Brinsfield vs. Carter.

same, conveying to you a fee simple title thereto when you pay into the treasury of the State the sum of eighteen dollars, but if you do not pay the same within two years from the date of the drawing, you forfeit your right to receive a grant to the land drawn to your name, and the same shall revert to the State. When he became a party to the contract by giving in his name, he stipulated that if he should draw a lot of land, and fail to pay into the treasury the sum of eighteen dollars within the time prescribed, and obtain a grant to the land, the same should revert to the State. That is to say, all his right to have a grant issued to him under the act, should revert to the State; for the title to the land was in the State until it passed out by grant. Viewing it in the light of a contract between the drawer and the State, he having failed to comply with the terms of it on his part, no right to the land vested in him, but his right to have a grant issued to him was forfeited, by the express terms of the contract itself; consequently, no right was violated or impaired which he had to the land under the contract, by the passage of the Act of 1843. An argument was advanced by the plaintiff in error that the Act of 1825 required the drawer to pay taxes for the land; that, also, was a part of the contract. He was to pay taxes for the land drawn, whether granted or not, until he should relinquish the same in writing to the use of the State. But, we apprehend, when he forfeited his right to the grant by failing to comply with the terms of the contract within the two years, he was as perfectly released from paying taxes for it as he would have been by a relinquishment in writing. In the one case he could release himself from paying taxes by an immediate relinquishment in writing, in the other he could pay the taxes for two years, and his right was forfeited by the terms of the act, and no relinquishment was necessary; the inchoate right of the drawer to a grant was then abandoned to the State by his own act, and in the manner stipulated in the contract, if it is to be considered a

contract.

The land then belonging to the State, it was competent for the sovereign power of the State to dispose of it, as was done by the Act of 1843. Nor has the drawer any just cause of complaint against the State for making such disposition, Instead of enforcing the forfeiture incurred by the drawer in not complying with the terms of the Act of 1825, at the end of the two years, the Legislature not only reduced the price of the grant fee to a mere nominal sum, but extended the time, from year to year, until the

Brinsfield vs. Carter.

first day of October, 1844; thereby giving him every opportunity to comply with the terms of the act, if he had not voluntarily abandoned his rights under it, as it was his privilege to do.

The argument for the plaintiff in error assumes the ground, that the State had parted with her sovereignty over the land in question, and insists that she had no right to resume it until after an inquest of office, or until after office found, according to the rule of the Common Law. We place our decision on the ground, that the State never intended, nor did not, by either of the Acts of 1825 or 1826, part with her sovereignty over any portion of her territory until the same was actually granted, in the manner prescribed by those acts. If the State had once parted with her sovereignty over the land in question, by grant to one of her citizens, and afterwards it became the property of an alien by purchase, or had escheated, the State could not have resumed her right of sovereignty over it until after office found in her favour. The Common Law rule applicable to the Crown in Great Britain, would apply to the State in this country. But the State is not attempting by the Act of 1843 to re-invest herself with title to land with which she has once parted, she is only exercising her sovereign authority to dispose of lands which originally belonged to her and which have never been granted to any body; a part of her eminent domain. In this view of the question, it was competent for the General Assembly to direct the manner in which the same should be disposed of. The second section of the Act of 1843 notifies all parties interested, who may be disposed to avail themselves of the privilege of partaking of the bounty of the State under the provisions of the several Land Lottery Acts, to come forward and obtain grants from the State, on or before the first day of October, 1844. The third section of the act provides that after the first day of October, 1844, any citizen of this State, by paying into the treasury certain sums of money therein specified, shall be entitled to receive from the State, in his, her, or their name, a grant to any ungranted lot of land in any of the specified counties. Hotchkiss' Dig. 143. The lessor of the plaintiff obtained his grant under this act, which for the reasons already given, is not in our judgment a violation of the constitution. It is however worthy of remark, that in this case the defendant is not the drawer of the lot of land, nor does the record disclose the fact that he derives his title through or from the drawer; consequently, the rights claimed for the drawer, or for persons claiming

Brinsfield vs. Carter.

title through him, if well founded, could not properly attach to him, who is a stranger to the drawer. As it regards the question of notice which was urged in the argument, we have only to say, if any was necessary, the Act of 1843 was a public statute of which all the people of this State were bound to take notice.

[2.] It is true the word "grant" is omitted in the third section of the Act of 1843, but it is our duty to give effect to the statute, provided it can be done without a violation of any legal rule. When we take into consideration the intention of the act as derived from its caption as well as the subject matter, as appears from the other sections of the statute, and calling to our assistance the word "grant," as applied in the other parts of the act, we are of the opinion the omission of the word “grant” in the third section is sufficiently explained. The fourth section provides where two or more persons apply for the same lot at the same time, the Surveyor General shall place each name of all applicants in a hat, and the first name drawn out shall be entitled to the grant, on paying into the treasury the sum before recited, &c. What grant? the grant contemplated by the third section, which declares "that from and after the said first day of October, 1844, any person, a citizen of this State, by paying into the treasury the sum of two thousand dollars shall be entitled to receive from this State, in his, her or their name, to any ungranted lot of land in the connties aforesaid. The word "grant," is evidently an omission by mistake, or a mere clerical error which does not make void the statute, and the Court below did not err in so . ruling.

From the view which we have already taken of this question, it will be perceived we hold the title to the lot of land in question was in the State, until granted under the authority of the act of 1843, on the 2d day of July, 1845, to the lessor of the plaintiff.

[3.] We are also of the opinion that the Statute of limitations did not run against the State. In England the King is not bound by the Statute of limitations, for no laches can be imputed to him. The maxim is nullum tempus occurrit regi. This is a privilege which attaches to the Sovereign. The people cannot attend to their rights except through their officers; therefore they ought not to suffer by the lapse of time, or the negligence of those officers. 1 Bla. Com. 247; Ball. on Limit. 18; Bagley et al. vs. Wallace, 16 Sergeant &Rawle, R. 245, 250; The People vs. Gilbert, 18 John. R. 227.

McGough & Crews vs. The Insurance Bank of Columbus and Me Dougald.

In Stoughton et al. vs. Baker et al. Chief Justice Parsons says: "No laches can be imputed to the Government, and against it no time runs so as to bar its rights." 4 Mass. R. 528. In Lindsey et al. vs. The lessee of Miller, Mr. Justice McLean, delivering the opinion of the Court, thus expresses himself. "It is a well settled principle, that the Statute of limitations does not run against a State. If a contrary rule were sanctioned, it would only be necessary for intruders upon the public lands to maintain possession until the Statute of limitations shall run, and then they would become invested with the title against the Government, and all persons claiming under it. In this way the public domain would soon be appropriated by adventurers. It is only necessary, therefore, to state the case, in order to show the wisdom and propriety of the rule, that the statute never operates against the Government.” 6 Peters R. 673. From the best consideration which we have been enabled to give this case, we are of the opinion that there is no error in the record, and that the judgment of the Court below should be affirmed.

No. 21.-McGOUGH & CREWS, plaintiffs in error vs. THE InsuRANCE BANK OF COLUMBUS, and DANIEL MCDOUGALD, defendants in error.

[1.] A party having elected to proceed at law, equity will not interpose until he has pushed his remedy to every available extent; neither will a Court of Chancery anticipate that the legal redress may not prove effectual.

[2.] The garnishment acts of this State may not, either in express terms or by fair implication, have ousted Chancery of its previous jurisdiction over the same subjectmatter; still, if a bill were filed, it would be demurrable on the ground that there was an ample remedy at law, unless there was something peculiar in the circumstances of the case.

[3.] A charge in a creditor's bill that he fears that his debtor, if he gets possession of funds which he is proceeding to collect under execution, will apply them to the payment of other liens, having no priority over his own, will not justify the interposition of a Court of Chancery. He must state the ground of his fears, or allege some issu【able fact, such as a fraudulent combination between his debtor and other creditors, to entitle him to equitable relief.

In Equity. From Muscogee Superior Court. Tried upon demurrer, before Judge ALEXANDER.

Term, 1846.

McGough & Crews vs. The Insurance Bank of Columbus and McDougald.

For the facts stated in the bill, and the error assigned, see the decision of the Supreme Court.

JOHNSON & WILLIAMS, for plaintiffs in error.

The Court erred in dismissing the bill.

Because the plaintiff had a right to file the bill without sanction and injunction. Prince, 462. And, upon the final hearing, the Court should have decreed upon the facts as alleged and proven. Bland 201.

Because, though an injunction was not awarded in the first instance, the Court might have so ordered during the progress of the cause. 1 Maddock, 352; 2 Paige, 355; 18 Ves. Jr. 552; 3 Black. 344.

If there is equity in the bill, and chancery is not deprived of its jurisdiction, though a remedy at law may be given, the jurisdiction is concurrent. 1 Black. 62; 4 Cowen, 717; 17 John. 388; 9 Ves. Jr. 464.

The equity of the bill is not destroyed by suing out of the garnishment. The remedy at law is not adequate, but uncertain and contingent, and the doctrine of election cannot apply. 7 Ala. R. 942; 1 Smith Chan. Prac. 561; 4 John. 84.

There is equity in the bill. 4 John. 671, 687; 2 John. 283, 144; 1 Paige, 168; 2 McCord, 410; 7 Ala. 319.

H. HOLT, for the defendants in error.

By the Court-LUMPKIN, J. delivering the opinion.

The firm of McGough & Crews obtained a judgment, in the Superior Court of Muscogee County, against the Insurance Bank of Columbus, for $5,945, on which an execution was issued, and placed in the hands of the Sheriff, who made thereon a return of nulla bona. The Insurance Bank of Columbus, the defendant in the fi. fa. obtained sundry judgments against Daniel McDougald, and McDougald & Robinson, which were also placed in the hands of the Sheriff of the same County, and by him levied on a large amount of property, belonging to McDougald, which was advertised for sale. McGough & Crews, in January, 1846, caused summons of garnishment to be issued and served on McDougald, requiring him to answer what he was indebted to the said Bank.