Lamb v. Harris , 8 Ga. 546 ( 1850 )

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] We recognise the right of the citizen to be relieved against a grant which has been improperly issued by the State, in a proper case made ; for, as Sir Edward Cohe tells us, the Chancellor in England derives his name from his power of cancelling (a cancellando,) the King’s letters patent, when granted contrary to law. 4 Inst. 88. And this jurisdiction belongs, undoubtedly, to the Superior Courts in this State.

[2.] But we are of the opinion that this bill is defective in two particulars : First, the complainant does not show proper diligence onhispart. Itis true, that the information obtained in the Executive and Surveyor General’s offices was well calculated to lull and mislead him; but failing to obtain the grant, he should have applied at least to the Secretary of State’s office, where the grant, if issued, would have been recorded. Besides, if the grant had been taken out, and the fees paid, there would have been evidence of the fact, both in the Treasurer’s and Comptroller General’s Departments. From all of these sources, then, especially the Secretary of State’s office, information should have been sought. So much for the conduct of the complainant.

[3.] But what has the plaintiff in ejectment done to deprive him of the benefit of his grant from the State? Itis true, thatit is alleged in the bill, that Harris knew of the mistakes at Milledgeville which had misled Whitlock. But there is no charge of collusion between Harris and the State House officers, or that he was in any way connected with the matter. Indeed, the bill itself expressly repudiates the idea that there was any fraud in the transaction.— Suppose the entry upon the books of the Executive Department had been fraudulently put there, still, if Harris had no agency or participation in it, he would he clearly entitled to his grant, under the Act of 1845.

Under these circumstances, we do no. feel at liberty to interfere with the grant from the State to Harris, nor to arrest him in the prosecution of his rights acquired under it.

If Whitlock has been injured by the public functionaries of the people, it is meet and proper that the representatives of the people should administer to him adequate redress.

Judgment affirmed.