Georgia v. Brailsford (2 U.S. 402)/Dissent Cushing

by William Cushing

Cushing, Justice.⁠The Judicial act expressly declares, that “suits in equity shall not be sustained, in either of the courts of the United States, in any case where plain, adequate, and complete remedy may be had at law.” Now, if Georgia has any right to the debt in question, it is a right at law, for which, of course, the law will furnish a plain, adequate, and complete remedy. The decision of the Circuit court, in a case to which Georgia was neither party nor privy, did not, and could not, take away either the right or the remedy of the State. Nor can Spalding, the defendant below, be made liable twice, for the same debt, without his wilful laches. For, it is in his power to bring a writ of error; and then the whole merits of the claim of Georgia appearing on the record, we must decide it as a question of law, either by affirming or reversing the judgment, so as to bind us in any suit, which Georgia might institute for the same cause.

Besides, the State of Georgia (notwithstanding the judgment of the Circuit court) may bring an action of indebitatus assumpsit against Brailsford (who is a man of fortune), after they have received the money, upon the principle of Moses versus M^cFarland, and with stronger reason; as in that case the parties, in both courts, were the same; but, in the case proposed, they would be different, and one of them has never been heard. In some form, therefore, Georgia may obtain compleat redress at law.

I do not, upon the whole, consider the refusal of Spalding to bring a writ of error (which he is not compellable to bring) nor any other suggestion in the bill, as a sufficient foundation for exercising the equitable jurisdiction of the court; and, consequently, I think that an injunction ought not to be awarded.