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cases, the plaintiff secks relief for himself; whereas, in an interpleading bill, strictly so called, the plaintiff only asks that he may be at liberty to pay the money, or deliver the property to the party to whom it of right belongs, and may thereafter be protected against the claims of both. In the latter case, the only decree to which the plaintiff is entitled, is a decree that the bill is properly filed; or, in other words, that he shall be at liberty to pay the money, or bring the property into court, and have his costs; and that the defendants interplead, and settle the conflicting claims between themselves. So, a bill in the nature of an interpleading bill, will lie by a bank, which has offered a reward for the recovery of money stolen, and a proportionate reward for a part recovered, where there are several claimants of the reward, or a proportion thereof, one or more of whom have sued the bank. And in such a bill all the claimants may be made parties, in order to have their respective claims adjusted.

2. BILL OF PEACE.

A bill of peace, enjoining litigation, at law, seems to have been allowed only in one of these two cases; either where the plaintiff has already satisfactorily established his right at law, or where the persons who controvert it are so numerous as to render an issue under the discretion of this court, indispensable to embrace all the parties concerned, and to save multiplicity of suits.

"By a bill of peace," says Mr. Story, (2 Eq. Juris. sec. 853, et seq.) "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. See Eldridge v. Hill, 2 John. Ch. R. 281, 282; Alexander v. Pendleton, 8 Cranch's R. 462, 468; 3 Wooddes. Lect. 56, p. 416, 417. 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 the 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.

CHAPTER XVII.

Chapter XVII. treats of injunctions to yield up, quiet, or continue possession of lands.

The injunction to yield up, quiet, or continue possession of land, is a judicial writ; and subsequent to a decree in the nature of a writ of

execution.

The power of the court to apply the remedy in the case is co-extensive with its jurisdiction over the subject-matter. Thus, when a foreclosure of the equity of redemption and sale of mortgaged premises is decreed, and the mortgagor or defendant, or any person who has come into possession under him, pending the suit, refuses to deliver up the possession, on demand, to the purchaser under the decree, the court, on motion for that purpose, will order the possession to be delivered to the purchaser, and not drive him to an action of ejectment at law; though the delivery of possession is not made a part of the decree. In case of disobedience to such order, an injunction issues of course, on affidavit of service of the order, &c., to enjoin the defendant to deliver possession. And on proof of service of the injunction, and a refusal of the party to comply, a writ of assistance is issued, of course, to the sheriff. Where the delivery of possession is made a part of the decree of foreclosure and sale, a writ of execution of the decree is the proper remedy, in case of disobedience.

The first process after a decree for possession, is service of a writ of execution of the decree for the defendant to deliver possession, accompanied with a demand of possession.

In England, under the old practice of the court, this writ could not be obtained, without previously suing out and serving a writ of injunction to deliver possession, which could only be procured upon the issuing of an attachment, or other process of contempt against the parties for not obeying the writ of execution, which attachment or process, however, was not required to be executed. Stribley v. Haukie, 3 Atk. 275.

But the commissioners for inquiring into the practice of the court were of opinion that the writ of injunction might be omitted. Chan.

Rep. 34, 61, prop. 156. And, accordingly, by the 1 Will. IV. c. 36, sec. 15, rule 19, it is provided, "That where any party obstinately retains possession of lands, or other real property, after a writ of execution of a decree, or an order for delivery of possession has been duly served, and demand of possession made, and upon an affidavit of such service of the writ of execution, and of such demand made thereunder, and a refusal to comply therewith on the part of the person against whom the writ issued, the party issuing it shall be at liberty upon an affidavit of service of the writ of execution and demand of possession and refusal to obtain the usual order of course for the writ of assistance to issue, and that the intermediate writs of attachment and injunction, further commanding the party to deliver possession on any other writ shall be unnecessary."

The orders of August, 1841, have now rendered service of a writ of execution no longer necessary as a foundation for the writ of assistance, so that hereafter, by the combined operation of the statute and the orders, a writ of assistance may be obtained upon service of the decree, without either an injunction or a writ of execution having previously issued. The 13th of these orders is in the following terms, "That upon due service of a decree or order for delivery of possession, and upon proof made of demand or refusal to obey such order, the party prosecuting the same shall be entitled to an order for a writ of assistance."

It may be observed that a party is entitled to a writ of assistance, notwithstanding the decree is drawn up in the form prescribed by the 12th order of August, 1841, giving notice of a different kind of process. Bower v. Cooper, 2 Hare, 412.

Mr. Barbour states the American practice as follows: "A writ of assistance is, in ordinary circumstances, the first and only process for giving possession of land under a decree of this court.

Teller, Hopk. 422.

Valentine v.

"An injunction is not necessary before a writ of assistance. Ib. "Where the decree directs deeds or other instruments to be executed by a party to the suit, the ordinary process of contempt must be employed to enforce their execution. Ormsby v. Nicholson, Vern. & Scriv. 115. But in some instances a master of the court is authorized to execute conveyances, which, previous to the passing of an act authorizing it, were required to be executed by the parties; as in mortgage and partition cases on sales by a master.

"If, after a foreclosure and sale of mortgaged premises, the mortgagor refuses to deliver up the possession, on demand, to the purchaser under the decree, the court, on motion for that purpose, will order the

possession to be delivered to the purchaser, though the delivery of possession is not made part of the decree. And, in case of disobedience, an injunction issues; and if the party refuses to comply with it, a writ of assistance issues to the sheriff of course. Kershaw v. Thompson, 4 John. Ch. Rep. 609; 1 Newl. 677–8.

"But before a party can be proceeded against as for a contempt for not performing a decree, a writ of execution commanding him to obey the decree, must be issued and served upon him. If the party neglects to perform the decree, the court, upon affidavit of service of the writ of execution and of the party's disobedience, will make an order that he be proceeded against by the ordinary process of contempt." Blake's Pr. 168; see Barb. Ch. Pr. vol. 1, p. 441.

CONTENTS.

CHAPTER I.

OF INJUNCTIONS IN GENERAL.

Definition, 9; writ remedial, 10; ordinary objects of writ remedial, 10, 10—1, 11, 11—1; judicial writ, 12, 13; definition of judicial writ, 13, 13—1.

CHAPTER II.

OF INJUNCTIONS TO STAY PROCEEDINGS AT LAW-IN WHAT CASES GRANTED.

Ground of jurisdiction of equity in, 14, 14-1; distinction between injunction and prohibition, 14-2, 15; treatment of subject, 15-1; equitable jurisdiction in cases of accident, 15—1, 16, 16—1, 16—2, 17; equitable interposition in cases of mistake, 18, 18-1, 19, 19—1, 19—2, 19—3, 20, 20—1, 20—2, 20—3, 20—4, 20—5, 20—6, 21, 21—1, 23, 23—1, 23-2, 23-3; interference of equity in cases of fraud, 23-3, 25, 26, 27, 27—1, 28, 29, 30, 32, 32-1, 32—2, 32—3, 32—4, 32—5, 32—6, 33, 33-1, 34, 34—1; jurisdiction of equity in determining illegality of instrument, 35, 35-1; illegal instruments when relieved against, 36, 37, 37—1, 37-2, 37-3, 38, 38-1, 38-2; how far equity will aid a particeps criminis, 38-3, 38-4, 39, 40; doctrine of relief from penalties, 41, 41—1; equitable interposition to restrain proceedings at law for the recovery of penalties, 41—2, 43; relief of equity in cases of forfeiture, 43, 44, 44—1, 44—2, 44—3, 44—4, 44—5, 45—1, 45-2; relief against penalty in cases of breach of covenant, 46-4, 47, 47—1, 47-2, 48; ground of interference of equity to enforce specific performance, 49; different kinds of injunctions in the nature of specific performance, 49, 49-1; grounds of right of tenant to specific performance of agreement, 49-2, 49-3, 50, 50-1; jurisdiction of equity in cases of account, 50—1, 51, 51—1, 52; partnership accounts, 53, 53—1, 53-2, 53-3, 53-4, 53-5, 53-6; equitable interposition in cases of administration of assets, 54, 54-1, 54—2, 54—3, 54—4, 54—5, 54-6, 55; affidavit of executor necessary to the granting of an injunction, 55-2; irregularity in execution of process, how punished, 56; when plaintiff required to elect, 56, 57, 57-1; at what stage of proceedings plaintiff put to his election, 58, 58-1; right of mortgagee to proceed at law and in equity at the same time, 59, 59—1, 60, 60—1, 61; right of creditor to compel the exhausting of a particular fund, 61, 62, 62-1; when sureties discharged from their liabilities, 62—1, 64, 65, 65—1, 65-2, 65-3; as to discharge of parties to bills of exchange, 65-4; liability of acceptor of accommodation bill, 66, 66—1, 66—2, 66–3, 66-4; injunction cannot be granted to restrain proceedings in a criminal matter, 66-5, 66—6, 67; no jurisdiction in equity by injunction to stay the process of court of law upon an award which has been made a rule of court, 67, 68, 68-1, 68-2; cases enumerated in which injunctions to stay proceedings at law are granted, 68-2, 69.

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