
    Fowler and Wife v. Saunders.
    [October, 1798.]
    Equity Practice — Imported Bill — Effect.—Bill, stating the case too imperfectly to bring the merits of the cause before the court, dismissed with costs.
    Same — Quia Timet — What It Must Show. — Bill, in nature of quia timet, must shew grounds for sustaining it.
    Same — Same—Against Infant. — Especially if it be against an infant, and relate to transactions before her birth, and of which a discovery, from her, was not to be expected.
    William Fowler, and Susanna his wife, filed their bill in the high court of chancery, stating, That Alexander Saunders was the former husband of the plaintiff Susanna ; and that Thomas Sale, her father, made his will on the 4th of December, 1789, and devised as follows: 1 ‘I lend unto my daughter Susanna Saunders and her husband. Alexander Saunders all the negroes that they have in possession at this time, with their future increase from the date of this my will during their natural lives, then after their deaths to be equally divided among her children if she should have any lawful issue; but if she should die without lawful issue my desire is, that the above negroes with their increase shall return into my estate, and to be equally divided between my son Humphrey Sale and my daughter Mary Sale.” . That Alexander Saunders, at the death of Thomas Sale, had been in possession of the slaves nearly three years. *That Saunders had, by the plaintiff Susanna, one daughter, who is an infant; and her guardian demands the slaves as her property, upon the ground that the testator had permitted them to remain in the service of the father, although the latter had never given them to him or his wife, except by his will aforesaid. That the plaintiffs have been in possession of the slaves about two years; and that, in order to save expense, it was agreed that the right to them should be submitted to the court of chancery. The bill therefore prayed that the infant might answer by her guardian, and be decreed to. release her right to the slaves during the lifetime of the plaintiff Susanna.
    The answer of the guardian as such (none being filed in the name of the infant) states that Alexander Saunders had been possessed of the slaves for three years only; and that they are now in the possession of the plaintiffs; but contends that they belonged to Saunders under the act of 1787, and submits the cause to the court.
    There is a copy of the will of Thomas Sale, but no other evidence in the cause: which was heard by consent in the court of chancery, without any writ or order appointing a guardian ad litem; and that court, presuming a complete gift from Thomas Sale to Saunders and his wife at the time they took possession, declared that it would have dismissed the bill, “but the parties, in case of a decision in affirmance of the defendant’s title, having proposed that an account of the slaves and their profits should be taken,” one was accordingly directed; and the plaintiffs appealed to the court of appeals.
    
      
      See same case reported in Wythe 322, with note hy editor of second edition.
    
   PENDLETON, President,

delivered the resolution of the court, that the decree was to be reversed for the reasons contained in the following- entry to be made in the cause:

“The court is of opinion, that the facts stated in the proceedings are too imperfect to enable the court to decide upon the supposed merits of the cause, arising under the several acts of assembly therein mentioned; but if it were *otherwise, it would be improper to discuss the subject upon this unusual bill, lest injury should be produced to the appellee. The bill is brought by a mother (or perhaps, without her knowledge, by a step father) in possession of slaves, claiming them under the will of her father, against an infant daughter, stating the adverse claim of the daughter to the same slaves, and drawing her into a discovery and contest, and finally into a release of that claim: It is, in its nature, a bill quia timet, without even a suggestion of the usual and proper grounds for sustaining such a proceeding; since a discovery, from an infant, of a transaction prior to her birth, could not have been expected ; and no testimony having been taken, it is supposed there existed none to be preserved; and that the said decree is erroneous. Therefore, it is decreed and ordered that the same be reversed and annulled, and that the appellee pay to the appellants their costs by them expended in the prosecution of their appeal aforesaid here; and this court proceeding to make such decree as the said high court of chancery should have pronounced, it is further decreed and ordered, that the appellants’ bill be dismissed, and that they pay to the appellee her costs by her about her defence in the said high court of chancery expended. ’ ’  