This is Part 2 of a multi-part case. We invite you to read about Georgia v. Brailsford I first.

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Here’s where we left off.

The State of Georgia went to the Supreme Court to lay its claim on slave debt that was incurred between a British slave merchant named Samuel Brailsford (the creditor) and a Georgian slave merchant named James Spalding (the debtor).

The State of Georgia argued it was entitled to the debt because, during the Revolutionary War, Georgia had a law on its books which confiscated debt owed to foreigners.

But after the war ended, Brailsford maintained the debt was his to collect, not Georgia’s.

So the State of Georgia turned to the Supreme Court and asked for an injunction to stop Brailsford from collecting the debt from Spalding.

Ultimately, the Court ruled in favor of Georgia, pausing collection of the debt so the parties could fight out the issue concerning who was actually entitled to the debt.

With the money frozen, we turn now to Georgia v. Brailsford II.

You can read the Court’s opinion here.

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It’s like this.

When the Court reconvened in February of 1793, Brailsford’s lawyer sprang into action.

Brailsford had been sitting around unable to collect the debt from Spalding because of the injunction, which had been in place since August of 1792. He wanted to roll around in his blood money, dammit!

Intent on getting Brailsford his bag, Brailsford’s lawyer asked the Court to (1) get rid of the injunction and (2) dismiss the case.¹

Brailsford argued that the State of Georgia was asking for remedies that stretched beyond the bounds of a typical suit in law or suit in equity.²

(We’ll explain the differences between the two kinds of suits in a minute. We have a nifty metaphor and everything.)

The Decision

The Court ruled 3-2 in favor of Georgia.

The Court ruled to keep the injunction in place until the Court’s next term.³ However, the Court also said if the State of Georgia wanted to proceed with its case, it would have to drop the present equity suit and file a common law suit instead.⁴

If the State of Georgia failed to do so by the Court’s next term, the injunction would be dissolved, and Brailsford could collect his debt from Spalding.

That would mean game over for Georgia, or at least game over until Georgia found some other way to claw money from Brailsford or Spalding.

Now, you may have noticed the decision was 3-2. We’re down one Justice from six because Justice Thomas Johnson resigned from the Court just before the Court’s February 1793 term began.⁵

In his resignation letter to President Washington, Justice Johnson told the President he was leaving the Court because he was in poor health and couldn’t bear the burden of riding circuit.⁶

He wrote Washington,

“I am not very well and a Journey now to Philadelphia would be at least disagreeable…I…find the Office and the Man do not fit—I cannot resolve to spend six Months in the Year of the few I may have left from my Family, on Roads at Taverns chiefly and often in Situations where the most moderate Desires are disappointed: My Time of Life Temper and other Circumstances forbid it.”⁷

Could you imagine sending your resignation letter to George Washington?

The Opinions

Chief Justice John Jay wrote for the majority. The two dissenting Justices each wrote a separate opinion.

Majority Opinion (Jay, Wilson, Cushing)

The Debt Issue

Chief Justice Jay’s opinion as to the underlying debt issue is devoid of any stated rationale. That’s a nice way of saying he doesn’t explain himself. He just writes, “[I]f the state of Georgia has a right to the debt, due originally from Spalding to Brailsford, it is a right to be pursued at common law…”⁸

Here, the majority appears to acknowledge that the underlying debt dispute is one that didn’t actually need to be heard in equity. A common law suit was sufficient.

What the hell are they even talking about, anyway? Common law? Equity?

Let’s break it down. We’re not going to be defeated by technical words. This is Lex Sans Latin, okay? There’s no gatekeeping here. Everybody can understand this.

At the time, there were two tracks for civil cases. A party could either file a case at common law, or in equity.

Common law cases are more likely to involve a jury, and to seek monetary damages.

Equity cases are probably going to be decided by a judge, not a jury, and they usually concern non-monetary damages.

Now, key point here. You only get to equity where common law isn’t a fit for the case at hand.

A party turns to equity when some injustice would arise under common law, either because the rules as written are inadequate to address the specific situation, or because there are no rules at all for the particular kind of dispute at hand.

I like the way Darren Lee puts it in his Plymouth Law Review article. He explains, “Equity developed as a shield to guard against common law injustices that arose from the rigid thirteenth century writ system. In order to be heard [at common law], the facts of a case had to fall within the scope of a particular writ, within a finite taxonomy of writs. Where the system failed, pleas were made directly to the king [in equity].”⁹

Think Of The Court As A Restaurant…

We can better understand these strange categories by thinking of the Court as a restaurant — let’s say, the Court Café.

The Court Café has a menu with various dishes. As with any restaurant (with the exception of the Cheesecake Factory), the menu isn’t unlimited, right? There is finite list of dishes offered. The dish you are looking for is either on the menu, or it’s not.

Those dishes on the menu are your common law causes of action. There is a finite variety of things you can sue for at common law. The scope of common law causes of action consists of what’s on the menu.

Got it?

A case in equity, then, is akin to an off-menu dish. When filing in equity, you’re asking the chef to make you something off menu.

But the Court Café has a rule about ordering off menu — you can’t just trouble the chef without first cracking open the menu and seeing if you can enjoy something that’s already offered.

In order for the chef to exert the effort to abandon the dishes on the menu (common law) to whip up something for you in the back (equity), you have to demonstrate you can’t have anything on the menu. Maybe you can’t have gluten, you’re allergic to nuts, you can’t have dairy — doesn’t matter, pick your sad poison.

Only after you are sure common law isn’t going to work for you can you initiate a cause of action in equity. If you want to be in equity, you have to show that nothing else on the menu would suffice for your dinner.

What the Court rules in Brailsford II is that Georgia will have to withdraw its current equity case and file a common law suit instead.

Apparently, the Court felt there was at least one sufficient dish for the State of Georgia.

Come on, Georgia. You should’ve read the menu!

The Injunction Issue

As for the injunction, the majority reasons that, considering principles of fairness, the injunction should stay in place. Not forever, just until the Court’s next term. Unwavering from his opinion in Brailsford I, Chief Justice Jay writes, “[T]he money ought to be kept for the party to whom it belongs.”

Because of the time constraint on the injunction, the State of Georgia would have to act fast and file a common law action by August of 1793. Otherwise, Brailsford could collect his debt from Spalding and make it to England in time for supper.

Dissenting Opinions:

Justice Iredell

While Chief Justice Jay kind of just proclaims the Court’s opinion, Justice Iredell engages in a methodical rationale more characteristic of…you know…legal analysis.

In his dissent, Justice Iredell argues this case should remain as an action in equity because the common law doesn’t actually provide an adequate remedy for the State of Georgia.¹¹

In other words, Justice Iredell buys Georgia’s argument that it can’t have seed oils. And it has celiac disease.

Where a majority of the Court is content to kick Georgia out of equity and force it to bring a common law action to collect the debt, Justice Iredell just doesn’t see a viable path forward for Georgia outside of equity. Therefore, he reasons, the case should remain with the Supreme Court as it is.

He writes, “[W]ithout the equitable interposition of this court, I think there will be a defect of justice; for it is obvious to me, either that the state can have no remedy at law, or, at least, that the remedy at law will not be ‘plain, adequate and complete.’”¹²

Chief among Justice Iredell’s concerns is Spalding might end up paying his debt twice.¹³ Remember, Brailsford has a legit judgment against Spalding.¹⁴ The guy’s definitely paying his debt at least once if nature takes its course without the Court’s intervention.¹⁵

Now, imagine that Georgia swoops in after Spalding’s already paid Brailsford and successfully makes its case that actually, Spalding owes it the money. That would be bad news for Spalding. And it would be a kind of complicated mess to untangle.

Justice Iredell laments, “[W]ould it not be monstrous, after a judgment rendered under such circumstances, to compel [Spalding] again to pay the same debt ? There is neither principle nor precedent for so harsh and oppressive a doctrine.”¹⁶

Justice Iredell argues the Court is the only entity capable of ensuring justice is carried out here, one way or another. He writes, “[I]t 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 exclusive on the question of right; or that the state of Georgia can be enabled to maintain her claim, upon its merits…”¹⁷

Justice Iredell doesn’t simply declare that common law remedies are inadequate here. He actually turns his gun on one specific, popular common law action and argues even that remedy doesn’t apply here.¹⁸

Specifically, Justice Iredell addresses the argument that the State of Georgia can file an action of assumpsit against Brailsford.¹⁹

Nasty Latin, that is. Let’s purge it.

Assumpsit is a Latin word for “he has undertaken,” or “he has promised.”

Black’s Law Dictionary, the essential legal dictionary that everybody who studies the law should own, explains that the common law action of assumpsit is a “liberal…action, applicable to almost every case where money has been received which in [fairness] and good conscience ought to be refunded.”²⁰ It’s a broad remedy for when maybe there isn’t a legit contract on the table, but someone’s been wronged nonetheless.

In his dissent, Justice Iredell himself describes the action of assumpsit as “the legal panacea of modern times,” which “may, perhaps, be beneficially applied to a great variety of cases.”²¹ An action of assumpsit clearly casts a wide net.

Nonetheless, Justice Iredell still does not believe this apparently broad and popular action applies here because an assumpsit action would be useless to Georgia before Brailsford collects the debt.²² He notes, “In the present instance, the money has not been received by Brailsford…”²³ Therefore, he reasons, an assumpsit action is not an adequate remedy.²⁴

Justice Iredell concludes it is appropriate for the Court to keep this case within its purview because the State of Georgia has made some viable claim to the debt, and the debt is in danger of being paid to someone else.²⁵

Justice Blair

Justice Blair expresses his opinion in a logical, surgical manner.

He differs from Justice Iredell in that he does see viable common law remedies here.²⁶

Nonetheless, Justice Blair reasons, the injunction should stick and the Court should keep the case in equity.²⁷

In other words, Justice Blair accepts that Georgia can dine at the Court Café, because the Café offers white rice, and Georgia has no intolerance to it. However, Justice Blair argues white rice alone is not a meal.

Justice Blair recognizes potential common law avenues, but he doesn’t find them to be adequate. So, he thinks it’s fair for Georgia to ask the chef to make him something special.

Justice Blair expresses that his chief concern is Brailsford getting paid and fleeing the country, which would leave the State of Georgia and Spalding to deal with the mess without a critical party being present.²⁸ This, Justice Blair argues, would be a “failure of justice.”²⁹

Justice Blair concludes, “Since, therefore, there is no other court that can bring all the parties before them, and do general and complete justice, it is my opinion, that the bill in equity ought to be sustained; and that the subject should be no further referred to a court of law, than to obtain an opinion upon the legal title to the debt in controversy.”³⁰

Final Reflections

I think Iredell and Blair raise some fair points about fairness in their respective dissents. Iredell is concerned Spalding may have to pay twice if this case is kicked into common law. Blair is concerned about Brailsford getting in his Austin Powers Mini Cooper and jetting off across the pond as soon as he’s paid.

Both concerns, I think, are founded. And the issue before the Court is definitely unusual, which gives it the color of a case suitable for equity.

But I think the majority of the Court has it right here. The common law apparently provides some potential remedies for the State of Georgia. Even Justice Blair in his dissent concedes there are at least a few avenues Georgia can take to collect the debt in common law.

The rule is, where common law may provide an adequate remedy, equity is a path unavailable. I see an adequate remedy here, so I’m comfortable closing the door to equity.

As inconvenient or as complicated as these common law avenues may be considering the judgment rendered against Spalding in Georgia’s Circuit Court, they are available to Georgia. I do not think the Court needs to coddle the State here. Let Georgia fight it out!

A Word About John Jay…

I have another thought.

Reading Chief Justice Jay’s legal opinions makes me wonder if he saw his role as Chief Justice as more facilitative and administrative than judicial. Maybe he consciously took a step back to allow other Justices to be more outspoken than he was on the bench.

The written records we have of Jay’s judicial opinions from the bench are…sparse. There’s not much reasoning there. John Jay, as Chief Justice, is surprisingly succinct, bordering on conclusory. What I mean is, he doesn’t really explain himself much.

I know the guy’s not unimpressive. He took a freaking brick to the face in a street riot causing “two large holes in his forehead.”³³ That’s why he only wrote a handful of The Federalist Papers, while Alexander Hamilton and James Madison did most of the heavy lifting.³⁴ He needed time to recover.

(Freaking John Wick on the bench here. He takes damage and doesn’t say much.)

I’m not alone in my criticism. We saw in Hayburn’s Case how the Attorney General, Edmund Randolph, wrote a letter to a friend about Chief Justice Jay, specifically criticizing his decisions as being without “method,” “legal principle,” or “system of reasoning.”³³

I think Randolph has a point.

Chief Justice Jay’s legal opinions thus far really don’t give us much to chew on. Perhaps he was being deferential to his fellow Justices, but I wish he’d give us more, especially where he is writing for the majority.

I don’t know. Maybe I should be happy there’s less to read.

You Be The Judge

I want to know what you think about this case. Vote in our poll and leave a comment telling us what you think.

Studying this case for class? I offer 1-on-1, virtual law school tutoring. Learn more here.

Here’s a Bluebook cite for ya – Johnathan J. Azar, Before You Dine With the Devil, Read the Menu: Georgia v. Brailsford II (1793) (Apr. 3, 2026) 

FOOTNOTES

1. Georgia v. Brailsford, 2 U.S. (2 Dall.) 415, 415 (1793). ↩︎
2. Id. ↩︎
3. Georgia v. Brailsford, 2 U.S. (2 Dall.) 415, 417 (1793). ↩︎
4. Id. ↩︎
5. Thomas Johnson to George Washington, Jan. 16, 1793, Founders Online, Nat’l Archives https://founders.archives.gov/documents/Washington/05-12-02-0002 (original in The Papers of George Washington, Presidential Series, vol. 12, 16 Jan.–31 May 1793, ed. Christine Sternberg Patrick & John C. Pinheiro, Univ. of Va. Press 2005, pp. 1–2). ↩︎
6. Id. ↩︎
7. Id. ↩︎
8. Id. (emphasis added) ↩︎
9. Darren Lee, The Dynamics of Equity and Common Law: Historical Perspectives and Future Directions, 17 Plymouth L. Rev. art. 2 (2024), https://pearl.plymouth.ac.uk/cgi/viewcontent.cgi?article=1068&context=plr. ↩︎
10. Diego Velázquez, Tavern Scene with Two Men and a Girl (c. 1618–1619), PICRYL, https://picryl.com/media/tavern-scene-with-two-men-and-a-girl-4a61eaa-b26244. ↩︎
11. Georgia v. Brailsford, 2 U.S. (2 Dall.) 415, 417 (1793). ↩︎
12. Id. at 415. ↩︎
13. Id. at 416 ↩︎
14. Id. ↩︎
15. Id. ↩︎
16. Id. ↩︎
17. Id. ↩︎
18. Id. ↩︎
19. Id. ↩︎
20. Assumpsit, Black’s Law Dictionary (12th ed. 2024). ↩︎
21. Id. at 416. ↩︎
22. Id. ↩︎
23. Id. ↩︎
24. Id. ↩︎
25. Id. ↩︎
26. Id. at 417 ↩︎
27. Id. ↩︎
28. Id. ↩︎
29. Id. ↩︎
30. Id. ↩︎
31. Dan T. Coenen, Fifteen Curious Facts about The Federalist Papers, Advocate, Fall 2007/Winter 2008, at 3, https://digitalcommons.law.uga.edu/fac_pm/2/. ↩︎
32. Id. ↩︎
33. Letter from Edmund Randolph to James Madison (Aug. 12, 1792), in Maeva Marcus & James R. Perry eds., The Documentary History of the Supreme Court of the United States, 1789–1800, vol. 6, at 68 (Columbia Univ. Press 1998) ↩︎

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