The opinion of the Court was delivered by
Stroud, J.In England, and such of our sister states as have followed her example in the establishment of a court of equity distinct from a court of common law, the only question upon this verdict would be, whether the part of the finding of the jury beyond the mere assessment of damages, could be rejected as surplusage. It is manifest, however, that the verdict will not admit of this construction. The finding is not of two distinct parts. They are made to depend on each other. The first part is not found except upon the condition which is expressed in what follows. To preserve the intention of the jury, the whole must be retained. Witman v. Ely, 4 Serg. & Rawle 264.
Regarded then as a conditional verdict, can judgment be rendered upon it In our courts, where, from the want of a court of chancery, we are compelled to administer, as well as we may, a system of *155jurisprudence which combines the rules of law and equity together. It is readily conceded that, with us, actions may be grounded upon rights merely equitable, as in Lang v. Keppele, 1 Binn. 579; and we admit defences of a similar character. Pollard v. Schaeffer, 1 Dall. 211; Jordan v. Cooper, 3 Serg. & Rawle 578. The specific execution of contracts may be enforced, also, through the medium of a conditional verdict in the action of ejectment; and where articles of agreement exist in covenant or debt. Cases abound in support of this doctrine.
But not to pursue the general subject beyond the exigences of the case under consideration, it may be stated, as a general principle, that where the form of action is ex contractu, and the plaintiff founds himself upon a right merely equitable, his declaration should be assimilated to a bill in equity, and should set forth distinctly the special circumstances upon which the equity he claims is supposed to arise. Jordan v. Cooper, 3 Serg. & Rawle 578, 579, 581 ; Witman v. Ely, 4 Serg. & Rawle 266, 267; Reichart v. Beidleman, 17 Serg. & Rawle 43.
The plaintiff here has not adopted this course. His declaration is not special, it does not profess to be founded upon an express contract ; it is simply indebitatus assumpsit on a common money count. The ground upon which he mainly relied on the trial, was, that the money claimed by him had been received by the defendant as his agent, or on his behalf, impliedly, under the decree of the court of quarter sessions. As the motion before us is not for a new trial, but merely in arrest of judgment, it is unnecessary to express any opinion upon the character and strength of this pretension. We are confined to the examination whether the verdict which has been given, viewed in reference to the declaration, will warrant a judgment. And we are decidedly of opinion it will not. The finding of the jury should have been absolute. The issue joined between the parties forbids any other. Were it even conceded that the evidence received on the trial would justify the conditional verdict which has been found, in what manner would the supreme court become possessed of this ; and how, otherwise, could revision take place 1
If the plaintiff supposes the special circumstances which were disclosed on the trial are such as to constitute an equitable right in him, sufficient to sustain an action, let him adapt his declaration to the suggestions which have been made. A demurrer will then present the true question fairly before the court, and save the necessity of a *156jury trial altogether. A course similar to this is stated to be correct where the defence is purely equitable ; Robinson v. Eldridge, 10 Serg. & Rawle 142; and (he t,ritidple applies with equal fitness to declarations on such rights.
Judgment arrested.