1793.
Tribunal. Suppose it remains in the hands of Brailsford: he can hardly be expected voluntarily, to furnish his antagonist with the means of combat. In short, it is only by the authority of this Court, sitting as a Court of Equity, either that the operation of the judgment obtained at common law, against Spalding, can be prevented from becoming conclusive on the question of right; or that the State of Georgia can be enabled to maintain her claim upon its merits.
2d.It is urged, however, that the State has another remedy at law, by an action of Assumpsit for money had and received, against Brailsford. This is, indeed, the legal panacea of modern times; and may, perhaps, be beneficially applied to a great variety of cases. But, it cannot be pretended, that this form of action will lie, before the defendant has actually received the money, which the plaintiff demands. In the present instance, the money has not been received by Brailsford; and, of course, he cannot be compelled to account for it to Georgia.
The case of Moses v. McFarlane, 2 Burr. 1005. if at all applicable to the points now in controversy, will be found more favorable, I think, to the opinion, which I entertain, than to the opinion, which it has been cited to support. From that case (which presents a most unconscionable conduct on the part of the defendant) it is to be inferred, as I have already stated, that a judgment is a perpetual bar, against a second recovery for the same cause, unless it is tainted with fraud and collusion: But the King’s Bench proceed in deciding the question then before them on this ground, principally, that the inferior Court, the Court of Conscience, could not take cognizance of the collateral matter, which constituted the defence; whereas, in the present instance, the matter pleaded by Spalding, was perfectly within the cognizance and jurisdiction of the Circuit Court.
From this view of the subject, therefore I am induced to conclude, that the State of Georgia has no remedy at law; and, it is sufficient for an incipient exercise of the jurisdiction of this Court, that she has shewn a color of title to recover the money, and that the money is in danger of being paid to another claimant. I abstain from giving any opinion upon the judgment of the Circuit Court; but, certainly, I should never have consented to issue an injunction, if I had thought the legal remedy of the State was plain, adequate, and compleat. If the bill is sustained, the money will be preserved in neutral hands; and the Court may direct an issue to be tried at the bar, in order to ascertain, whether the State of Georgia, or Brailsford, is the right owner.
Blair, Justice.My sentiments have coincided, ’till this moment, with the sentiments entertained by the majority of the