APRIL, 1810. Executrix V. Vass's Administrator. daughters and his grandchildren, with as great a variety of limitations and contingencies; the property given to his Chichester's daughters being in general expressly limited to them for life only, with remainders over. But, in one part of the will, this caution seems to have forsaken the testator: for after devising and bequeathing a very considerable portion of property, in lands, slaves and personals, to his wife Sarah, the executrix," for and during the term of her natural life, with a power, either by deed or deeds in her life-time, or by a last will and testament, to give, devise and bequeath the said lands and slaves, and all other mentioned property, or any part thereof, to any one child or children, or any one grandchild or grandchildren, of her's and his in fee-simple and absolute property, or for any lesser estate," &c.; he gives and bequeaths (" for want of such disposition of any part of the said land and slaves and other property mentioned) the said personal estate to be divided among his three daughters," (naming them particularly,) "to them and their heirs and assigns respectively for ever." In another part of the will (having bequeathed to his wife a considerable number of slaves so long as she should remain a widow) he directs that, in case of her marriage, those slaves, with their increase, are to be equally divided into six parts; one equal sixth part whereof he gives to his daughter Sarah MCarty, with all their increase, to her and her heirs for ever. There are some other limitations, in feesimple, of slaves to his daughters, upon certain contingencies; and, finally, by a residuary clause, he gives all his estate, real and personal, not before disposed of, to all his children, by name, to them, their heirs and assigns for ever. The Chancellor (overruling the demurrer) decreed that the executrix, out of the estate of her testator, should pay to the complainant 5651, "being the supposed value of the mar riage portion of Sarah McCarty, the wife of Thomson Mason, and the advancements to her, (and which value should have been ascertained by a Jury, if the parties would have con APRIL, 1810. sented to it,) with interest thereon at the rate of six per centum per annum from the last day of October, in the year 1791:" from which decree an appeal was taken by the de- Chichester's fendant Sarah Chichester, and, having abated by the death of Vass, was revived against Robert Dunbar, his adminis trator. Executrix V. Vass's Administrator. Wickham and Randolph, for the appellant. Williams, Warden and Botts, for the appellee. The cause was argued at great length on the merits; and especially on the question whether a Court of Equity had jurisdiction to give the relief sought by the bill. Executors v. Colston, Hen. Pollard V. 1. On the question of jurisdiction; the counsel for the appellant contended that the face of the bill presented a mere legal case. (a) If the agreement was to convey per- (a) Banister's sonal estate, a bill for specific performance would not lie, in Shore, Wash.. general,(b) though, perhaps, in this country, it might lie for 175. Long v slaves. Neither could the jurisdiction be sustained on the & Munf. 111. ground of discovery. It is not enough for a party to allege Patterson, 3 Hen. &Munf. that he wants a discovery: it must be proved to be wanting. 67. And here, in fact, it appears unnecessary; for all the evi- Rutter, dence to shew what Chichester had done for his other children was to be found in his last will and testament and deeds; copies of which could be procured from the several Clerks' offices. (b) Cud v. Wms. 570. P. Hinde's Pr. But, even if a discovery had been requisite, the case, after such discovery had, was clearly proper for a Court of law. The bill, therefore, should have prayed for the discovery only, and not for relief thereupon; a bill for discovery being (c) Mitf 52. always at the costs of the plaintiff, 1 Harr. 145. The Ch. 36. Harr general rule in such cases is, that the plaintiff, having obtain- 141. 2 Bro. ed the discovery sought for, must bring his suit at law:(c) Geach and it is now settled that if the bill seek relief, where the rese, plaintiff is only entitled to discovery, a general demurrer Ch. Pr. 139. Ch. Cases, 61 Barber. 345. Walmsley APRIL, 1810. Executrix Vass's Administrator. will be sustained. (a) Indeed, the case of a lost bond seems an exception to this rule; because, originally, in that case, Chichester's there was no relief at law; a profert according to the old decisions being necessary; (b) and, therefore, the Court of Equity having obtained jurisdiction, still gives relief, though the reason for doing so has ceased, since, according to the (a) 4 Bro. Ch. Cases, modern authorities, a profert is not necessary, at law, where Swaine. Coop. the bond is averred to be lost.(c) But this concurrent Eq. Pl. 188, 480. Collis v. 189. Ibid. 58. jurisdiction as to relief does not extend to the case of a s Vesey, jun lost promissory note. 4. Loker v. Rolle. 2 Bro. It may be said that 2 Fonb. 494.(d) observes, that "there Ch Cases,280. Ibid 319. Price V. James. 129, 130. (c) Ibid. 130. the purpose Fry v. Penn are some cases in which, though the plaintiff might be relieved at law, a Court of Equity having obtained jurisdic(b) Coop. Eq. tion for the purpose of discovery, will entertain the suit for Pleadings, of relief." But the cases he cites do not supBook 6. port his position; for in 1 P. Wms. 496. Bishop of Winc. 3. s. 6. note chester v. Knight, there was certainly no remedy at law; (P). and the same observation applies to 2 Atk. 630. Story v. Lord Windsor. The case of Lee v. Alston, 1 Bro. Ch. Cases, 194. was also a proper case for a Court of Equity; because, in England, the tenant for life is considered as bailiff for the reversioner, and may be compelled to account. Fonblanque, indeed, seems to have been at a loss to strike out the distinguishing principle upon which Courts of Equity in such cases have proceeded: but it is evidently this, that, wherever the case, independently of the discovery, is proper for a Court of Equity, there the discovery and relief will both be granted; but where, in itself, it is proper for a Court of Law, equity will grant the discovery only. If the doctrine were otherwise, even actions of assault and battery and slander might be brought in Chancery. In answer to this, it was said, that the uniform decisions in this country were otherwise. The oldest practitioner of law cannot point out an instance where a discovery has been had in equity, and the party then sent to law for relief. The cases of Carter v. Carter,(a) Foster v. Foster,(b) Pryor APRIL, 1810. Executrix v. Adams,(c) Barrett v. Floyd,(d) and Chinn v. Heale,(e) decided in this Court, and Taylor v. Ewell, decided by Chan- Chichester's cellor Taylor, in February, 1810, together with Burnley's case, shortly after the revolution,(f) were relied upon as in nistrator. point. V. Vass's Admi (a) In 1784, a MS. of the Pendleton. 531. (f) Judge MS. On no principle ought a party to be sent to law for re- (according to lief, after obtaining a discovery in equity. The maxim late Judge of equity is to prevent circuity of action; and, therefore, (6) MS. when the Court can determine the matter, it should not be (Call, 382. a handmaid to the other Courts, nor beget a suit to be ended (e) Ante, p 63, elsewhere.(g) The modern practice in England, in violation Pendleton's of this principle, is founded on an arbitrary dictum of Lord (g) 2 Fonbl. Thurlow's,(h) and ought not to overrule the more equitable (h) 2 Bro Ch. decisions of our own Courts.(i) In many instances the practice of this country differs from that of England; as in the case of a bill to foreclose a mortgage, the decree there is simply that the mortgagor be foreclosed of his equity of redemption, and that the mortgagee have the absolute right of property: but here the practice is to decree a sale. The objection that, if relief attached on discovery, actions of assault and battery and slander might be brought in Chancery, is altogether groundless; for Courts of Equity never assist in cases of torts, even to compel a discovery. As to other cases of a merely legal nature, there is no hardship in giving relief upon the discovery; for the plaintiff lays himself at the mercy of the defendant, relying on his conscience; and the decree is founded on his own admission. But, in this case, the bill on its face presented a proper case for a Court of Equity, for it prayed an account, and the matter in controversy was a proper subject for an account. It was also a proper case for abatement and contribution by the legatees. There was certainly a necessity for going into equity to obtain the discovery; for at law the distributees might, on the ground of interest, have objected to giving evidence. The plaintiff could not prove a negative; that he did not VOL. I. 494. 319. (i) See also, contra, Bran don v. Sands, 2Ves. jun.514. APRIL, 1810. Executrix V. Vass's Admi know what Chichester had advanced to the other children; but, from the nature of such transactions, it was sufficiently Chichester's evident that he had not the knowledge requisite to enable him to proceed at law. Had land only been given, informanistrator. tion might have been obtained, but as to money it was impossible, it never being the usage in transactions of this kind to call on witnesses to take notice what a father gives his son-in-law. But the question, whether a discovery was necessary or not, was closed by the defendant's demurring, instead of pleading to the jurisdiction. On a demurrer, the allegations (a) Cowp. 111. in the bill are considered as true. (a) The defendant, thereMitf. 172. fore, cannot now deny that the necessity actually existed as alleged in the bill. If she meant to say that the plaintiff had no need of such discovery, but that the statements in the bill were only colourable to give jurisdiction, she should (b) Mitf. 175. have put in a plea to that effect;(6) for the ground of a de2 Ves. jun. 122 Mundy murrer must always appear on the face of the bill; and if v. Mundy Bro. Ch. Cas. you intend to take advantage of any thing not on the face of 254. S. C. Coop. Eqpt the bill, it must be by plea.(c) pl. 292. Mitf.222. (c) Mitf. 14. Ves. 245. In reply it was observed, that Mr. Pendleton's MS. opinion in Carter v. Carter proves nothing. The appeal was dismissed, because, perhaps, the appellant's counsel, or the rest of the Court, were of a different opinion. Foster v. Foster was a case where negroes were claimed, of which the plaintiff had never been in possession, but to which he was entitled by executory contract. Neither detinue nor trover would lie: but a bill in equity lay for specific performance. In Pryor v. Adams (it was contended) the Court evidently mistook the law. It is not true that this case depends upon the more modern authorities in England: all the old books of practice lay down the doctrine that where relief was prayed in a bill for discovery, the part praying relief might be demurred to, though the defendant was still compelled to answer as to the discovery. The only difference between the old and modern authorities is, that latterly the doctrine |