§ 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 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 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 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.

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 v. 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.

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 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.2 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.3

[* § 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,

2

Champion v. Brown, 6 Johns. Ch. 406; ante, § 730.

Ranelaugh v. Hayes, 1 Vern. 189; s. c. 2 Ch. Cas. 146; Mitf. Eq. Pl. by Jeremy, 148.

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.

4 [* Refeld v. Woodfolk, 22 How. 318.]

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

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.

§ 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.2 These bills sometimes bear a resemblance to bills Quia timet,3 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

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 Mitf. Eq. Pl. by Jeremy, 145, 148; Co. Litt. 100 (a). 3 Ante, § 825. 4 Post, § 873 to 958.

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 from perpetual litigation, and, therefore, it is justly called a Bill of Peace. The general doctrine of public policy, which, in some form or other, may be found in the jurisprudence of every civilized country, is, that an end ought to be put to litigation, and, above all, to fruitless litigation; Interest reipublicæ ut sit finis litium. If suits might be perpetually brought to litigate the same questions between the same parties, or their privies, as often as either should choose, it is obvious that remedial justice would soon become a mere mockery; for the termination of one suit would only become the signal for the institution of a new one; and the expenses might become ruinous to all the parties. The obvious ground of the jurisdiction of courts of equity, in cases of this sort, is to suppress useless litigation, and to prevent multiplicity of suits.

§ 854. One class of cases, to which this remedial process is properly applied, is, where there is one general right to be established against a great number of persons. And it may be resorted to, either where one person claims or defends a right against many, or where many claim or defend a right against one.2 In such cases, courts of equity interpose in order to prevent multiplicity of suits; for, as each separate party may sue, or may be sued, in a separate action at law, and each suit would only decide the particular right in question between the plaintiff and defendant in that action, litigation might become interminable. Courts

1 See Eldridge v. Hill, 2 Johns. Ch. 281, 282; Alexander v. Pendleton, 8 Cranch, 462, 468; 3 Wooddes. Lect. 56, p. 416, 417.

2 Jeremy on Eq. Jurisd. B. 3, ch. 2, § 1, p. 343; Eldridge v. Hill, 2 Johns. Ch. 281; Alexander v. Pendleton, 8 Cranch, 462, 468.

'Elme Hospital v. Andover, 1 Vern. 266; Hanson v. Gardner, 7 Ves. 309, 310; Ware v. Horwood, 14 Ves. 32, 33; Dilley v. Doig, 2 Ves. Jr. 486; Cooper, Eq. Pl. Introd. xxxiv.; Eldridge v. Hill, 2 Johns. Ch. 281.

of equity. therefore, having a power to bring all the parties before them, will at once proceed to the ascertainment of the general right; and, if it be necessary, they will ascertain it by an action or issue at law, and then make a decree finally binding upon all the parties.1

855. Bills of this nature may be brought by a parson for tithes against his parishioners; by parishioners against a parson to establish a modus; by a lord against tenants for an encroachment under color of a common right; or by tenants against the lord for disturbance of a common right; by a party in interest to establish a toll due by a custom; by a like party to establish the rights to profits of a fair, there being several claimants; by a lord to establish an enclosure, which he has approved under the statute of Merton, and which his tenants throw down, although sufficient common of pasture is left.2

Eden on Injunctions, ch. 16, p. 358, 359, 360; Cooper, Eq. Pl. ch. 3, p. 153, 154; Gilb. Forum Roman. 195; 1 Mad. Pr. Ch. 140, 141; 2 Eq. Abridg. 172, pl. 3, 5; Mitford, Eq. Pl. by Jeremy, 147; Tenham v. Herbert, 2 Atk. 483, 484; Eldridge v. Hill, 2 Johns. Ch. 281, 282; Trustees of Huntington v. Nicoll, 3 Johns. 566, 589, 590, 591, 595, 602, 603. The nature of this jurisdiction is thus stated by Lord Redesdale: " Courts of equity will also prevent multiplicity of suits; and the cases in which it is attempted, and the means used for that purpose, are various. With this view, where one general legal right is claimed against several distinct persons, a bill may be brought to establish the right. Thus, where a right of fishery was claimed by a corporation throughout the course of a considerable river, and was opposed by the lords of manors and owners of lands adjoining, a bill was entertained to establish the right against the several opponents, and a demurrer was overruled. As the object of such bills is to prevent multiplicity of suits, by determining the rights of the parties upon issues directed by the court, if necessary for its information, instead of suffering the parties to be harassed by a number of separate suits, in which each suit would only determine the particular right in question between the plaintiff and the defendant in it, such a bill can scarcely be sustained, where a right is disputed between two persons only, until the right has been tried and decided upon at law. Indeed, in most cases it is held, that the plaintiff ought to establish his right by a determination of a court of law in his favor, before he files his bill in equity. And, if he has not so done, and the right he claims has not the sanction of long possession, and he has any means of trying the matter at law, a demurrer will hold. If he has not been actually interrupted or dispossessed, so that he has had no opportunity of trying his right, he may bring a bill to establish it, though he has not previously recovered in affirmance of it at law, and in such a case a demurrer has been overruled." Mitf. Eq. Pl. by Jeremy, 145, 146.

2 Ibid.; How v. Tenants of Bromsgrove, 1 Vern. 22; Elme Hospital v. Andover, 1 Vern. 266; Pawlet v. Ingres, 1 Vern. 308; Brown v. Vermuden, 1 Ch.