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 £ 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 Diche, died in June, 1779, without issue, and Elizabeth Haidane, 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 2d of March, 1786, they sold and conveyed the whole of the premises for a valuable consideration, to John Duffield, who thereupon instituted an ejectment against the tenant 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, the made an appointment in the nature of a Will, disposing of £ 2,100 personal estate, of which a sum of £ 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 2d of March, 1786, to the aggregate amount of £ 938 5 3, of which the sum of £ 743 5 3 was received by him, and the sum of £ 195, was received by Andrew Doz, one of his Executors, subsequent to the conveyance to John Duffield. In addition to there 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 £ 100 for such a conveyance; which offer was argumented to the sum of £ 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 £ 598 15, the amount of the rents from February, 1782, 'till the 2d 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, or misrepresentation; nor affected by any question of infancy. For these general positions the following authorities were cited: — 3 Leon. 24. Owen 83. 2 Wils. 115. 208. 213. 217. 645. 744. 3 Atk. 124. 130. 2 Chan. Rep. 26. 32. 259. 2 Ca. in Chan. 71. 134. 1 Cha. Ca. 126. 1 Vern. 296. Prec. Ch. 517. 1 Vez. 171. 2 Atk. 336. 4 Vin. Abr. tit. "Chancery" 388. 389. pl. 5. 18 Vin. Abr. 563. 2 Vern. 696. 3 Bl. Com. 205.

In opposition to the motion, it was urged, that an action of indebitatus assumpsit will lie for the true owners against one, who pretends a title to lands, and receives the rents: An action of account will certainly lie, and this may with equal propriety be brought. It will lie for the profits received prior to the demise laid in the ejectment; and whoever receives rents by wrong, shall be construed a Trustee, or Bailiff, for him who has the right. Besides, the plaintiffs may consider the Testator as a disseisor, or not, at their election; and, waving the tort, may proceed on the implied contract. Mr. Duche had certainly no right in law or equity to receive the money, and, therefore, is not entitled, ex equo et bono, to retain it. But even if an action at law could not be maintained in England, yet the money might, unquestionably, be recovered there in a Court of Equity; while in Pennsylvania, if it could not be recovered in this action, there would be a right without remedy, since no other remedy can be here pursued. For these positions the following authorities were cited: 1 Salk. 28. 1 T. Rep. 378. Cowp. 371. 2 Wils. 644. Prec. in Chan, 517. 1 Bac. Abr. 18. Vin. Abr. tit. "Assumpsit." p. 270.

The Chief Justice, after recapitulating the facts and arguments, proceeded to deliver the following opinion.

M`KEAN, Chief Justice:

This does not appear to me to be a hard or difficult case. If a man receives my rent, it is at my election to charge him with a disseisin, by bringing an assize or other action, or to have an account. Cro. Car 303. pl. 6. Litt. Sec. 588. But if trespass is brought, and the disseisor dies, it cannot be renewed against his executors, at law; though it may, notwithstanding that actio personalis moritur cum persona, be recovered in equity. It does not seem necessary to determine, whether such an action as the present, could be maintained in England; the question here is, whether the plaintiffs are entitled in equity to an account of the rents and profits of Mrs. Haldane's estate; and, if so, from what time?

Nothing can be clearer than, that the plaintiffs had a right to the real estate of Mrs. Hester Duche, at her death in June, 1779, and to all the rents and profits to be derived from it from that time. It is certain, that they had this right in law, equity and conscience, and yet if they are prevented from recovering them, it must be owing to some impediment in law or equity. I know of no such impediment; they have a right to receive this money from the time their title accrued, unless the Testator had no notice of their title; or was in possession under a title, or such a title as he was mistaken in; or there has been a default or laches in the plaintiffs, in not asserting there title sooner.

Mr. Duche had all the deeds, and he of course knew the title of Mrs. Haldane; but he might possibly have apprehended, that the devise of his wife was good in law to himself: I say, he possibly was under this mistake for a time; but from his letter of the 12th February, 1782, it appears, that he then knew his own title to be bad, and that of the plaintiffs to be good. It further appeared to the Jury, that Mr. Duche not only concealed the title of the plaintiffs from them, but misrepresented his own. From this time, he was not a bonæ fidei possessor, and was accountable to the plaintiffs for the rents, whatever might have been the case prior to this time. A man cannot be an honest, faithful possessor of what belongs to others; nothing but ignorance of the facts and circumstances, relating to his own and his adversary's titles, can excuse him in foro conscientix. This cannot be pretended here.

Thus it was summed up to the Jury, on the trial, and they found for the plaintiffs accordingly, that is, the amount of the rents from February, 1782, 'till March 2, 1796, which I think was right, and agreeable to equity and the truth of the case. If I erred in the charge to the Jury, it was in limiting them to February, 1782, and not going back to June, 1779, the time when Mrs. Haldane's title accrued. From this circumstance, the defendants retain the rents and profits of an estate, for upwards of two years and an half, to which their Testator had neither a legal nor equitable title. The cases cited for the plaintiffs, particularly, Bacon's Abr. 18. Prec. in Chanc. 517, and 2 Will. 644. support this opinion.

The rule to shew cause, why a new trial should not be granted, must be discharged.