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District of Pennsylvania, to wit:

**** BE IT REMEMBERED, That on the twenty fifth (lay

* Seal. * of July, in the thirty-firth year of the Independence of

*#* tne United States of America, \. D. 1810, Horace Binney,

of the said district, hath deposited in this office the title

of a book, the right whereof he claims as author, in the wonts fol-

lowing, to wiu

" Reports of Cases adjudged in the Supreme Court of Pennsyl-
vania. By Horace Binney. Vol. II."

ID conformity to the act of the congress of the United States,
intituled, " An act for the encouragement of learning, by securing the
copies of maps, charts and books, to the authors and proprietors of
such copies, during the times therein mentioned." And also to the
net, entitled " An act supplementary to an act, entitled " An act for
the encouragement of learning, by securing the copies of maps,
charts, and books, to the authors and proprietors of such copies,
during the time therein mentioned," and extending the benefits
thereof to the arts of designing, engraving, and etching historical and
other prints."

Clerk oftfta District of Pennsylvania.

Fry and Kammcrer, Printers,






Cliief Justice.





AUG 12 1898 '


ADAMS, Hayden v. 232
Ake wright, Lessee of Mathers?;. 93

Alberti, Mann v. - - 195

Armroyd o. Union Ins. Co., 394

Aubel v. Ealer, - - 582


Bachman's Case, - 72

Bank of N. A. v. Fitzsimons, 454

Bantleon v. Smith, ... 146

Baring t>. Shippen, - - 154

Barker, Lippincott v. 174

Barnet, Brown . - 33

Beam, Douglass v. 76

Betz, Lessee of James v. - 12

Blazer, Carson v. - 475

Bonsall, Phillips v. - - 138

Brown . Lamberton, 34

Lessee of Simon v. 44

v. Barnet, - 33

Bucher, Lessee of Burkart v. 455
Burd v. The Lessee of Dansdale, 80

Campbells. Spencer, 129

Carmalt, The Commonwealth v. 235
Carpentiera. Delaware Ins. Co., 264
Carson t>. Blazer, - 475

Castor, Snyder v. 216

Cheltenham Turnpike, Common-
wealth v. 257

Cochran, Commonwealth v. 27O
Commonwealth v, Carmalt, - 235
v. Cheltenham

Turnpike, 257
v. Cochran, - 27O
v. Emery, - 257
v. Emery, - 431
Jackson v. - 79
v. Johnson, - 275
v. Rosseter, - 36O
v. St. Patrick Be-
nevolent So-
ciety, - 441
v. Searle, - 332
Sharfft?. - 514
Cookson v. Turner, . - 453
Cosby v. The Lessee of Brown, 124
Cresoe v. Laidley, - - 279
Crow, Lessee of M'Kinzie v. 105



- 137


- 341

Delaware Ins. Co., Carpentier v. 264
Dennis, Sulger v. 428 1

Davis, Havard v.

Milne v.
Dean v. Swoop,
Dean, Kirk v.



Diehl, Smith v.
Dougall, Lessee of Biddle v.
Douglass*;. Beam,
Dungan v. Mott, -
Dunn v. French,


Ealer, Aubell v.
Eaton, Heyclrick v.
Ebcrly, Hamaker v.
Emery, Commonwealth v.
Erutry, Commonwealth v
Ewalt, Lessee of Gratz v.


Fitzsimons, Bank of N. A. v.

v. Salomon,

Fortner, Lessee of Heister v.
Fr.sti r, Kelly v.
Foster, Stewart v
French v. M'llhenny,
French, Dunn v.

Galbraith, Lessee of Murray v.
Gettig, Girard v . -
Gibson, Lessee of Rogers v.
Girard v. Gettig, -
Good, The Lessee of Fehl v.
Gordon v. Kennedy,
Gorgas, Livezey v.
Grecves v. M'Allister,
Guier v. Kelly,

v. M'Faden,


Hamaker v. Eberly,
Hamilton, Lessee of Huston v.
Hantz v. Hull,
Hassanclt-ver i 1 . Tucker,
Hassinger, Schee v.

- 145 Havard v. Davis, - 406

37 Hayden v. Adams, - - 232

76 Henderson, Lessee of Cain v. 1O8

- 201 Heydrick v. Eaton, - - 215

173 Hull, Hantz i>.







Ins. Co. of N A. v. Jones,
Israel, Scott v.

- 511

- 145


Jackson v. The Commonwealth, 79
Johnson, The Commonwealth v. 275
John, Wilson v. - 209

Jones, Insurance Co. N. A. v. 547


Kelly, Guier v.
v. Foster,

Kennedy, Gordon fc.
Kirk v. Uean,
Knox v. Work,

- 294


- 287

- 582

59 L

034 Laidley, Cresoe v. - 279

45 Lamberton, Brown t. 34

234 Lessee of Adams, Mageehan^t?. 109

495 of Biddle v. Dougall, 37

287 1 Brown, Cosby v. - 124

192 of Burkart v. Buchcr, 455

591 of Cain v. Henderson, 108

094 df Dansdak-, Burd v. 8O

587 of Evans v. Nargong, 55

of Fehl v. Good, - 49.>

of Galloway t>. Ogle, 468

507 of Gardiner v. Schuylkill

387 Bridge Company, - 450

511 of Gratz v. Ewalt, 95

525 of Hauer v. Sheetz, - 532

325 of Heister v. Fortner, 4O



Lessee of Henry v. Morgan, 497

of Huston v. Hamilton, 387

of James v. Betz, - 12

of M'Kinzie v. Crow, 105
of M'Knight v. Yingland, 61
of Mathers v. Akewright, 93

of Miles v. Potter, - 65

of Murray v. Galbraith, 59

of Rogers v. Gibson, 46

of Simon v. Brown, - 44

of Small, Wright v. - 93

of Steinmetz v. Young, 52O

of Willis v. Bucher, - 455

Lippincott v. Barker, 174

Livezey v. Gorgas, - - 192


M'Allister, Greeves v. - - 591

M'Faden, Guier v. 587

M'llhenny, French v. - - 13

M'Kee v. Straub, 1

Mackie v. Pleasants, - 363
Mageehan v. The Lessee of

Adams, 109

Mann v. Alberti, - - - 195

Miller v. Ord, - - 382

Milne v. Davis, - - - 137

Morgan, The Lessee of Henry v. 497

Mott, Neilson v. - - 301

Passmore v. 201

Dungan v. - - 201


Nargong, The Lessee of Evans v. 55
Neilson v. Mott, - 301


Ogle, Lessee of Galloway v. 468
Ord, Miller v. 382

Packer . Spangler, 6O

Passmore v. Mott, - 201

Phoenix Ins. Co. v. Pratt, - 3O8

Phillips,*;. Bonsall, - 138

Pleasants, Mackie v. - - 363

Potter, Lessee of Miles v. 65

Pratt, Phoenix Ins. Co. v. - 308


Ridgely v. Spencer, 70
Rosseter, The Commonwealth v. 360

St. Patrick Benevolent Society,

The Commonwealth v. - 441
Salomon, Fitzsimons v . - 436
Schee v. Hassinger, - - 325
Schuylkill Bridge Co., Lessee of

Gardiner v. - 450

Schuylkill Falls' Road, - - 250
Scott v. Israel, - - 145

Searle, The Commonwealth v. 332
Sharffy. The Commonwealth, 514
Sheetz, The Lessee of Hauer v. 532
Shippen, Barings. - 154

Shoemaker v. Smith, - 239

Smith v. Diehl, - - 145

Bantleon v. - 146

Shoemaker v. - - 239
Snyderv. Castor, - - 216

Spangler, Packer v. - 60

Spencer, Campbell v. - 129

Ridgely v. - 7O

Stewart v. Foster, - - 110

Straub, M'Kee v. 1

Sulger v. Dennis, - - 428

Swoop, Dean t, - 72



Taylor, Young v. -
Tiffin v. Tiffin, -
Tucker, Hassanclever v. -
Turner, Cookson v.


Union Ins. Co., Armroyd v.
Wilcocks v.


\Yiddifield v. Widdifield, -

Wilcocks v. Union Ins. Co., 574

- 218 Wilson v. John, - - 209
202 Work, Knoxv. - - 582

- 525 Wright v. The Lessee of Small, 93

394 Yingland, The Lessee of
574 M'Knightv. - 61
Young v. Taylor, - - -218
Young, The Lessee of Stein-
245 metz v 520


Page 90, line 19, for " laws" read " law."

234, 24, for " prepare" read " propose,"
449, 31, for " constrained" read " strained.''
38, for " or" read " on."



Middle District, July Term, 1809.



M'KsE and others against STRAUB and others. Saturday,

July 8.

TPHIS was an appeal from the decision of BRACKEN- The statute of

XT . . rrv . xi 7 8 & 9 William

RIDGE J. atacircuit court tor Dauphin in October 1806. 3. c . 31. concern-

ing 1 partitions,

P_ ,.._,, . , , r i IT -does not extend

The plaintiffs, who were entitled to an estate tor the lite or t this state.

one Oliver Ramsey in certain lands of which he was tenant One of three
., ,, . ~ . . r, 7 defendants in a

by the curtesy, brought a writ ot partition against o traub wr i t & f p ar ti-

who was tenant of the freehold in common with them, and tl ? n w * s tenant
....... i r i i t_ t * tne freehold.

joined with him as dctendants two others who were merely anc i died after

tenants for years or at will under Straub. Issue was joined actlon

, , _.. . . 711 i , r i r, i and before trial;

on the plea ot " non tenent tnsimul, and betore trial, 6traub, t ] )e other two

the only defendant having a freehold interest, died. The were his tenants

for vcitrs or ^
cause was nevertheless tried in the Circuit Court, and a ver- w m.

diet found for the plaintifts. Motions were then made for a tlle writ was

. , , . r . , , , abated by his

new trial and in arrest ot judgment, as well upon the ground death; and if

that the writ had abated, as upon other grounds arising from not > tne sur -
, ., 1^1 iji_i_-TT vivors were er.-

the evidence; but the motions were overruled by his Honour, titled to a ver-

and the defendants appealed. The following reason for the dict u P on the

i i .,.,., r . , plea of non tenent

appeal was alone noticed in the judgment of the court, al- / M ; m a/.
though others were assigned, and pressed in the argument. X. ide ac ^ of April

" That the statute of 31 Henry VIII. gives the writ of far- avis i' S5
f * titwnefactendatQ and against tenants of the freehold only.






" That it was proved on the part of the plaintiffs, that they and
44 Andrerv Straub one of the defendants were tenants in com-
44 mon of the freehold, and that the other defendants were
44 tenants for years or at will under Straub, and not tenants of
41 the freehold; the writ of partitions facienda cannot there-
41 fore be prosecuted against them, nor can they be joined
44 with the tenants of the freehold in the same action. That
44 Andrew Straub one of the defendants, and the only party
44 in interest, died before the trial; the writ therefore abated,
44 and there cannot be a verdict or judgment against him."

It was argued at July term 1808.

Fisher for the defendants contended^frs^, that as the only
defendant who had a freehold in the premises, died before
trial, the suit was abated. The writ of partition being a
real action, lies only against a tenant of the freehold; 16
V'rner 236. pi. 16.; and therefore the interest of the sur-
viving defendants, even if it were competent to join them,
contributes nothing to the support of the action. But there
was no authority to join them. Between the parties to this
SUK, there was no compulsory partition at common law; and
the only statute which applies to this case, and has at the
same time been extended to this country, is the 31 H. 8. c. 1.
which relates merely to tenants of the freehold. At the same
time it directs that the writ which it authorizes, shall be
pursued at common law; and therefore if it made a tenant
for years a good defendant to the writ, it would not help this
case, because at common law the death of one of the tenants
abates the writ. 16 Viner 232. pi. 3. But secondly, if the writ
is not abated, the defendants were entitled to a verdict. The
word 4 ' tenet" in a writ aways implies a freehold. Co. Lift.
167. a. The issue was that the parties did not hold, that is,
the freehold, together; and as to the defendants who survi-
ved, so was the fact. The legislature of this state have adopt-
ed the provisions of the 8 & 9 I V. 3. c. 31. since the com-
mencement of this action; but there is nothing retrospective
in the act.

Duncan for the plaintiffs argued that the statute 8 & 9
W. 3. c. 31. was in. force in Pennsylvania, having beer


passed prior to the revolution, and followed upon many oc- 18O9.
casions. The third section of that statute provides that no plea
in abatement shall be received in any suit for partition, nor
shall the same be abated by the death of any tenant. This
action is therefore not affected by the death of Straitb, if it
could have been maintained during his life; and it could
have been maintained, because he was a good tenant of the
freehold, and the joinder of the others was only matter of
abatement. The act of April 7th 1807, 8 St. Laws 155,
does not shew that the statute of William has not been ex-
tended here, for this can never be shewn by a mere legisla-
tive act; nor does the act include the provisions of that statute
at full length; the selection of certain of its provisions does
by no means shew that the whole had not previously been
in force.

Cur. adv. vult.

On this day the judgment of the court was pronounced.

TILGHM AN C. J. The word " tenet" in a writ always implies
a tenant of the freehold. Co. Lift. 167. a. The defendants
were therefore entitled to a verdict, because it was proved
that they were not tenants of the freehold.

It has been urged that the plaintiffs are entitled to a
judgment, because by the stat. 8 & 9 W. 3. c. 31. the suit
shall not abate by the death of any tenant. But the statute is
out of the question, as it was made since the settlement of
Pennsylvania, and does not extend here. I am therefore of
opinion that judgment cannot be entered for the plaintiffs,
inasmuch as it appears on the record that one of the defen-
dants died since the commencement of the action.

YEATES J. It is a good ground for a new trial, that neither
of the defendants who were living at the time of the trial,
were tenants of the freehold. Unless this fact was proved,
the plaintiffs did not shew themselves entitled to recover.

At common law a real action between co-parceners was
abated by the death of any one of the parties, though it was
admitted they were not co-parceners, but jointenants. Cro.
Car. 574. 583. And if in partition, after the first judgment
and before the second, one of the defendants dies, the writ





is abated, and the court will not suffer the return of the par-
'tition to be filed. Any judgment given against a dead per-
son is erroneous. Noy, 145, 6.

The counsel for the plaintiffs put the reason in arrest of
judgment on its true ground, viz. the extension of the British
statute 8 & 9 W. 3. c. 31. 3 Ruff'. Stat. 683. Now the mem-
bers of this court in their report to the legislature at the last
session, in pursuance of the duties enjoined on them, have
not specified this act of parliament as having been extended
by practice; and it is observable that our own act of assem-
bly of 7th April 1807, 8 St. Laws 155, adopts many of its
provisions; and particularly the 4th section of our act uses
the very expressions of the British act, except that instead
of the words " the death of any tenant," it substitutes " the
" death of any defendant." But our act has no retrospective
words, and, the trial being in October 1806, can have no
operation. The British statute then not extending to us, it
is conceded that the proceedings cannot be supported, and
the judgment must be reversed.

Judgment reversed.

July 8.

When the terms
of a special
agreement to do
ft certain thing
for a certain
sum, have been
performed by
the plaintiff',
the law raises
a duty in the
defendant, for
which indtbita-
tut ussiimfisit
will lie.

The plaintiff
declared in in-
debitatiu at-
sum-fuit fir work
would live with
that the general

KELLY and another, administrators of FOSTER,
against FOSTER.


VV RIT of error to the Common Pleas of Dauphin.

The declaration by Foster, the plaintiff below, against the
administrators of Foster, contained two counts: thejirst an
indebitatus as.wmpsit, and the second a quantum meruit, for
work labour and services performed for the intestate in his
lifetime. Upon the trial, the plaintiff gave in evidence a
promise by the intestate to give him 200/. if he would live
with him until the intestate's death, and that he accordingly
had lived with, and worked for him, up to that time.

The defendant's counsel insisted that the special promise

and labour, and proved a promise by the intestate to pay him 200/. if he
him until the intestate's death, which he accordingly had done. Held
count was supported by the proof.

2b 4


5*' JUT
16 W
58 302
66 W>


did not support the declaration, and that the action should
have been a special assumpsit; but the court charged the '
jury that if they believed the testimony, it entided the plain-
tiffs to their verdict for 200/.; and the defendants took a bill of

The point was argued at July term 1808, by Fisher and
Duncan for the plaintiffs in error, and by Laird, contra.

For the plaintiffs in error it was said, that in order to pre-
vent surprize, and to keep the forms of actions distinct, it
had become a settled principle that indebitatus assumpsit
will not lie where there is a special contract between the par-
ties. In such a case the defendant ought to have notice by
the declaration that he is sued upon the contract, as was re-
solved by the court in Weston v. Downes (a). If indeed an
end has been put to the contract, as if by the terms of it it
is left in the power of the plaintiff to rescind it and he does
rescind it, or if it is rescinded with the assent of the defen-
dant, then indebitatus assumpsit will lie upon the duty
which the law may imply from the original transaction be-
tween the parties; but if it continues open, the plaintiff must
state the special contract and the breach of it. This is ex-
pressly the decision in Towers v. Barrett (), and upon the
same ground the court must have gone in Power v. Wells (c).
In the present case the contract remained open, the plaintiff
claimed the precise sum stipulated by it, and the court below
stated this sum as the measure of damages; of course the
claim was founded exclusively upon the contract, and any
implied assumpsit to pay for the services performed was out
of the question. In the case of Dutton v. Solomonson (</),
this doctrine is carried so far by the Common Pleas, that
where goods had been sold to the defendant to be paid for
by a bill at two months, which after delivery of the goods he
refused to give, the whole court held that indebitatus assump-
sit would not lie before the expiration of the two months, and
Lord Ahanley said he had great doubts whether it would
lie afterwards, and recommended a count upon the special





(a) Doug. 23.

(6) 1 D. C- E. 133.

(c) Cowp. 818.

(</) 3 Bos. & Put. 582


1809. ^* or t ' ie defendant in error it was answered, that there

- v ~ was sufficient evidence upon the trial to entitle him to a re-
covery, independent of the special contract, as he proved


I'OSTKR. labour and work done; and there is no doubt that a plaintiff
may recover upon a count for a general indebitatus assump-
sit, if he proves enough to support it, although he has also a
count upon a special agreement which he attempts to prove
and fails. But the ground of the plaintiffs right to recover
in the present action is this, that where the terms of a special
agreement are performed by the plaintiff, it raises a duty for
which indebitatus assumpszt will lie. Gordon v. Martin (a),
Bull. N. P. 139. 1 Selwyn N. P. 63. While the special con-
tract remains executory, the party must declare specially;
but when it is executed he may declare generally; Brook v.
White (6); and it is to be observed that the doubt attributed
to Lord Alvanley in Dutton v. Solomonson, is not entertained
by any of the court in Brook v. White^ the point being unani-
mously ruled the other way, Chambre J. saying that if any
thing dropt from Lord Alvanley upon that subject, it was
extra judicial. In Clark v. Gray (c), Lord Ellenborough says
there are a great variety of agreements not under seal, con-
taining detailed provisions regulating prices of labour, rates
of hire, times and manner of performance, &c. which are
every day declared upon in the general form of a count for
work and labour. The inconvenience of surprize, which is
the only one chargeable against this form of action, may at
all times be obviated without difficulty, by demanding a bill
of particulars, or a statement of the party's claim.

Cur. adv. vult.

Upon this day the judges delivered their opinions.

TILGHMAN C. J. This cause comes before us on a writ
of error to the Court of Common Pleas of Dauphin county.
The plaintiff below declared upon an indebitatus assumpsit
and quantum meruit for work and services performed by him
for James Foster deceased. On the trial he proved, that he
had lived with James Foster several years and performed
services for him; he also proved a promise by James Foster,
that if the plaintiff would live with him till the time of his
death, he would give him 200/., and that he did live with

(rt) Fitzgib. 303. (i) 4 Bos. G- Pul. 330. (r) 6 East, 569.


him. The court told the jury, that if they believed this evi-
dence, the plaintiff was entitled to a vtrdict for 20O/., which "
the jury found accordingly, and the defendants took a bill of
exceptions to the court's opinion.

The strength of the objection lies in this, that the plaintiff
ought not to have been permitted to avail himself of this spe-
cial agreement without having stated it in his Narr. We have
held this case under advisement since the last term, in order
to have an opportunity of examining the authorities cited on
the argument, many of which were not to be procured in this
place. Upon a careful examination of the law it appears to
me to be settled, that when the terms of a special agreement
have been performed by the plaintiff, the law raises a duty,
for which a general indebitatus assumpsit will lie. It is so
laid down in Bullets Nisi Prius 139, and the ease of Gor-
don v. Martin, Fitzgibb. 3O2, is cited in support of the prin-
ciple. Buller is fully supported by the case referred to, which
was a decision on the very point. The opinion of Justice
Dennison is precisely the same in Alcorn v. Westbrook,
1 Wils. 117; and to the same purpose is the late case of
Brooke v. White, 4 Bos. & Pul. 33O. I am always glad to
find authority for supporting the verdict of a jury where the
merits appear to have been fairly before them, and for sup-
porting that kind of pleading which is attended with the
least difficulty. The only objection to this general manner of
declaring is that the defendant may be taken by surprize;
but with proper caution he never can; for he may demand
of the plaintiff to specify the nature of the evidence he means
to offer, and until this is done, the court will not suffer the
plaintiff to bring on the trial. Something very like the pre-
sent question was determined by this court in the case of
Snyder and rvife v. Samuel Castor, administrator of George
Castor, at Philadelphia March term 1 807. The plaintiff de-
clared on a general indebitatus assumpsit for work labour
and services &c., and gave in evidence a promise of the in-
testate to pay after his death. It was objected that this was
a special promise, different from that laid in the declaration;
but the court decided that the action might be supported, as
it was not brought till after the time when the money was
due. I am therefore of opinion that the judgment of the
Court of Common Pleas be affirmed.





1809. YEATES J. The distinction is fully established in the cases

cited by the Chief Justice, Bull. 139. Fitzgib. 302. 1 Wih.
117. 4 Bos. fc? PuL 330, that an indebitatits assumpsit or
FOSTER. quantum meruit will lie upon a special contract executed by
the plaintiff; but on such contract to be performed in future,
the plaintiff must declare on the special agreement. All the
cases upon the subject were fully considered in Snyder et ux.
v. Castors administrators, and I mentioned that decision
during the argument at the last term. The present suit ap-
pears to me to be the same in principle, and I cannot dis-
tinguish between them. It is the defendant's fault if he is
surprized on the trial ; because he may require of the plain-
tiff the particulars of his demand previous to the trial, and
may come prepared to meet it. I concur in opinion that the
judgment below may be affirmed.

BRACKENRIDGE J. It has occurred to me sometimes to
consider whether the practice of our courts in this state, in
bringing a matter to issue, will warrant the like strictness
with the courts of England, in what shall be given in evi-

Online LibraryHorace BinneyReports of cases adjudged in the Supreme Court of Pennsylvania [1799-1814] (Volume 2) → online text (page 1 of 61)