1 U.S. 341 (1788)

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U.S. Supreme Court

INGLES v. BRINGHURST, 1 U.S. 341 (1788)

1 U.S. 341 (Dall.)


Court of Common Pleas of Philadelphia County

September Term, 1788

Indebitatus Assumpsit for money laid out and expended &c. The case was this. The Plaintiff, Ingles, had a house in the district of Southwark, against the wall of which one Waters had erected another house. Waters becoming insolvent, his house, on

Page 1 U.S. 341, 342

the 1st of August, 1774, was sold under a Venditioni Exponas to one Ridley; but he, also, falling into distress, the house, by virtue of a similar process against him, was again sold, on the 7th of March, 1776, to the Defendant, Bringhurst, for a full and valuable consideration. In the advertisements published on the occasion of these successive sales, no other incumberance was mentioned, than a ground-rent of L 6; and the Defendant had remained in quiet possession of the premisses until about two or three years ago, when the Plaintiff demanded of him one half of the cost of the party wall between the above mentioned houses; and, the demand being refused, he brought this action to recover the amount. The question, therefore, agitated on the trial, was, whether the claim for a reimbursement of a moiety of the cost of a party wall, under the Act of Assembly, (see 1 State Laws 293.) was a lien upon the land, or only a personal charge against the builder of the second house? The Plaintiff called several witnesses (who had been Regulators of considerable experience) in hopes of establishing a custom favorable to his pretensions. They only proved, however, that the valuation of a party wall was never made untill the second house was built; and that, even afterwards, it was frequently postponed for four or five years. One of the witnesses, indeed, said that he remembered an instance where the purchaser paid the moiety of the cost of the party wall, and not the original builder of the second house; but he could not ascertain whether this was the effect of any agreement of the parties, or not. The argument was conducted by Levy for the Plaintiff, and by Tilghman and Hallowell for the Defendant. For the Plaintiff, it was urged that, in a variety of cases, the law favored and supported a usage in particular matters, even before it had attained all the characteristic qualities of a custom. Thus, the general rule of law entitles a Lessee pur auter vie to emblements, but not a Tenant for years; and yet, on the usage of a particular place, it was determined, that where there was a lease for one year from the 25th of March, the Lessee might (after the expiration of the term on the succeeding 25th of March) enter at the October harvest, upon the arrable lands, and remove the crop, notwithstanding the positive limitation of his contract. Doug. 361. A warrant of attorney to confess a judgment is, by the course of the Court (which is the law of the Court) made irrevocable; and yet it is the nature of all letters of attorney to be revocable. Farresl. 95. In Pennsylvania, likewise, several striking precedents have been established upon this point. On proof that it was a usage among Lanners to work in and out for three vatches, it was lately decided in this Court, that, for that purpose, the lessee of a Tan-yard was entitled to hold over the possession, although his agreement was for a fixed and determinate time. So, in the case of a Feme Couvert, who could not at common law convey her maiden lands but by Fine, yet, as it had been the constant usage of the province to make such conveyances [1 U.S. 341, 343]

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