Miller v. Saunders , 18 Ga. 492 ( 1855 )

By the Court.

Starnes, J.

delivering the opinion.

[1.] Accurately, this is not a case in which a supplemental bill should be filed. It would have been better if the proceeding had been by petition, praying an interlocutory order. But this objection does not touch the merits of the case, and is little more than a question of form. If the complainants were entitled to have their .prayer granted, the Chancellor might, even in this proceeding, so shape his order as to grant what is asked. It would have been hardly just, therefore, for him to have turned these complainants out of Court on this ground, though he might have directed an amendment, in point of form.

[2.] It is true, too, that correctly speaking, there is no such 'writ as a writ of quia timet. But this, also, is mere irregularity as to form. In point of substance, the writ asked for here, is a writ of prevention, to accomplish the ends of precautionary justice; the prayer is for such an interposition of the Chancellor as will prevent irreparable mischief; and such is the office of a bill of quia timet. Hence, although the form bo inaccurate, in praying for the writ of quia timet; yet, if the proceeding be sufficient, in other respects, the Court may .act upon it. Is the proceeding otherwise sufficient?

[3.] We are of opinion that it is not; because, in the first place, this proceeding rests upon the first bill as a basis, whatever may be its form; and the facts contained in that first bill are not set forth, nor is that bill made an exhibit; nor does it appear any where in the record before us. The pleader has contented himself with a general reference to that bill, as having been filed, and with a statement, that “ the charges and allegations in said bill are such as entitle them to recover.” What these allegations are, does not appear; and we are, consequently, not enabled to say whether this statement be correct or not. Nor does it appear, whether or not the first bill was before tho Chancellor when the order was granted. And therefore it is, that according to the record, that judgment has been improvidently rendered.

[4.] But there appears to us another reason why this is so. Admitting that it is shown that these complainants are entitled to recover these slaves, and hire for them, at the rate of twelve hundred and twenty dollars a year; yet, they have not stated, any where in the record, what is the value of the slaves, nor for how many years they are entitled to recover hire, nor how much, in the aggregate, they are thus entitled to recover. So that no guide or measure is afforded to the Sheriff, by which he may determine the mount of the bond and arrange the security.

On this ground also, the judgment should be reversed.