Parker v. Hughes , 25 Ga. 374 ( 1858 )

By the Court.

Benning, J.

delivering the opinion.

This Court has several times held, that a grant from the State, cannot be set aside in a proceeding to which, the State Is not a party. 20 Ga. 571. 17 Ga. 547. See Cressup vs McLean, 5 Leigh 381. I think, that the proceeding ought to be one in which, the State is the party plaintiff. In that case, there cannot arise any conflict between departments of the Government.

[1.] In our judgment the Court was right in sustaining the demurrer.

Was the Court also right in refusing to allow the complainant to amend the bill, by making the State a party through the Governor, or the Solicitor General ?

We think so. The Governor or the Solicitor General could not be made a party complainant, without his own consent; and it does not appear, that the complainant, Parker, had obtained such consent; it rather appears that he had not obtained such consent. Besides, it is a question not free from difficulty, whether the complainant, Parker, acquired any right by his survey. If he did not, it is clear, that he has no right to site, and, therefore, clear that no amendment could make a bill of his, good. •

This last question was not argued at all on one side, and was not much argued on the other.

We are not prepared to say, that the Court below erred in refusing the amendment.

I remark for myself, that I see no objection to a bill by the-Governor to set aside this grant. The case, I feel sure, is .one in which, in England, an information would lie. 1 ’ Dan. Ch. Pr. chap II Sec. 1. In this State, it may be doubtful* whether the proceeding by information, has not been abolished ; but whether it has been or not, the Judiciary Act of 1799 says, that “ in all cases where a common law remedy is not adequate” the Superior Courts shall exercise the powers of a Court of Equity; “ and the proceedings in all such cases shall be by bill. ” Pr. Dig. 447

Judgment affirmed,