
    *Lane’s Adm’r et al. v. Eggleston’s Ex’or.
    January Term, 1856,
    Richmond.
    Absent. Tyhb, J., and Giumer, J.
    1. Equity Jurisdiction — To Compel Security for Prompt Payment of Undue Debt. — A court of equity will not interfere, in behalf of a creditor, whose debt is payable at a future day, to compel the debtor to give security for the prompt payment of the debt when it shall become payable.
    2. Chancery Practice — When Decree for Administration Account Erroneous — Case at Bar. — And it is error, upon such an application to a court of equity, although the bill prays for general relief, to direct the administrator of the debtor to render an account of his administration, where there is no allegation that the administrator had not given sufficient security for the faithful administration of the estate.
    3. Bills Quia Timet  — Necessary Allegations- A bill quia timet must allege, that the complainant may be subjected to loss by the negligence, inadvertence or culpability of the defendant.
    In 1807, John H. Saunders and others, devisees and legatees of Branch Tanner, deceased, filed their bill, in the Superior Court of Chancery for the Richmond District, against Peter E. Archer, administrator with the will annexed of Branch Tanner, deceased, and the sureties in his administration bond, to recover whatever might be found to be due to the plaintiffs upon a settlement of the administration accounts. Joseph Eggleston, one of the sureties in the administration bond, was a defendant in that suit. On the 30th of May, 1812, Edward Eggleston, executor of Joseph Eggleston, then deceased, paid over to John Dane, attorney for the plaintiffs in ■the suit, ^381 6s. 8d., and took his receipt for the same. That receipt will explain the reason why and the circumstances under which the money was paid. It was in these words: “May 30, 1812. Received of Edward Eggleston, executor of Joseph Eggles-ton, *deceased, the sum of three hundred and eighty-one pounds, six shillings and eight pence, on account of a suit now depending in the Superior Court of Chancery, in which Branch Tanner, the' 'younger’s, residuary legatees are plaintiffs, against Peter E. Archer, administrator with the will annexed of said Tanner, and the securities of the said Archer. It is expressly understood, as the condition on which this payment is made, that it is not directly, and understood to be considered to be an admission, on the part of the said Eggleston, that a single cent is due the plaintiffs, but it is only made to meet any sum that he ma3 be bound to pay in law, as far as this payment will extend; and if he should only be bound as aforesaid to pay a less sum than this payment, then the surplus, if any, I agree shall be refunded to him; and Mr. Eggleston will have a right to look to me personally to refund such surplus, if he should choose it. — John Eane, attorney for plaintiffs. ’ ’
    Very soon after the date of that receipt, John Eane paid over to his clients their respective shares of the money, with the understanding that, if necessary, it should be refunded. To enable Eane to comply with the térms of his receipt of the 30th May, 1812, above referred to, he required of his clients such a receipt as would oblige them to refund, if necessary, for that purpose. These several receipts being nearly the same in substance, it is sufficient to refer to one of them alone. Gay’s receipt was in the following words and figures, to wit: “June 9th, 1812. Received of John Eane two hundred and twenty dollars, on account of a suit now depending in the Superior Court of Chancery, in which Branch Tanner’s- • residuary legatees are plaintiffs, against Peter P. Archer and his sureties, defendants. Thi's sum .is to be returned to the said Eane, with interest, if Eggleston’s executor should require the said Lane to refund as much of the sum paid by him to the said Eane, on account of the said suit. ' — Thomas B. Gay.”
    In May, 1848, after the lapse of thirty-six years from *the date of Lane’s receipt, and while the suit of Tanner’s legatees v. Tanner’s ex’or was still'pending, Eggleston’s executor instituted suit, in the Superior Court of Chancery for the Richmond Circuit, against the widow, and the children, who were his dev-isees' and legatees, and the administrator, of John Eane, deceased. The bill, besides the prayer for general relief, contained a specific prayer that the defendants might be “decreed to give security, such as shall be u’ndoubted, and will enable the representatives of Joseph Eggleston, deceased, on the decision of the suit, Tanner’s legatees v. Tanner’s ex’or, &c. “to command prompt payment of the ¿£381 6s. 8d. with interest, or so much of the said sum as shall exceed the amount found due from the estate of Eggleston.”
    There was a demurrer to the bill, and the defendants also answered, insisting upon the laches of the complainant, in not pressing to a conclusion the suit of Tanner’s legatees v. Tanner’s adm’r et als., and that there was no danger of loss to the complainants, if it should ever be determined that any thing was due to him, as the estate was fully solvent, and the devisees and legatees of Eane were alt fully able to meet any demands which could be brought against them.
    The exhibits with the answer showed, that the executor who first qualified on Lane’s estate, had given bond with security in the penalty of $40,000, and that the administrator, who had recently qualified on the estate de bonis non, had given bond with security in the penalty of $7,000.
    On the hearing, the demurrer was overruled, and the administrator of Eane directed to render an account of his administration, and the legatees also to render an account of what they had received under the will of Eane.
    Erom this decree, the defendants appealed.
    Patton, for the appellants:
    The case of Tanner’s legatees v. Tanner’s adm’r et *als. is still pending. It was expected and intended that Eane should distribute the money he received from Eggleston among his clients; he agreeing to become personally responsible, that it should be refunded in the event that it should be found not to have been due. It was a parol promise, creating- a cause of action depending upon a future contingency. Suppose it to have been upon good and valuable consideration, what ground is there for requiring Eane to give security? Eggleston knew that the event was contingent in the future; and, in making his contract with Eane, he required no security. Why should a court of equity give him security? If this bill can be maintained, whenever a debt is payable in futuro, the creditor may come into equity, and require his debtor to give security.
    The bill admits that the event has not occurred, that there is no present liability. There is no allegation of apprehension of waste by the representatives of Lane, or that their securities are insolvent ,or doubtful. It is alleged, that the estate of Eane has been administered by his representatives. They doubtless took refunding bonds, and the security is alreadj^ given, which is prayed by the bill; and, if not, the sureties in their official bonds are responsible. The demurrer to the bill should have been sustained, on the ground that the complainants already had the security prayed for. No accounts should have been ordered. They are troublesome and expensive; and it does not appear that anything' will ever be due from Lane.
    In a very recent case in the Court of Appeals, West’s adm’r et ais. v. Thornton et als., 7 Grat. 177, where accounts proved to have been in fact necessary, the decree was reversed, because the accounts had been prematurely ordered.
    This is a bill quia timet, and there is no suggestion that there is not ample means to meet the debt when, if ever, it is payable, nor that the security is insufficient; but it merely asks for security that it may be promptly paid when due.
    *The complainant had been guilty of gross laches. The Court of Appeals have refused to entertain even a bill quia timet, when the complainant had been guilty of laches. Thompson' v. Smith, 7 Grat. 112.
    Lyons, on the same side:
    I.The bill ought to have been dismissed upon the demurrer:
    1. Because it states no case which entitled the plaintiffs to sue, without which no bill can be sustained. Story’s Eq. Pleadings, gjj 10, 23; 1 Daniel’s Ch’y Prac. p. 300. Here, the plaintiffs had no present right of action, because they were not entitled to recover any thing until the suit against Tanner’s administrator was decided, and they could sue only “quia timet;” and to sustain such a bill, it must shew and charge grounds for the “timor.” 1 Maddox’s Ch’y, pp. 218, 219, etc. ; Eowler et ux. v. Saunders, 4 Call, 361; Johnson v. Mills, 1 Vesey, 283; Randolph’s adm’x v. Kinney, 3 Rand. 394.
    2. Because the claim, as stated against Lane, was not one for equity, but simply a legal demand to be asserted by action upon the case, if any where.
    - 3. Because Lane himself was a mere surety, if bound at all; and nothing more can be required of his executor than could have been required of him; and as he could not have been required to give security that he would fulfill his suretyship, so neither can his representatives be required to do so.
    II.The decree is erroneous; because Lane’s receipt was a collateral undertaking for his clients, merely voluntary as far as it professed to bind him, and obviously without any consideration to constitute it a Valid legal contract.
    Lane received the money for his clients confessedly. It was to be paid to them; and Lane says, “the surplus, if any, I agree shall be refunded;” i. e. it shall be refunded by those who will owe, and may be looked to personally to refund it, which necessarily means that *Lane may be looked to, to refund it, if they do not — as it certainly was not intended that both should refund it. This is clearly and simply a collateral undertaking for another. The cases are collected in Chitty on Contracts, p. 518-21; Cutler v. Hinton, 6 Ran. 509; Chandler’s ex’or v. Neale’s ex’or, 2 Hen. & Munf. 130; Waggoner v. Gray’s adm’r, 2 Hen. & Munf. 603.
    III. The claim was clearly barred by-lapse of time and the laches of the plaintiffs ; and the executor of Lane, having distributed the estate without any notice of the claim, was not liable. Colvert v. Mil-stead’s adm’x, 5 Leigh, 88; Park’s adm’r v. Ruckers, 5 Leigh, 149; Atkinson v. Robinson, 9 Leigh, 393; Thornton’s adm’r v. West’s adm’r, 7 Grat. 177.
    IV. The undertaking of Lane was only a simple contract, which did not bind the heirs. Hayden v. Goode, 4 Hen. & Munf. 460; Mason’s devisees v. Peters’s adm’r, 1 Munf. 437; Huston’s adm’r v. Cantrill, 11 Leigh, 136: And it was improper to make them parties, and to decree against them. As to them, the bill ought to have been di smissed.
    There was no appearance for the appellee.
    
      
      Bills Quia Timet.™See monographic note on “Bills Quia Timet” appended to Devries v. Johnston, 27 Gratt. 805.
    
   ElELD, P.,

delivered the opinion of the court.

When this suit was brought, the claim of the plaintiff depended upon a contingency, which might never arise, and therefore it could not be said that any thing was in fact due to the plaintiff, to be paid at a future day. But let it be conceded, for the sake of argument in this case, that the plaintiff’s claim shall be regarded as a debt due, payable in futuro. Then we have the naked case of a creditor, whose debt is payable at a future day, filing a bill quia timet, asking that his debtor shall be compelled to give security for the prompt payment of the debt when it shall become payable. If a creditor is entitled to have such relief in such a case, it would be an unlimited right, and would apply to every debt due and payable upon bond or otherwise at a future *day. And why would it not be applicable, in like manner, to all choses in action, although contingent and contested?

We do not regard the plaintiff’s as a proper case for relief by bill quia timet; but suppose it were a case in which such a relief might be had, the plaintiff has shown no reason why this extraordinary jurisdiction should be exercised by the court in his favor. In the case of Randolph’s adm’x v. Kinney, 3 Rand. 394, the Court of Appeals decided that a bill quia timet will not lie, unless the complainant may be subjected to loss by neglect, inadvertence, or culpability of another. The bill in this case containing no such charge, we must, from its silence on the subject, infer that there were no just grounds for making any such imputations. If Lane’s estate should ever be held responsible for the money to which the plaintiffs refer, or for any part of it, the administrator of Lane and his sureties, and the distributees of Lane, (all of whom must be regarded as perfectly solvent,) will be liable for the same to the extent of the assets received by them, beyond which the plaintiffs can have no claim on them.

Taking this view of the case, we are of opinion, that the order and decree of the Chancery Court of the 5th February, 1849, and 17th March, 1849, are erroneous, and should be reversed with costs; the demurrer to the bill sustained, and bill dismissed with costs.

Decree reversed.  