Open main menu

Page:United States Reports, Volume 2.djvu/422

This page needs to be proofread.


Lu! Cases ruled and adjudged in the |193. inllituted, when, all the fa&s appearing upon the Record, the vw`: decilion of the Circuit Court might have undergone a full and latisfaélory revilion, before the tribunal of the lall: refort. It is true, that this latter allegation is defeéiively fet forth in the Bill ; for, as a Vrit of Error could not be fued out without en- tering feeurity, the State, to entitle herfelf to any benelit from the exception, ought, in ltri&neCr, to have tendered a fecurity to the defendant in the inferior Court. But llill, if a writ of error had been brought, it appears to me, that it could only aEe& the original Plaintiffs and Defendants in thc fuit ; and the State of Gm-gi; could not be made a party to the Record. In this lituation, it mult, likewife, be eonlidered, Georgia had not a conllitutiot .. right to inllitute a fuit, nor eould lhe, in my opinion, be admitted as a party to a the ¤a— ture of an lrttcrpleader, in any, but the Supreme nrt. 'I`he State, however, afferts a claim to the debt in controverl}-, by virtue of an A& of Conlifeation; 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 interpolition of this eonrt, I think there willbe a defeé]: of juliiee; for it isobriousto ine, either that the ltatc can have no remedy at law, orat leall that the remedy at law will not be ‘• plain, adequate, and complete! Two , politions have been taken, in oppolition to this opinion: rl}. That if the llate is entitled to the debt, lhc may maintain an a£tion on the bond againll the obligors :—Or 2eL That the State might bring an a&ion of Jjfiemyit for money had and received, Ste againli Brailifard, if Brailgh-:1 had no right to recover, or retain it. I will curforily conlider both thefe politions. yi. In the fi} place, it is to be reeollefted, that the bond is merged in the judgement; and although the judgement is faid to be generally binding only on the panics, yet it is good againllt all the world, until it is revcrfed in a regular courfe of law. To any other {`uir, for the fame caufc, Spalding might plead the previous judgment in bar; and the plea could only be defeated by lhcwing fraud, or collulion. There is no pretence, how- ever, for an imputation of that kind here; linee Spalding fer forth the title of Georgia asfully as the {tate herfelf could have done: And would it not be monllrous, after a judgment ren- dered under fuch circutnltanccs, to compel him again to pay the fame debt? There is neither principle, nor precedent, for fo harlh and opprcllive a doflrine. But if a {nit could be maintained upon the bond by he (late, how is the to obtain pollellion of the iultrnment, without the aid of a court of equity! Suppofe it has been depolited withjthe Clerk of the Circuit Court:—that ollicer cannot deli- ver it to the {late, without the judicial majndate of a fuperior Tribunal.