Mr. Justice Terry concurred.
The plaintiffs filed a bill in chancery in the Court below, in the nature of a “ Bill of Peace,” alleging that they were the owners in fee of a tract of land known as “ Suisun.” That the defendants, with many others, have intruded upon said land, and claim to hold the same by virtue of the pre-emption laws of the United States. That one Smith, who derived title from the plaintiffs, grantor for a portion of the said land, had recovered judgment in the United States District for the same against James Borland, one of the defendants in this action.
The plaintiffs claim a discovery against Borland and three hundred other persons, of the title to the parts or parcels of the tract which they claim, and the length of time they have occupied the same; a judgment declaring the title of the plaintiffs valid against the defendants, and all other settlers or persons upon the land, in like condition; a recovery of the possession against the defendants, as well as all other persons; and an account of the rents and profits, &c.
The defendants demurred; the demurrer was sustained, and the plaintiffs appeal.
A “ Bill of Peace ” is said to be a bill brought by a person to estab*38lish 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 been made to overthrow the same right, and justice requires that the party should be quieted in his right.
In such eases a Court of Chancery, in furtherance of the policy of the law, will interpose to prevent harassing litigation, and perpetually enjoin those claiming adversely from prosecuting their claims against the person showing himself clothed with the legal right. ’-These bills are resorted to where several persons claim a right as against one or more, or one or more against many, and in such cases, the rule which requires all persons interested to be made parties is relaxed; and Courts of Equity allow only a sufficient number of persons to be made parties, to honestly and fairly defend the rights involved. In general, it will be necessary for the plaintiff to establish his right at law, before he brings his bill; but this is not absolutely necessary, for a Court of Chancery may require him to litigate his right in a Court of Law before granting the relief sought. Lord Rudsdale thus defines this jurisdiction': “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 the 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 land adjoining, a bill was entertained to establish the right against the several opponents, and a demurrer was overruled. As the object of such a bill 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 eases, 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 done so, 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.”
• The most familiar cases arising in the books, are those where some right is claimed by or against a numerous body; as where a parson claims tithes against his parishioners, or the parishioners allege a modus against the parson; where the lord of a manor claims a right against his tenants, or the tenants claim against the lord; where the owner of an ancient mill claims service to his mill of all the tenants of the par*39ticular district. In such cases, the only remedy would be by separate actions against each individual, and a judgment against one would not be binding upon any of the rest. Courts of Chancery have undertaken to remedy the evil by a proceeding in this nature.
“In order'to originate this jurisdiction,” says Mr. Adams, in his work on Equity, section 200, “it is essential that there be a single claim of right in all, arising out of some privity or relationship with the plaintiff. A bill of peace, therefore, will not lie against independent trespassers, having" no common claim and no appearance of a common claim, to distinguish them from the rest of the-community; as, for example, against several booksellers who have infringed a copyright, or against several persons who, at different times, have obstructed a ferry. For if a bill of peace could be sustained in such a case, the injunction would be against all the people of the kingdom.
“ There are two cases which constitute apparent exceptions to this rule, which are known respectively as the ‘ Case of the Duties and the 'Case of the Fisheries.’ ”
Speaking of the second case, where the plaintiff claimed a fishery in the river Ouse, and filed a bill of peace against several trespassers, the same author says: “ Lord Hardwicke’s first impression was against the bill; but he ultimately allowed it, partly on the authority of the City of London v. Perkins, and partly because the defendants were in fact distinguished from the community at large, as being owners of adjacent grounds and as claiming fisheries in that character. The first of these grounds, as I have already suggested, is hardly warranted by the report of that case. The second ground appears to be that on which Lord Hardwicke mainly relied, and is consistent with the terms in which the case was spoken of by Lord Eldon.”
An examination of this case (The Mayor of York v. Pellington et al., 1 Atkyns’ Rep., 283,) affords no reason for the alteration of what seems to have been the rule before, or ground which changed the first impressions of the learned Chancellor upon the case.
There is another class of eases where bills of this kind are brought, viz : where a right claimed by an individual is indefinitely litigated by him without success.
“ The necessity for bills of this class,” says the same commentator, “originates in the nature of the action of ejectment, which is based on a fictitious dispute between fictitious parties, so that the rights of the real litigants are only indirectly tried. The consequence of this is, that the result of the action is not conclusive, but that fresh actions may be repeatedly brought, and the successful party harassed by indefinite litigation. In order to remedy this oppression, a jurisdiction has been assumed by the Court of Chancery; and a bill will lie after repeated trials at law and satisfactory verdicts, to have an injunction against further litigation. The right to this jurisdiction was formerly much questioned. Lord Cowper, in a celebrated case, where the title to land had been five times tried in ejectment, and five uniform verdicts given, refused to exercise it; but his decision was overruled by the House of Lords,”
*40I have referred to various authors upon Equity Jurisprudence, for the purpose of ascertaining the cases in which bills of this character are sustained; and it may be fairly deduced from the whole current of authority, first, that they will not lie in cases where the party has a plain, speedy and adequate remedy at law.
It will be observed, that the jurisdiction of Courts of Equity over questions of title to real estate is only acquiesced in and admitted, to avoid the consequences growing out of the fictitious actions of ejectment, where one suit is no bar to another action. This doctrine has been exploded by the Legislature of this State, so far that it requires the action to be prosecuted in the name of the real parties in interest; and the decision of this Court, in the case of Winans et al. v. Christy, in which it was held that the plaintiff may join any number of parties defendant, without regard to the extent or character of their possession, subject only to their right to answer separately, or demand separate verdicts.
In a ease like the present, we entertain no doubt that the District Court might compel those relying upon the same defence to proceed in the same trial, inasmuch as the determinaton of the controversy as against one would be conclusive as against all, and this we think will be found a sufficient remedy.
Again, we are not satisfied that this remedy is proper against joint and several tresspassers, or persons holding by several and distinct titles. The case of the Mayor of York v. Pellington et al., as before remarked, in which the right of a fishery was involved, seems to be an exception to this rule; and the danger and injustice of an application of the rule established in that case to actions like the present, could not be better illustrated than by the facts before us, the defendants claiming by every species of title imaginable.
In addition to what we have already said, we have been unable to find a single case among the authorities which we have had an opportunity to examine, where a bill like the present has been brought by a party out of possession; and it may well be doubted whether such a bill can be maintained by a party out of possession, particularly where no privity exists between him and the defendants. In the case of Leighton v. Sir Edward Leighton, (1 Peere Williams, 672,) which is cited as one of the leading eases on this subject, it does not appear whether the plaintiff had restitution of the premises after his recovery in ejectment or not. The case of the Trustees of the town of Huntington v. William Nicoll, (3 Johns. Reports, 566,) was not, according to the opinion of Chief Justice Kent, a bill of peace, but only an application to have the title tried under the superintendence of a Court óf Chancery, so that there might be a final decision.
In speaking of the necessity of the plaintiff’s first establishing his right by action of ejectment, the same Judge says, that this would be requiring the plaintiff to admit away his legal right or advantage by acknowledging the defendant’s possession, which might defeat his recovery 5 that a jury had determined in favor of his right in an action *41of trespass, and that he had, therefore, the best claim to be deemed in possession, and that the hazard and difficulty of bringing the ejectment should be thrown upon the adverse parties. This case goes further than any other American decision I have been able to find, in sustaining the preseSt plaintiffs’ right to maintain this form of action. But it will be observed that the learned Judge considered the plaintiffs in that suit as being in actual possession.
From a full examination of the whole case, we are satisfied that the plaintiffs’ bill will not lie, and that the demurrer was well taken.
Judgment affirmed with costs.