1810. Meredith's Duval. record, I have a conviction that Daniel Duval was truly in- MARCH, solvent, unable to pay the prison fees, or to maintain himself in prison; or, on a supposition that he might have been so, administratrix (which is the case of many unfortunate debtors,) what was he to do when the Sheriff told him "he was no longer his prisoner," and gave him a discharge in writing, in which he stated his reasons for doing so? Was he to answer the Sheriff, “that he had no right to discharge him, and that if he would not maintain him in prison, he must and would lie there and perish for want of sustenance?" Such a determination would neither have been consistent with human prudence, nor within the utmost effort of human fortitude: and, if persisted in, of what advantage would it have been to the creditor? None at all; but, on the contrary, would have been a sure and certain means of the loss of the debt, at best, very doubtful; but at that time almost desperate : but by obeying the mandate of the Sheriff, it made him, if he acted illegally, liable for the debt; against whom the creditor ought immediately to have proceeded for the recovery of it: but, instead of doing so, she lies by for upwards of six years, and then brings suit against an innocent security, who had done her no injury. Besides all this, the law never supposes a poor prisoner a proper judge of the official duties of an executive officer; or under what particular circumstances he may be legally discharged by the Sheriff, before the debt be paid; but those things remain altogether with the Sheriff; who, at his peril, is to conduct himself according to law. On these grounds, I am of opinion that the judgment of the District Court is correct, and ought to be affirmed. And I am authorized to say that the late venerable and enlightened President of this Court, who heard the cause very fully and ably argued, was of the same opinion. But as a majority of the Court, now present, is of a different opinion, the judgment of the District Court is to be reversed, and judgment entered for the appellant. VOL. I ARGUED AND DETERMINED IN THE SUPREME COURT OF APPEALS OF VIRGINIA: At the term commencing the 15th day of April, 1810. IN THE THIRTY-FOURTH YEAR OF THE COMMONWEALTH. JUDGES, WILLIAM FLEMING, ESQUIRE, President. ST. GEORGE TUCKER, ESQUIRE. ATTORNEY-GENERAL, PHILIP NORBORNE NICHOLAS, ESQUIRE. Tuesday, March 13. 1. In cases Chichester's Executrix against Vass's Administrator. AFTER the decision of the Court of Appeals in the where it is case of Chichester v. Vass, (for which see 1 Call, 105.) a proper and ne cessary to go into equity for a discovery, the Court (having possession of the subject) will proceed to decide the cause, without turning the parties round to a Court of Law, notwithstanding (if such discovery had not been necessary) relief might originally have been had at law. 2. If A. promise B. that, if he and A.'s daughter marry, "he will endeavour to do her equal justice with the rest of his daughters, as fast as it is in his power with convenience;" and the marriage be afterwards had with his consent; the promise is sufficiently certain and obligatory. 3. In such case, A. has not his life-time to perform itin; but, in a reasonable time after the marriage, (taking into consideration his property and other circumstances,) is bound to make an advancement to B. and wife, equal to the largest made to his other daughters. 4. A promise in the above-mentioned terms enures to the joint benefit of the husband and wife; and is not to be satisfied by a conveyance of lands to the wife. The husband (1 whom the promise was made) has his election to consider it a personal contract; and if he survive the wife, may sue in his own right to recover damages for a breach. 5. A husband surviving his wife (or in case of his death afterwards, his executor or administrator) may maintain an action on a personal contract made with the wife before the marriage, or for their joint benefit afterwards; notwithstanding he did not take administration on her estate. APRIL, 1810. new suit was brought by Vass, in the late High Court of Chancery, against Sarah Chichester, widow, devisee and executrix, and others, children and grandchildren of the Chichester's said Richard Chichester, deceased. The case was this. Dr. Vass having paid his addresses to a daughter of Col. Chichester, on the 10th of April, 1789, wrote to him to ask his consent to their marriage. In his letter he says, "Should you disapprove of the matter, we shall endeavour to bear the disappointment with all possible fortitude; being determined to do nothing that may create the least uneasiness or anxiety to you." Col. Chichester, in answer to that letter, on the 12th of April, 1789, says, "he has no reason to doubt his daughter's understanding and prudence; that, if it be her choice in full consideration, his approbation will not be withheld; that his circumstances are such that his daughters cannot expect large fortunes, but he shall endeavour to do them equal justice, as fast as it is in his power, with convenience;" and concludes with repeating "that he should not object to his daughter's determination, but give his approbation." The marriage shortly after took effect. On the 5th of January, 1790, in answer to a letter from Dr. Vass, offering some objections to settling in Alexandria, Col. Chichester writes thus: "Your observations respecting Alexandria carry reason with them. Nothing in my power, without distressing ourselves, shall be wanting to assist you in setiling to YOUR satisfaction." He then adds, "if a plantation in the upper parts of the country would be more agreeable than a settlement in town, perhaps I can with propriety get off the contract made with Stewart for that tract of land in the county of Shenandoah; but, when I contracted with him," (for the sale, it would ap pear,) "I did not expect any of my family would be pleased with that part of the world for a settlement; which was my only reason for attempting to sell it. If Colchester or Dumfries would be more agreeable, I will endeavour to Executrix Vass's Admi- procure a lot for the purpose in FEE-SIMPLE, or will do any thing in my power, in any place you think most agreeable." On the 24th of February following, Col. Chichester wrote a letter to Col. James Gordon, in Lancaster, which begins thus: "Our friend and connection Dr. Vass and myself concur in opinion that in the neighbourhood of your Courthouse is a good and proper stand for a physician;" and then proceeds to inquire whether a small tract of land with a house on it can be bought in that neighbourhood on reasonable terms; speaks of several which he is informed are for sale; says that two or three hundred acres of tolerable land, with a sufficiency of wood, and a small comfortable house, will be quite enough; mentions a particular plantation on which there is no house "and how it would suit the Doctor to BUILD, he cannot determine." He then adds, "that his late advancement for his daughter Lee put it out of his power to make immediate payment for the lands before mentioned to be bought, but that he expected about 50%. could be paid in May following, and the balance at two annual payments after. If it could be of any material advantage in the purchase, perhaps the whole balance may be advanced in May or June, 1791;" which was the succeeding year. In a postscript he says, "I do not wish any contract confirmed until I receive your answer, but condi tionally secure for my approbation." The bill stated, that Mrs. Vass dying in child-bed before any advancement was actually made, her father shewed no farther inclination to give any thing to the complainant, and actually refused to do so, although he had before made some very considerable advances to the husbands of his other daughters; that the complainant thereafter brought an action at law against Chichester. and obtained a verdict for 500. damages; but the judg ment thereupon was reversed in the Court of Appeals; that, pending the appeal, Chichester died, leaving the defendant, his widow, his executrix; as also a very large estate devised and bequeathed to her and the other defend APRIL, 1810. Executrix V. Vass's Administrator. ants; and called for a discovery of what advances their father in his life-time had made to his daughters severally, and of what value they were, and when made to them respectively; Chichester's and that they should state the value of the several devises and bequests to their children respectively; and that, such discovery being made, as well as a discovery of the other estate of the said Chichester, there might be decreed to the complainant as much as came to the share of any of the said daughters, or the children of any of them, &c.; concluding with a prayer for general relief. The executrix demurred to so much of the bill as seeks for redress, by decree of the Court of Chancery, on the promise charged in the bill to have been made by her testa tor to the complainant, and shewed for cause of demurrer, that it appeared, by his own shewing in his bill, that he had not any equity or title whereon such a decree can be grounded; and that the validity of such promise is a matter properly triable at law, and the remedy thereon is at law, and not in equity. She then proceeds to answer the allegations of the bill generally; and, from her answer and those of several of the other defendants, (the daughters and their husbands,) it appeared, that Col. Chichester had made some considerable advances to the husbands of two of them; from one of whom he took a bond in the penalty of 3,000l. with condition that the husband should leave the wife lands of the value of 5001. for her life, in case she should survive him; that, on the marriage of a third with Mr. Hancock Lee, he laid out 500/. in land, and settled the same on Mrs. Lee and the children of the marriage; and that, some time after the marriage of his daughter Sarah McCarty Chichester with Thomson Mason, he gave to the said Thomson Mason, as her portion, 500%. a negro girl, and a horse and saddle. The will of Chichester, (which was among the exhibits,) dated the 10th day of October, 1793, (while the suit at common law brought by Vass against him was pending,) contains a variety of devises and bequests to his sons and |