illustrations of the remedy, than as indicating the limitations of its extent. 569. A few examples, however, of bills of this kind will assist in making clear the general character and scope of this equitable remedy. Ranelaugh v. Hayes' is a case which is frequently cited as an illustration of bills of this class. In this case the plaintiff assigned several shares of the excise in Ireland to the defendant, and the latter covenanted "to save the Lord Ranelaugh harmless touching three parts of a farm,3 assigned to Hayes," and to stand in his place touching the payments to the king and other matters. Afterwards the king sued the plaintiff for money which the defendant ought to have paid, and the former then filed his bill. 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 counterbond, 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. A more modern example of the same kind of relief will be found in the case of Hemming v. Maddick, where the plaintiff, who had been made a contributory in respect of certain shares of a joint stock company which was being wound up under the English Companies Act of 1862, filed a bill in which he alleged that he had taken the shares under an arrangement with the defendant that he should hold them on behalf of the defendant, and deal with them as the defendant should direct, and that the defendant should indemnify him against all loss or liability which he might incur as the holder of the shares. The prayer of the bill was that the defendant might be ordered to reimburse to the plaintiff all sums of money which he had paid for calls and all costs et cetera, and to indemnify him against all liability in consequence of his being made a contri 1 1 Vern. 189. 2 See Story's Eq. Jurisp., 850; Rawle on Covenants for Title, 652. 3 The Irish excise was farmed out by Charles II. 4 L. R. 7 Ch. App. 395. butory. The trust having been satisfactorily established by the evidence, the plaintiff's right to the indemnity was treated as a matter of course, and a decree was made accordingly. 570. Bills quia timet are also frequently entertained in cases where personal property is limited for life, with remainders over, and when there is danger of loss or deterioration or injury to it in the hands of the tenant for life. In such cases a court of equity will interfere at the instance of a remainderman, and if necessary will require security to be given for the production of the property upon the termination of the life interest.1 571. But while a court of equity will interfere for the purpose of protecting the interests of remainder-men, when the property is in danger, it will not interpose merely in order to declare future rights. The Scotch tribunals pass upon such questions by "declarator"; but such a power has not been assumed by courts of equity, either in England or in this country.2 It is true that it is a very common exercise of chancery powers to declare the effect and validity of future and contingent limitations in wills, even as to persons not in esse, upon bills filed by executors and trustees, asking for the direction of the court as to the disposition of the property. But bills of this kind are entertained upon the ground that a trustee is always entitled to come into chancery for advice and assistance in the administration of the trust;3 and do not, therefore, in any way, militate against the doctrine, just stated, as to mere declarations of future rights.* 572. Another illustration of the limitations which courts of equity have deemed proper to place upon relief of a quia timet character, is found in those cases in which a purchaser of land takes it subject to an encumbrance of which he is aware, and 1 See Flight v. Cook, 2 Ves. 619; James v. Scott, 9 Alab. 579; Emmons v. Cairns, 2 Sandf. Ch. 369; McDougal v Armstrong, 6 Humph. 428, 157; Bowling v. Bowling, 6 B. Mon. 31; Cranston v. Plumb, 54 Barb. 59; Van Duyne v. Vreeland, 1 Beas. 142; McNeill v. Bradley, 6 Jones (Eq.), 41. 2 See Grove v. Bastard, 2 Phillips, 621; Langdale v. Briggs, 39 Eng. Law and Eq. 214; 8 De G. M. & G. 391; Cross v. DeValle, 1 Wallace, 14. 3 Ante, p. 151; Hill on Trustees, 543. 4 See the remarks of Mr. Justice Grier, in Cross v. De Valle, 1 Wallace, 15 and 16. takes also a covenant from the vendor against the encumbrance. In such cases it has been held that the purchaser cannot, under such circumstances, file a bill quia timet, and obtain an indemnity from the vendor; the ground of these decisions being, that, as the purchaser has chosen to rest upon the covenant, a court of equity will not make a new contract for the parties.1 573. Bills to Perpetuate Testimony, and Bills to Establish Wills, are also in the nature of bills quia timet. The perpetuation of testimony is necessary when the complainant is not actually threatened with any disturbance of his rights, but fears that he may be disturbed at some future time when the evidence of his title may have been lost. Upon a bill being filed, in such a case, the depositions of witnesses are taken before an examiner, and a decree is then made that the depositions so taken shall remain to perpetuate the memory thereof. Bills of this description have been of very frequent occurrence in Pennsylvania, for the purpose of preserving the evidence of a re-entry upon land conveyed upon ground rent, for non-payment of arrears. In order to maintain a bill for the perpetuation of testimony, it is necessary that the matter should be one which cannot be made the subject of present judicial investigation. If a party is in a situation actively to assert his right, either at law or in equity, he cannot maintain a bill to perpetuate the testimony, for he can obtain the same redress by proceeding at once to a substantial assertion of his title by suit at law or bill in equity. And even if a party is not in a condition to make himself a plaintiff, yet if an action is brought against him, touching the subject matter, he cannot file a bill for the perpetuation of testimony, and a demurrer to such a bill will be sustained on the ground that the complainant's rights can be ascertained and settled in the suit already pending.2 574. Bills to Establish Wills proceed upon a similar principle. According to the modern authorities such a bill may be filed by 1 See Redfield v. Woodfolk, 22 How. 318; Rawle on Covenants for Title, 683, 684 (4th ed.); Story's Eq. Jurisp., ¿ 850, a (11th ed.). 2 See Earl Spencer v. Peek, L. R., 3 Eq. 415, where this point is thoroughly discussed. See, also, upon the general subject of bills to perpetuate testimony, Dursley v. Fitzhardinge, 6 Ves. 251; Dorset (Duke of) v. Girdler, Prec. Ch. 531; Angell v. Angell, 1 Sim. & Stu. 83; Beavan v. Carpenter, 11 Sim. 22; Wright v. Tatham, 2 Sim. 459; Story's Eq. Plead. 300 et seq. a devisee in possession against an heir who has brought no action of ejectment, although no trusts are declared by the will, and although it is not necessary to administer the estate under the direction of the court of chancery.' And the same relief will also be afforded not only against an heir, but also against parties claiming under another will.2 575. Bills to remove a cloud from a title may sometimes also fall under the head of relief quia timet, although, as has been seen, they may occasionally be properly classed under bills for the surrender and cancellation of void instruments.3 The principle upon which these bills are based, is simply that it is inequitable that a party in possession should be embarrassed by having hanging over him a hostile claim, which, although not actively asserted, and not of any validity, is nevertheless calculated to affect the marketability of the title. The jurisdiction of courts of chancery in such cases is well established.* 576. Another of those equitable remedies which have for their object the prevention, rather than the redress of injuries, is found in the relief given by courts of chancery by means of the appointment of receivers. The appointment of receivers has, indeed, in many treatises been classed under the head of the quia timet jurisdiction of chancery, and in a certain sense this classification is correct; but, perhaps, it would be still more accurate to say that the relief afforded by the appointment of receivers is one of several phases which the preventive jurisdiction of the court of chancery assumes, and that it is analogous to, rather than indentical with, the relief which is granted in bills which are technically quia timet. The general subject of receivers is one which has assumed not 1 Boyse v. Rossborough, Kay, 71; affirmed in 3 De G. M. & G. 817; and, on appeal to the House of Lords, nomine Colclough v. Boyse, 6 H. L. Cas. 1. 2 Lovett v. Lovett, 3 K. & J. 1. In re Tayleur, L. R., 6 Ch. App. 416, was a somewhat curious application. The committee of a wealthy lunatic, who had made two wills before he was found a lunatic, asked for leave to pay out of the estate the costs of the plaintiffs and de fendants in a suit to perpetuate testimony 4 Doe v. Doe, 37 N. Hamp. 268; Kimberley v. Fox, 27 Conn. 307; Manson v. Muson, 28 Id. 582; Eldridge v. Smith, 34 Verm. 484; Story's Eq. Jurisp., & 700. a little importance during the past few years; and the necessity for such a preventive remedy has not only led to the frequent interposition of courts of chancery, but has also induced legislation in very many States of the Union, by which the same object is attained through the medium of statutory forms. Even, however, in those States where such statutes exist, the principles of the court of chancery in relation to receivers are looked to for guidance; and hence it will be proper to give an outline (which must necessarily be a brief one) of these principles, and a few illustrations of the manner in which they are applied. A receiver is an indifferent person between the parties appointed by the court to collect and receive the rents, issues, and profits of land, or the produce of personal estate, or other things which it does not seem reasonable to the court that either party should do; or where a party is incompetent to do so, as in the case of an infant.1 The remedy of the appointment of a receiver is one of the very oldest in the court of chancery; it has been assumed for the advancement of justice, and is founded on the inadequacy of the remedy to be obtained in the courts of ordinary jurisdiction.3 577. As a general rule the appointment of a receiver is a matter which rests in the discretion of the court; but this discretion is sometimes the subject of error;5 and is always exercised under certain well-established rules. These rules were stated in Blondheim v. Moore (a leading authority in this country), to be (1) that the power of appointment is a delicate one, and is to be exercised with great circumspection; (2) that it must appear that the claimant has a title to the property, and the court must be satisfied by affidavit that a receiver is necessary to preserve the pro Dan. Ch. Prac. 1552; Kerr on Receivers, 2 (1st Am. ed.). See, also, Booth v. Clark, 17 Howard, 331; Lottimer v. Lord, 4 E. D. Smith, 183; Libby v. Rosekrans, 55 Barb. 202; Baker v. Backus, 32 Ill. 79; Beverley v. Brooke, 4 Grat. 208. 2 Per Vice-Chancellor Sir G. M. Giffard, in Hopkins v. Canal Proprietors, L. R. 6 Eq. 447. See, also, 1 Spence Eq. 673, note f; and Id. 378. 3 Kerr on Receivers, 1. 4 Owen v. Homan, 4 H. L. Cas. 1032; Kerr on Receivers, 3 (1st Am. ed.), and notes. 6 See Milwaukee Railroad Co. v. Soutter, 2 Wallace, 521, where an order of the Circuit Court refusing to discharge a receiver was, under the circumstances, held to be error, and was reversed in the Supreme Court. |