doctrine is applied to cases of annuities, charged on the personal estate.1 § 845 a. Indeed, the doctrine may now be deemed well established, that the bequest of the use of the residue of the personal estate of the testator to a legatee for life, or for a shorter period, with a bequest over to other legatees, does not give the legatee for life, or for a shorter period, the right to the possession of the fund in the mean time. But the executor is entitled to retain the fund in his own hands, and to pay over the income thereof to the legatee for life, or for a shorter period, as it occurs from time to time. And, at all events, if he suffers the fund to go into the possession of such legatee, to enable him to enjoy the due use or income thereof, he is bound to take ample security for the safe return of the fund, at the termination of the particular estate therein. If the executor omits to take such security, he may become personally responsible for any loss accruing thereby.2 § 846. The same remedial justice will be applied to other cases, as well as to legacies and personal annuities. Thus, for instance, where a future interest in personal property is assigned by the owner to his creditors, the latter may come into a court of equity to have the property secured to their future use. On one occasion of this sort, Lord Hardwicke said, that nothing was better settled than that, "whenever a demand was made out of assets certainly due, but payable at a future time, the person entitled thereto might come against the executor to have it secured for his benefit, and set apart in the mean time, that he might not be obliged to pursue those assets through several hands. Nor is there any ground for the distinction taken between a legacy and a demand by contract. [So, where a life-interest in personal property is sold on execution against the owner of such life-estate, and the purchaser claims the absolute property, the remainder-men may, by a bill in equity, compel the purchaser to give security for the production of such property on the termination of his interest."] § 847. Upon the same ground, where, under marriage articles, Pt. 1, ch. 1, § 2, and note (d); 1 Mad. Ch. Pr. 178 to 181; Fearne on Conting. Rem. p. 413 (7th edit.), by Butler; id. 414; Covenhoven v. Shuler, 2 Paige, 123; Clark v. Clark, 8 Paige, 152. 1 Batten v. Earnley, 2 P. Will. 163; Slanning v. Style, 3 P. Will. 336, 337. 2 Clark v. Clark, 8 Paige, 152, 160; Covenhoven v. Shuler, 2 Paige, 122. 3 Johnson v. Mills, 1 Ves. 282, 283. 4 Ibid. 5 McDougal v. Armstrong, 6 Humph. 428; 6 Humph. 157; Bowling v. Bowling, 6 B. Monroe, 31. the plaintiff, in case she survived her husband, had a contingent interest in certain South Sea annuities, and a certain promissory note, which was specifically appointed for the payment of the same, to be allowed her, and the defendant had threatened to aliene the property and securities, on a bill Quia timet, a decree was made, that the defendant should give security to have the same forthcoming.1 § 848. So, where a party, seised of lands in fee, grants a rentcharge in fee, issuing thereout, and afterwards devises the lands to A. for life, with remainder to B. in fee, B. may maintain a bill 1 Flight . Cook, 2 Ves. 619; post, § 955. This doctrine is discussed at large in Eq. Abridg. 360, pl. 4; and the following extract shows the gradual establishment of it: "But what seems most proper to be inquired into under this head, is the reason and practice of limiting remainders in personal goods or chattels, for they, in their own nature, seem incapable of such a limitation, because, being things transitory, and by many accidents subject to be lost, destroyed, or otherwise impaired, and also the exigencies of trade and commerce requiring a frequent circulation thereof, it would put a stop to all trading, and occasion perpetual suits and quarrels, if such limitations were generally tolerated and allowed. But yet, in last wills and testaments, such limitations over of personal goods or chattels have sometimes prevailed, especially where the first devisee had only the use or occupation thereof devised to him. For then, they held the property to continue in the executors of the testator, and that the first devisee had no power to alter or to take it from them. Yet in either case, if the first devisee did actually give, grant, or sell such personal goods or chattels, the judges would very rarely allow of actions to be brought by those in remainder for recovery thereof. Hence it came to pass, that it was a long while ere the judges of the common law could be prevailed on to have any regard for a devise over, even of a chattel real, or a term for years after an estate for life limited thereon; because the estate for life being in the eye of the law of greater regard and consideration than an estate for years, they thought he, who had it devised to him for life, had therein included all that the devisor had a power to dispose of. And though they have now gained that point upon the ancient common law, by establishing such remainders, and have thereby brought that branch out of the chancery (where they frequently helped the remainder-man, by allowing of bills to compel the first devisee to give security), yet it was at first introduced into the common law, under the new name of Executory Devise, and took all the sanction it has since received from thence, and not as a remainder (for which vide title Devise). But as to personal goods and chattels, the common law has provided no sufficient remedy for the devisee in the remainder of them, either during the life of the first devisee, or after his death; therefore the chancery seems to have taken that branch to themselves in lieu of the other, which they lost, and to allow of the same remedy for such devisee in remainder of personal goods and chattels, as they before did to the devisee in remainder of chattels real, or terms for years." See also Fearne on Conting. Rem. and Ex. Dev. p. 401 to 415, by Butler (7th edit.); ante, § 843, 844; Bacon, Abridg. Uses and Trusts, G. 2, by Gwillim. [So a husband who has a contingent interest in property placed in trust on separation, may, it seems, apply to equity to protect the fund against mismanagement of the trustees. Cranston v. Plumb, 54 Barb. (N. Y.) 59. Equity will not, on ground of apprehended desertion by husband, issue an injunction at suit of wife against his conveying away his property. Anshutz v. Anshutz, 1 C. E. Green, 162.] Quia timet, to compel A. to pay the arrears during his life, for fear that otherwise the whole would fall on his reversionary estate.1 And the like principle would apply, under like circumstances, to a legacy, payable in futuro, and chargeable on land, to compel the tenant for life to pay or secure a proportion of the legacy.2 § 849. Another case of the application of the remedial justice of courts of equity by a bill of Quia timet is in cases of sureties of debtors and others. We have already seen, that if a surety, after the debt has become due, has any apprehension of loss or injury from the delay of the creditor to enforce the debt against the principal debtor, he may file a bill of this sort to compel the debtor to discharge the debt or other obligation, for which the surety is responsible. Nay, it has been insisted (as we have also seen) that the surety may come into equity, and compel the creditor to sue the principal, and collect the debt from him in discharge of the surety, at least, if the latter will undertake to indemnify the creditor for the risk, delay, and expense of the suit. § 850. So, courts of equity will decree the specific performance of a general covenant to indemnify, although it sounds in damages only, upon the same principle that they will entertain a bill Quia timet, and this not only at the instance of the original covenantee, but of his executors and administrators. Thus, where a party had assigned several shares of the excise to A., and the latter covenanted to save the assignor harmless in respect to that assignment, and to stand in his place, touching the payments to the king, and other matters, and afterwards the king sued the assignor, for 1 Hayes v. Hayes, 1 Ch. Cas. 223. 2 Ibid. 3 Ante, § 327, 330, 639, 722, 729; Mitf. Eq. Pl. by Jeremy, p. 148; King v. Baldwin, 2 Johns. Ch. 561, 562; Hayes v. Ward, 4 Johns. 132; Nisbet v. Smith, 2 Bro. Ch. 581 (Belt's edit.), and note (5); Ranelaugh v. Hayes, 1 Vern. 190; Stephenson v. Taverners, 9 Gratt. 398; King v. Baldwin, 2 Johns. Ch. 561, 562; Hayes r. Ward, 4 Johns. Ch. 132. The cases of Rees v. Berrington, 2 Ves. Jr. 540, and Nesbit v. Smith, 2 Bro. Ch. 578, do not seem to establish this principle of relief against the creditor. But in the case of Wright v. Simpson (6 Ves. 734), Lord Eldon seems to admit, that the surety might have a right to compel the creditor to proceed against the debtor under some circumstances. But, then, in such a case, the surety is compellable to deposit the money in court for the payment of the creditor. So that, in fact, it is but the case of an indirect subrogation to the rights of the creditor, upon a virtual payment of the debt by such a deposit. See Hayes v. Ward, 4 Johns. Ch. 129 to 134, where this subject is much discussed, and the principles of the Roman law are fully stated. 4 Champion v. Brown, 6 Johns. Ch. 406; ante, § 730. [Griffin v. Orman, 9 Flor. 22. So one who has subscribed for stock in his own name, but in trust for another, may sue the cestui que trust in equity for indemnity against calls. Hemming v. Maddick, L. R. 7 Ch. App. 395.] money which the assignee ought to have paid, the court decreed that the agreement should be specifically performed, and referred it to a master, and directed, that toties quoties any breach should happen, he should report the same especially to the court, so that the court might, if there should be occasion, direct a trial at law in a quantum damnificatus. The court further decreed that the assignee should clear the assignor from all these suits and encumbrances within a reasonable time. The case was compared to that of a counter-bond, where, although the surety is not molested, or troubled for the debt, yet, after the money becomes payable, the court will decree the principal to pay it.2 [* § 850 a. In a recent case of considerable magnitude, the national court of last resort, upon thorough review of the cases, held, that where one had purchased land, which he knew at the time to be encumbered by a mortgage, under a contract that upon payment of the purchase-money, the vendor should convey "with general warranty of title," and had taken possession of the land and made extensive and valuable improvements upon it, and paid the purchase-money, he could not maintain a bill in equity, to compel the executor and heir of the vendor to remove the encumbrance, or make a deposit by way of indemnity to the vendee; and the decree of the Circuit Court, granting the relief asked, was reversed, on the ground that the parties must be content to stand upon the terms of their contract.] § 851. There are other cases, where a remedial justice is applied in the nature of bills Quia timet, as where courts of equity interpose to prevent the waste, or destruction, or deterioration of property, pendente lite, or to prevent irreparable mischief. But these cases will more properly come under review in our subsequent inquiries in matters of injunction.* 1 Ranelaugh v. Hayes, 1 Vern. 189; 8. c. 2 Ch. Cas. 146; Mitf. Eq. Pl. by Jeremy, 148. 2 Ibid.; Lee v. Rook, Moseley, 318; Pember v. Mathers, 1 Bro. Ch. 53; Champion v. Brown, 6 Johns. Ch. 405, 406; ante, § 327, 722, 729, 849. 3 [* Refeld v. Woodfolk, 22 How. 318.] 4 See also Jeremy on Eq. Jurisd. B. 3, ch. 2, § 2, p. 353, 354; 1 Mad. Pr. Ch. 183, 184; post, § 907, 908, 912 to 920. See also post, § 860, note. EQ. JUR.-VOL. II. CHAPTER XXII. BILLS OF PEACE. [* § 852, 853. Bills of Peace, to establish rights and save controversy. § 854. They determine, and establish, the rights of all parties. § 855. Cases illustrative of the remedy. § 856. This remedy applied to rights of fishery, common, &c. § 857. Will not be resorted to for two interests only. § 858. Nor to establish private right against public. § 859. But will, to quiet claims already established at law. § 860. This remedy is extended to other analogous cases.] § 852. WE come, in the next place, to the consideration of what are technically called BILLS OF PEACE. These bills sometimes bear a resemblance to bills Quia timet,2 which latter (as has been already stated) seem to have been founded upon analogy to certain proceedings at the common law, Quia timet. Bills Quia timet, however, are quite distinguishable from the former in several respects, and are always used as a preventive process, before a suit is actually instituted; whereas bills of peace, although sometimes brought before any suit is instituted to try a right, are most generally brought after the right has been tried at law. It is not my design, in this place, to enter upon the subject of the cases generally, in which courts of equity will decree a perpetual injunction; for that will more properly be examined under another head; but simply to treat of bills seeking an injunction, and strictly falling under the denomination of bills of peace. § 853. By a bill of peace we are to understand a bill brought by a person to establish and perpetuate a right which he claims, and which, from its nature, may be controverted by different persons, at different times, and by different actions; or, where separate attempts have already been unsuccessfully made to overthrow the same right, and justice requires that the party should be quieted in the right, if it is already sufficiently established; or if it should be sufficiently established under the direction of the court. The obvious design of such a bill is to procure repose 1 See Mitf. Eq. Pl. by Jeremy, 145, 148; Co. Litt. 100 (a). 2 Ante, § 825. Post, § 873 to 958. 4 See Eldridge v. Hill, 2 Johns. Ch 281, 282; Alexander v. Pendleton, 8 Cranch, 462, 468; 3 Wooddes. Lect. 56, p. 416, 417. |