US SUPREME COURT DECISIONS

This was a motion for new trial, founded on a declaration made by the Court, while the merits were before the Jury, that if the counsel for the defendants could shew, that, on the evidence given, the action was not maintainable, a new trial should be granted. The action was Indebibatus assumpsit for money had and received to the plaintiff's use; and the evidence to support it was as follows: James Duche, the Testator, was seized, in right of his wife Hester, of a rent-charge of L 12 8 4 issuing yearly out of a house and lot in the City of Philadelphia; of a house and lot in the city; and of five acres and three quarters of meadow land, in the neighbouring township of Moyamensing. Mrs. Hester Duche, died in June, 1779, without issue, and Elizabeth Haldane, one of the plaintiffs, was her heir at law; but the plaintiffs were not apprized of their title to the premises 'till the year 1785. On the 2nd of March,

Page 2 U.S. 176, 177

1786, they sold and conveyed the whole of the premises for a valuable consideration, to John Duffield, who thereupon instituted an ejectment against the tenants in possession, and recovered. It appeared, however, that before the marriage of Mr. and Mrs. Duche, on the 30th of May, 1747, they had entered into marriage articles, (which were recorded in August, 1779,) whereby a power was reserved to the latter to dispose of the personal estate, during the coverture, but no mention was made of her real estate; and, accordingly, on the 11th of May, 1765, she made an appointment in the nature of a Will, disposing of L 2,100 personal estate, of which a sum of L 50 was given to the plaintiff, Elizabeth Haldane, who received it from Mr. Duche. But she, also, undertook by the same instrument to devise her real estate to her husband, and constituted him one of her Executors. After her death, Mr. Duche, or his representative, continued to demise the real estate, and to receive the accruing rents arising, as well as the rent-charge, 'till the 2nd of March, 1786, to the aggregate amount of L 938 5 3, of which the sum of L 743 5 3 was received by him, and the sum of L 195, was received by Andrew Doz, one of his Executors, subsequent to the conveyance to John Duffield. In addition to these facts, it appeared, that a letter had been written from Mr. Duche, to the plaintiff, Elizabeth Haldane, on the 12th of February, 1782, stating, that as his son had been attainted of treason, the real estate of Hester Duche, might be lost, unless she, as heir at law, would convey it to him, and offering L 100 for such a conveyance; which offer was augmented to the sum of L 300 by similar letters, dated respectively the 10th of May, and the 24th of July, 1784. At that period Elizabeth Haldane, resided in the State of Maryland, and her husband was in straitened circumstances. The plaintiffs having, as above stated, recovered in the ejectment for the premises, brought this action against the Executors of Mr. Duche for the mesne profits; and the Jury, conformably to the charge of the Court, gave a verdict, in favor of the plaintiff, for L 598 15, the amount of the rents from February, 1782, 'till the 2nd March, 1786.

The motion for a new trial (which was argued at the last Term) was supported by E. Tilghman and Lewis; and opposed by Ingersoll and Sergeant.

In support of the motion, it was contended, that upon the evidence the present action cannot be maintained, because the Testator was a disseisor; and no action will, in such case, lie against Executors: That it will not lie, because there was no privity; because the money was received as owner; and because the plaintiffs had conveyed away all their right to the estate. The Testator received the money from his own tenants, for his own use; and the case is not tainted by any fraud, concealment, [2 U.S. 176, 178]

Full Text of Opinion