covery and Relief, in a Case where the Party is only entitled to a Discovery, a Demurrer will lie; for it is incumbent on the Plaintiff to shape his Bill according to what he has a right to pray (p). But where the Plaintiff is entitled to the Discovery he seeks, in suppart of an Action, and he prays for general relief, or for relief that is consequential to the prayer for Discovery, as an Injunction, a Demurrer does not lie (9). And it may be useful to observe that the modern doctrine is, that if a Bill be brought for a Discovery and Relief, and the Discovery is sought for the purpose of the Relief, if a Demurrer, or a Plea (r), will hold to the Relief prayed, the Defendant cannot have the Discovery (s). And it seems, if the Bill prays Relief, as well as a Discovery, and the Discovery is auxiliary to the Relief, a Demurrer to the Discovery alone will not hold (†).

Upon a Bill praying nothing but a Discovery, it has been held the Defendant is entitled to Costs (u), as between Attorney and Client (a); but Mr. Justice Buller thought the Rule thus laid down was too general, and was of opinion that if the Plaintiff is entitled to the Discovery, and goes first to the Defendant to ask for the Accounts he has in justice a right to, if the Defendant refuses, and the Plaintiff is

(p) Muckleston v. Brown, 6 Ves. 62. Gordon and Simpkinson, 11 Ves. 509. Price against James, 2 Bro. C. C. 319. Albrecht v. Sussman, 2 Ves. & Bea. 328.

(q) Brandon v. Sands, 2 Ves. jun. 514.

(r) Sutton v. Earl Scarborough, 9 Ves. 71. sed vid. Street v. Rigby, 6 Ves. 819.

(s) 1 Ves. & Bea. 539. Jones v. Jones, 3 Meriv. 175; and see post.

(t) Forest's Rep. in the Exchequer, 129.

(u) Simmonds v. Lord Kinnaird, 4 Ves. 746.

(x) Cartwright v. Hately, 1 Ves. jun. 293.

thereby compelled to file a Bill for a Discovery, he ought not to have Costs; but if the Plaintiff files his Bill without trying first to get the Discovery in that way in which Men acting with each other ought first to ask their rights, he ought to pay Costs (y). In a Case at Law, the Counsel complained of the hardship of a Plaintiff in Equity being obliged to pay the Costs. of a Discovery; upon which Lord Kenyon observed, that he had once heard Lord Mansfield say, he thought in such a Case the Court of Law ought to allow the Costs paid to the Defendant in Equity, as Costs at Law; that he was struck with the propriety of the observation, and thought it would be a good rule to be adopted (≈).

If the Defendant puts in his Answer in the Vacation, and no exception is taken to it in the first eight days of the succeeding Term (a), he may then, but not before, move for an order for payment of the Costs of the Discovery; so that it is not quite accurate to say (b), that the moment the Answer comes in the Defendant must be paid all the expense he has been On a Bill of Discovery the Plaintiff pays not only the Costs of the Answer, but all Costs occasioned by resisting Motions made in the Cause by the Plaintiff (c).

at.

Where a Bill prays a Discovery, and a commission to examine Witnesses, the practice is settled to be,

(y) Weymouth v. Boyer, 1 Ves. jun. 416'; see also what is said 2 Ch. Cases; and I have heard Lord Eldon approve this doctrine.

(z) Grant v. Jackson & others, Peake's N. P. cases, p. 203.

that the Defendant is not entitled to move for his Costs till the return of the commission; and even then the Defendant will not have his Costs if he examines Witnesses in chief, instead of confining himself to a Cross-examination (d).

If after the Defendant has answered the Suit becomes abated, it cannot be revived (e). Where, therefore, the Plaintiff was a feme sole when she filed her Bill of Discovery, and afterwards married, whereby the Suit abated, the Suit, it was holden, could not be revived for Costs-a hard determination, reluctantly followed by Lord Eldon (f).

The Defendant cannot move to dismiss such a Bill as this for want of prosecution (g), for the Cause ends with the Answer (h): and in a case where such a Bill was improperly brought to an hearing, the question was, whether the Bill should be dismissed, or the Cause struck out of the Paper, and his Honor took the latter course, such a Bill never being dismissed; the words of a dismission being, "The Court seeing no cause to relieve (i).”

II. Bills Quia Timet.

The denomination of Bills Quia Timet was borrowed, probably, from the Title of some ancient Writs at the Common Law; for, as Sir Edward Coke observes, "there be six Writs in Law that may be

See on this subject Hodgson against Dand, 3 Bro. C. C. 475.

maintained quia timet, before any molestation, distress, or impleading, as, 1. A Man may have his Writ or mesne before he be distrained; 2. A Warrantia chartæ, before he be impleaded; 3. A. Monstraverunt, before any distress or vexation; 4. An Audita querela, before any execution sued; 5. A Curia claudenda, before any default of Inclosure; 6. A Ne injuste vexes, before any distress or molestation. And these," says Coke, "be called brevia anticipantia, Writs of Prevention" (k).

When a Person is apprehensive of being subjected to a future inconvenience, probable, or even possible, to happen, or be occasioned, by the neglect, inadvertence, or culpability of another; or where any property is bequeathed to one, after the death of another in existence, and which the former is desirous of having secured safely for his use, against the effects of any accident, which may happen to it previous to the accruing of his Possession, in either of these cases a Bill of the above description may be exhibited, which in the one instance will quiet the Party's apprehensions of a future inconvenience, by removing the causes which may lead to it; and in the other, will secure, for the use of the Party, the property, by compelling the person in the present possession of it to guarantee the same by a proper security, against any subsequent disposition, or wilful destruction (1).

Wherever a demand is made upon Assets in respect of a demand, certain, but payable at a future time, (a Legacy or a Mortgage for instance), the person

(k) Co. Litt. 100; and see 7 Bro. P. C. 125. Toml. Ed.

of the Court of Chancery, p. 43. Hinde's Prac. 128.

entitled thereto may call upon the Executor to secure it for his benefit, and set a sum apart for that purpose;

nor is there," said Lord Hardwicke, "any more useful part of the Jurisdiction of the Court in the Administration of Assets (m).

In a Case decided by Sir Thomas Clarke, a Bill was filed by a Legatee for the security of a Legacy which the Defendant, an Executor, was to pay at the end of Ten Years after the Death of the Testator; and the prayer of the Bill was, that the Defendant might admit Assets, and give security, or pay the Money into the Bank; and though no particular reasons were assigned, such as wasting Assets, or Insolvency in the Defendant (n), a Decree was made that the Defendant should pay the Money into the Bank, and that he should have the Interest in the mean time; and that at the end of the Ten Years the Principal should be paid to the Plaintiff (o).

So, in a Case, where a Legacy was left to one to be paid at twenty-four, the Plaintiff being only twelve years old, the Father filed a Bill to invest the Legacy in the Funds; and so it was decreed; though it was at the same time declared that the Plaintiff was not entitled to the Money till twenty-four (p).

In like manner, where 2000l. was left to the Testator's Daughter at twenty-one, and in default, to her Child, and if no Child, to one Mills; a Bill was filed

(m) Johnson v. Mills, 1 Ves. 283.

(n) Some such reason seems to have been assigned in the earlier cases; see i Cha. Cases

121.

(0) Ferrand against Prentice,

Ambl. p. 273; more fully stated by Lord Thurlow, in Green and Pigot, 1 Bro. C. C. 105.

(p) Walker and Cooke, 15 Feb. 1781, cited by Lord Thur low, 1 Bro. 105.