the State had never relinquished its claim to this, debt, but, on the contrary, had asserted it by divers acts of the Legislative, Executive, and Judicial, departments; and, particularly, by directing the Attorney General to apply for a rule, to be admitted to assert the claim, in all suits brought in any court, for debts within the descriptions of the confiscation law above cited.

“That the Attorney General applied to the Circuit court for the admission of the State, as a party, to defend its claim in the said suit of Brailsford and others versus Spalding, then depending there, which application was rejected; and that in that suit, as well as divers other suits, recoveries were had against citizens of the state by British merchants, for debts within the descriptions of the confiscation law, upon the sole principle of debtor and creditor, and without any reference to the right and claim of the state.”

The bill proceeds to charge a confederacy between the parties to the suit in the circuit court to defraud the State; and that in pursuance thereof the plaintiffs had issued execution against the defendant, and the defendant had confederated with them not to take out a writ of error; so that the defendant’s property will be levied on, and disposed of, and the State will be defrauded of its just claim thereon.

The bill then suggests the general foundation for the jurisdiction on the equity side of the court;—puts the proper interrogatories;—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.