APRIL, 18:0. Chichester's V. Vass's Administrator. has been established that, in such case, the whole bill may be demurred to, and no answer is necessary. Here the answer was to the discovery; the demurrer to the relief; Executrix exactly according to the old rules of practice. In the case of Pryor v. Adams, there was no argument on this point; and, that decision being against the authorities, had this Court a right to change a law? Other instances were mentioned in which this Court had been mistaken, and had had the magnanimity to acknowledge its errors; for example, as to its jurisdiction relative to appeals from interlocutory decrees,(a) and to criminal cases.(b) In Chinn v. Heale, the bill was for specific performance, and the ground for relief in equity clear. Authorities in this country, therefore, do not appear to differ with those in England on the point in question. The ground taken, that the matter in this bill is of equitable cognisance, is entirely untenable. The plaintiff could not call for specific performance; for he could not point out any particular land, or slaves, and demand a conveyance. His only remedy was for damages for breach of contract; and he ranked only as a simple contract creditor. There was no ground for contribution against the legatees; for all the advancements were made in Chichester's life-time, and there was no pretence of a deficiency of assets in the hands of the executrix; without which the legatees could not be sued. And, as to the ground of relief for the sake of an account; a bill in equity for an account lies only where the old action of account lay; in cases of mutual trust and confidence, as between guardian and ward, principal and factor, &c.; not in common cases, where there is no such trust and confidence; for, if it could, a merchant would have nothing to do but to bring suits in Chancery on all his store accounts. Upon the MERITS, it was contended by the counsel for the appellant, 1. That the promise made by Chichester was too indefinite and uncertain to be obligatory in law or equity. It was a mere declaration of an intention to de (a) McCall v. Peachy, 1 Call, 55 v. The Com(b) Bedinger Call, 461. monwealth, 3 APRIL, 1810. equal justice to all his daughters, according to his own con venience; of both which he was himself the best judge. Chichester's The letter of Vass merely asked his consent to the marriage, V. Executrix without any proposition for a portion, and therefore takes Vass's Admi- the case out of the class of marriage agreements.(a) nistrator 2. If the promise was binding at all, Chichester had his (a) Fin. 292 whole life to perform it in. (6) in.(6) citing Poph. 148. Sylves- 3. It might have been satisfied by a conveyance of lands ter's case. 1 Bac. Abr 264 to Mrs. Vass, the contract having been for her benefit only; (Gwill. edit.) same case ci- in which case, upon her death, the lands would have re ted more cor rectly. Banis- verted to her father, as heir at law; and her husband would ter v. Shore, 1 Wash. 173. not have been entitled, even as tenant by the curtesy; since (b) 1 Call, 83. Chichester v. Vass. there was no issue born alive. Of course, Mrs. Vass being now dead without issue, her father ought not to be compelled to make a conveyance to her husband, for whose benefit the contract never was intended. 4. Vass had no right to bring the suit as representative of his wife; having never administered on her estate. In answer to the first and second points, the opinion of three Judges of this Court, in the case of Chichester v. (e) 1 Call, 83. Vass, (c) were relied upon as in favour of the validity of the promise; Judge LYONS alone seeming to incline against it, but expressly reserving the point, for future argument, (d) Ibid. 103. if the case should ever occur again.(d) The other Judges acted on a review of all the British cases, among which (e) 2 Vern. Wankford v. Fottherly(e) is nearly in point; to which may be added Allen, 36. Roll. Abr. 347. and Sid. 25. 322. The suit at common law went off altogether upon the defect in the declaration; and no such point was decided by the Court, as that Chichester had his whole life to perform his promise. If the Court had seen there was no promise at all, or that no action could have been brought against Chichester, in his life-time, they would not have sent Vass back with encouragement to bring a new action. The case in 1 Viner, 292. is in favour of the appellee. The promise ought to be understood as to be performed APRIL 1810. Executrix V. in a reasonable time after the marriage; for the purpose of maintaining Vass, and his wife and children, if he should have any. This could not be satisfied by postponing per- Chichester's formance until after Chichester's death. So, with respect to a promise to pay money when convenient, it is settled Vass's Admithat it must be in reasonable time.(a) But, in fact, this point is of no great importance; for this suit was brought until after Chichester's death. nistrator. (a)6 Co. Rep. not $1.1 Co. Rep. set 25. Porter's case. Co. Litt. 208. Roll. 16r. 456, 437. and Cro. Eliz.798. Moor, 472. (b) See also 3 (Gwill. edit.) gation, letter 3. The contract could not have been satisfied by a tlement of land on Mrs. Vass. The case in Viner, that of Chichester v. Vass, before cited, prove this.(b) Hardr. 10. Contracts are to be understood according to their intent Bac. Abr. and subject matter. A promise of this kind (in case of 709. tit. Obhambiguity) is to be taken most strongly against the party promising, and most beneficially for the person to whom the promise was made. Here that person was Vass; and it must be understood as intended to enure to his benefit, as well as that of his wife. If Chichester had his election to convey lands, he has not done it; and he lost that election when the convenient time (to be judged of by the Court) expired. 4. The compensation for breach of a contract is a personal, not a real property, and belonged to the husband; either as administrator of the wife, if he had administered, or as sole contracting party. In equity he had a right compounded of these two; and might bring his suit as sole distributee of his wife.(c) If any other person had (c) 1 was. been the administrator, such administrator could only have sued upon contracts made with the wife: but here the contract was with the husband. 168. (d)1 P. Wms. 378. Squib v Wyer. Ib. 381. citing the case of Cart and Rees in 1718. 3 Alk. 527. If the husband does not administer, he still has the right of representation in equity.(d) The cases of Robin son v. Brock,(e) Dade v. Alexander,(f) Drummond v. Harg. Co..Litt. Sneed,(g) and Hord v. Upshaw,(h) were all instances in 351. note (1). which the husband sued without administering; and those 213. (f) Wash 30. above cited affirm the proposition that, if administration (g) 2 Call, were sought on Mrs. Vass's estate, Dr. Vass's representa- (1) Cited in 1 (e) 1 H.&M. 491. Wash. 30. APRIL, 1810. tives would be entitled, and, if any other person should get administration, such person would be merely a trustee for Chichester's his representatives. Executrix Vass's Administrator. Friday, April 20th. The Judges pronounced their opi nions. Judge TUCKER stated the case; in the course of which he observed that the defendant, Sarah Chichester, by answering the allegations of the bill generally, without confining her. self to the matters a discovery of which was sought, might, (a) Mitf. 171. perhaps, according to some authorities,(a) be considered as waiving the benefit of her demurrer. He was inclined, however, when sitting as a Judge of a Court which professes to soften the rigours of the law, not to refuse to a party the same latitude of defence which our statutory law now indulges in Courts of Law. SP. Wms. 80. 2 Atk. 157. He then proceeded as follows: The principal point relied on by the counsel for the appellant is, that a Court of Chancery has no jurisdiction over this case, and, therefore, that the decree is erroneous in overruling the demurrer and granting relief: for although the complainant might have been entitled to the discovery sought, he was not entitled to any relief. And, among the arguments urged on this point, it was more than once insisted on that Mrs. Vass being dead, and the promise being literally to do equal justice to all his daughters, as fast as it should be in his power with convenience, no suit or action either at law or in equity will lie upon this promise. And a further reason for this objection was, that Mr. Chichester might have given his daughter land, if he had chosen so to do; in which case, as she died without ever having a child, Doctor Vass could not even have a life estate therein; and moreover, that Chichester had his whole life to perform his promise in; and having survived his daughter, and being moreover her next heir, it would be doing a vain thing to compel him to make a conveyance which would be of no benefit to the complainant under these circumstances. APRIL, 1810. Executrix V. nistrator. It will not, I presume, be denied, that a promise to do a moral action founded upon a good and sufficient, or valuable consideration, actually given or performed in pursuance Chichester's of such promise, is binding upon the party making the same, Vass's Admiand may be enforced, according to the nature of it, either in a Court of Law or Equity. Of course, if the law cannot equity ought to enforce it. Taking then the position, that an action at law cannot, under the circumstances of the present case, be maintained upon this promise, as contended for, I will consider whether this promise contains such ingredients as that a Court of Equity ought to grant the relief sought. The following principles appear to me to require no comment or illustration. 1st. That a promise made by a father to a person who seeks an alliance with his daughter is a promise made in consideration of marriage, if the marriage be afterwards had with his consent. 2d. That although such promise may literally import a provision to be made for the daughter; yet, being made to the intended husband, it must be construed to be one which shall enure to the benefit of both, unless there be some special reservation to the contrary; manifesting a clear intention to preclude him from participating in the benefit thereof. If these principles be correct, the letter of the 12th of April, 1789, must be considered as a promise made by Mr. Chichester to Doctor Vass in consideration of his intended alliance with his daughter, which, according to the expressions contained in the Doctor's letter to him of the 10th of April, depended upon Chichester's consent, the young couple being determined to do nothing that might create the least uneasiness or anxiety to him; but to bear their disappointment with all possible fortitude. No repugnance to this consent is expressed by Mr. Chichester, nor any terms or settlement at any time hinted at, in any of his letters to the Doctor, |