
    *Foster, Executor of Foster v. Foster.
    [April, 1793.]
    Marriage Contract — Acknowledgment — Presence of Witnesses. — Marriage contract enforced, upon acknowledgment before witnesses, although they were not present when it was made.
    Same — Specific Performance — Remedy at Law. — A bill in equity lies for specific performance of a marriage contract, although the plaintiff might have redress at law.
    John Poster filed his bill in the county court, against Josiah Poster, as executor of George Poster, stating, that, before the intermarriage of the plaintiff with Hannah Page, about the month of March 1776, and, consequently, before the operation of the act of 1785, entitled an act to prevent frauds and perjuries, he was dependant' upon the said George Poster, who was his grandfather, and urged him to address and marry the said Hannah, promising that he would, in consideration thereof, give him his slave Milley and her future increase. That these circumstances were mentioned by the plaintiff to the said Hannah Page and her parents; and that, shortly after-wards, the plaintiff and the said Hannah intermarried, with the consent and approbation of the said George Poster, and .of the parents of the said Hannah. That those declarations of the said George Poster were repeated by him subsequent to the marriage, and particularly when he gave evidence before that court in a cause depending there. The bill prayed a specific performance of the contract.
    The answer denied the allegations of the bill; and there was great contrariety in the evidence. Hone of the witnesses proved that they heard George Poster promise the plaintiff, that he would give him the slaves if he married Hannah Page; but several of them said they had heard him acknowledge, before the marriage, that he had so promised. . Others proved, that the said George Poster swore, when examined as a witness upon the .trial of a suit brought by the plaintiff and the said Hannah against Nathaniel Page, father of the said Hannah, that he and the said Nathaniel Page, had agreed, that if the said Nathaniel would give his slave Jude to the plaintiff and his wife, he, the said George Poster, would give them the said Milley and her increase, at the death of the said George.
    *A copy of the record in the suit, between the plaintiff and his wife, against Nathaniel Page for the slave Jude, was filed as an exhibit in the cause; whereby it appeared that the plaintiffs in that suit had recovered; but the contract sworn to by George Poster, was not precisely laid; although the declaration contained some expressions relative to an agreement in consideration of marriage; and it was to be inferred, from the whole complexion of the proceedings, that the judgment was founded on it.
    The county court dismissed the bill with costs. The high court of chancery reversed the decree; and ordered the executor to deliver the slaves and account for their profits. The defendant appealed to the court of appeals.
    Wickham, for the appellant.
    The plaintiff had a remedy at law, and therefore equity ought not to relieve. Por the bill does not state any want of discovery, or any other circumstance, which the plaintiff could not have availed himself of at common law. The plaintiff, thereiore, has no cause to come into a court of chancery; and it is not important, that there is no plea to the jurisdiction; for there is a difference between a case where ihe plaintiff has equity but neglects to state it in such a manner as to give the court jurisdiction, and the want of equity altogether; the act of October session 1787 supplies the words of jurisdiction in the first case, but it can afford no relief in the other, against the constitutional distinction between law and equity. The high court of chancery, consequently, ought, as the county court had done, to have left the plaintiff to his remedy at law. Banister’s executors v. Shore, 1 Wash. 173, in this court. (LYONS, Judge. The court in that case only said that the claim, if at all founded, was a legal one ; but did not decide the cause upon that principle.) The bill does not charge the contract sworn to b3r George Foster; and therefore the evidence, with respect to it, is irrelevant, and the plaintiff can have no relief upon it in the present suit. Besides, the plaintiff was a mere volunteer, and was not a party to 'The latter contract: therefore, he could claim no benefit from it, as there was no consideration given on his part, and the equity of the defendant was at least equal to his.
    Call, contra.
    The suit was properly brought in equity, as a contract was to be executed; and whether, aptly, charged in the bill, or not, will make no difference; for the act of 1787 cures the defect. Which ever of the contracts is assumed as the foundation of the claim the plaintiff will be entitled to recover. For although no witness was present at that, between the plaintiff and George Foster, yet the acknowledgment of it, by the latter, to other people was sufficient: And, although that, between George Foster and Nathaniel Page, is not expressly charged, yet it is referred to; and that let in the evidence. Therefore as Page has been compelled to perform his part of the agreement, the defendant should perform the counter part. The objection that the plaintiff was a volunteer, and not a party to the contract, and that no consideration moved from him, is not sustainable. For he was more than a volunteer, as he was the grandson of George Foster; and although he was not present at the contract, yet it was made for liis benefit; and he is entitled to sue upon it, notwithstanding- it was unknown to him before the marriage. Dutton v. Poole, Th. Jones, 102. For no consideration moved from the daughter in that case; and yet because the benefit of it belonged to her, and she might have released it, the court sustained the action.
    Campbell, in reply
    'Urged, that the plaintiff’s wife ought to have been made a party to the suit, as both contracts were made as much for her benefit, as for his.
    
      
      See monographic note on "Husband and wife” appended to Cleland v. Watson, 10 Gratt. 159, and monographic note on “Specific Performance” appended to Hanna v. Wilson, 3 Gratt. 243.
    
   The court took time to consider; and, afterwards, affirmed the decree of the high court of chancery.  