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as they had neglected to appear to the action, after having been
duly served with the process commencing it. Had they taken
judgment thus against Fundenburgh and E. Lloyd, they could
then have proceeded by a jury, as well to try the issue joined with
Nelson, as to inquire of the damages; and in case the jury found
the issue against Nelson, it would have been their duty to have
assessed the damages against all the three defendants. Sir John
Heydon's case, 11 Co. 5; Dicker v. Adams 2 Bos. &? Pull. 163,
(see 2 Tic/d's Prac. 7789, 926, (8th ed.); Jones v. Harris, 2
Strange 1108. It is too late now, however, for the plaintiffs be-
low to relieve themselves from the error into which they have
fallen. Their claim being founded upon contract, they cannot
enter a nolle prosequi as to Fundenburgh and E. Lloyd after a
final judgment against Nelson; nor could they have done so at
any time before, unless, Fundenburgh and E. Lloyd had appeared
and pleaded some matter operating so as to produce their personal
discharge. If the plaintiffs below had entered a nolle prosequi
without some such cause to warrant it, Nelson as well as Funden-
burgh and E. Lloyd, would, have been thereby relieved from their
claim. Noke el al. v. Ingham, 1 JVilso 89.

The judgment reversed and a venire de novo awarded.

After the judgment of reversal was entered in the foregoing case
an application was made to the court, on behalf of the defendants
in error, for leave to amend by entering judgment against Funden-
burgh and E. Lloyd mine pro tune. A paper or writing purport-
ing to be a letter of attorney from Fundenburgh and E. Lloyd to
the plaintiffs below, which, it was said, authorised such a judg-
ment to be entered if practicable and regular, was also produced
and shown.

J'3 li' J < J* 5 ir.' >*' f?*' 1 '' ' ' : ' " -"' ' *

Fidnlay,in support of the application, cited the following autho-
rities: Rex v. Mayor and Burgesses of Grampond 7 Term Rep.
669; Hill v. West, I Sinn. 486; Bank of Newburg v. Lyman,
14 Jo/ins. Rep. 219; Close v. Gillespy, 3 Jo/ins. Rep. 526; Petrice
ix. c*



26 SUPREME COURT [Pittsburgh

[Nelson v. Lloyd.]

v. Hannay, 3 Term Rep. 659; Rees v. Morgan, 3 Term Rep. 349;
Darrah v. Warnack, 1 Penn. Rep. 21 2; Burrow 2730; Strange
1182: 7 Cowen 425, 524; 2 Cowen 408; 7 i/oA/u. /te/?. 468;
Strange 869; 1 /o/ms. CV/. 410; 3 Cowen 44; 4 /6zW. 455; 5 Hal-
stead's Rep. 222; 6 Term Rep. 8.

Williamson, contra, cited, Righter v. Rittenhouse, 3 Rawle 281;
Cooper v. Bell, 15 JbArtJ. /frp. ~318; 2 Tidd's Prac. 1121,c. 43,
also page 802; 3 Bos. fy Pull. 321; Smith v. Jackson, 1 Paine
486; Racket v. Home, 3 Mod. Rep. 135; Razing v. Ruddack,
Cro. Eliz. 649.

KENNEDY, J. The object of the application seems to be to have
the judgment and the proceedings of the court below so amended as
that there shall be a joint judgment entered in favor of the plain-
tiffs below against the three persons named in their writ and de-
claration as defendants, for the amount of the judgment obtained
there, against Nelson the plaintiff in error, alone. The counsel, for
this purpose, have produced a? power of attorney purporting to
have been executed by Samuel Funderibnrgh and Ephraim Lloyd,
who were joined with the plaintiff in error as co-defendants in the
commencement of the suit below, releasing to the plaintiffs below
any error or errors which may be found in the judgment, or in any
of the proceedings or process of the said district court in which the
judgment was rendered; and authorising the said plaintiffs or their
attorney to make any amendment or amendments in any part of
the proceedings in said suit, and to modify and alter, with leave
of the proper court, the said judgment or any part of the proceed-
ings in the said district court, with the same effect, as if the same,
so modified or altered, had been entered in proper form at the pro-
per time. It is self evident that Fundenburgh and E. Lloyd are
totally incapable of releasing, either by themselves or by their at-
torney, any errors in the judgment of the district court, which
affect the rights and the interest of Nelson, the plaintiff in error, so
that nothing can be done under the power of attorney, in this
respect, that will avail the defendants in error any thing. It is
also equally evident that no final judgment can be entered against
Fundenburgh, E. Lloyd and Nelson jointly for any amount in
favor of the defendants in error, without the consent of Nelson, or
without his having joined the other two in a letter of attorney
authorising it to be done. Neither is it easy to conceive how any
confession of judgment, at this time, by Fundenburgh and E. Lloyd
either in person or under their power of attorney could be incor-
porated and united with the judgment of the district court against
Nelson without his consent, so as to form one entire final judg-
ment, and one only against the three. The judgment against
Nelson is a judgment against him alone upon a verdict in strict
conformity thereto; and I am not aware that a judgment upon a



Sept. 1839.] OF PENNSYLVANIA. 27

[Nelson v. Lloyd.]

general verdict, in conformity to it, has ever been modified or
changed to the extent that would be requisite here, in order to
correct the error in the court below. None of the authorities which
have been cited, go so far. If Fundenburgh,E. Lloyd and Nelson
had all united in giving a power of attorney, authorising the con-
fession of a judgment against them in favor of the defendants in
error, for the amount of their claim; and in executing such power,
the judgment, through some mistake, had been entered against
Nelson alone, it might doubtless, according to the principle of the
authorities cited, have been corrected; and the judgment been so
amended as to make it conform to the power of attorney. But
that would present a very different case from the present; and in
short one bearing no analogy to it whatever. We are unable to
perceive how the amendment asked for can be made without de-
parting from and setting aside the established rules of practice.
The application is, therefore, discharged.



West against Jones.

Assumpsit cannot be maintained by a .contractor, for work done for the state
of Pennsylvania, against the superintendant: he is a public officer, and account-
able only to the Commonwealth.

ERROR to the district court of ^Allegheny county.

Nicholas West for the use of his trustee against Samuel Jones.
The plaintiff was a contractor for work upon the Pennsylvania
canal, and obtained a final estimate for 376 dollars 31 cents. The
defendant was the superintendant of the work, and the disbursing
officer of the state. After the work was completed, he paid the
estimate to Samuel Kinley for the plaintiff. Upon the allegation
that this was an erroneous payment this suit was brought.

Grier, president, ruled that the action could not be maintained,
and directed a verdict for the defendant.

Findlay, for plaintiff in error.

Lowry, contra, cited 8 Cowen 191; 2 Com. Law Rep. 432; 10
Com. Law Rep. 192, 302; 7 Com. Law Rep. 7s; 4 Taunt. 190.

PER CURIAM. The defendant was only an instrument in the
hands of the government to make payment in its name. The
debt was not his, nor is he personally liable for it.

Judgment affirmed.



28 SUPREME COURT [Pittsburgh



Altemas against Campbell.

An entry upon land will avoid the operation of the statute of limitation; but
it must be accompanied by an explicit declaration, or an act of notorious domi-
nion by which the claimant challenges the right of the occupant.

ERROR to a special court of Indiana county.

Nicholas Altemas against Andrew Campbell and William
Gamble. Ejectment for a tract of land, containing three hundred
and twenty acres: for which the plaintiff gave in evidence a re-
gular chain of title from the commonwealth down to himself.

The defendants relied upon the statute of limitation and gave
proof, that they, and those under whom they claim, had been in
possession of the land, for more than thirty years. To avoid the
effect of this defence the plaintiff, having previously shown that in
1818 Mary Gilpin, Joseph Gilpin and others were the owners of
the legal title, gave in evidence a power of attorney from them
to Daniel Stannard Esq., whom they called as a witness who testi-
fied as follows:

" I received this letter of attorney not long after its date; soon
after I got it, I sent or wrote to Andrew Campbell who, I under-
stood, was residing on one of the tracts of land; he came to Indi-
ana, to my house; I requested him to take a lease; I told him at
whose instance in behalf of Mary Gilpin's children; there was
no agreement entered into at that time. It was then arranged that
I should go to his house and see it: I did so, and again told him
about his taking a lease: no agreement was entered into at that
time, or any other. I was there but once; I do not distinctly re-
collect what he said; I never had any conversation with Mr Gam-
ble; I did not ask Campbell to leave the place; Mr Campbell did
not converse freely; I cannot state a single fact he stated; I do not
recollect any thing he said, or a single fact that he stated; I was
not there over half an hour; I went to Campbell's to get Mr
Campbell to take a lease, but he did not do it; it was within a year
after I received this letter of attorney; I do not recollect what
Campbell said, when at my house; I cannot state what his reply
was tome, when I wanted him to take a lease; I have often seen
Mr Campbell; do not recollect any conversation at any other time;
I do not recollect that he stated he would come at another time."

" Dr. John Gilpin sworn, testified In 1827 or 1828 I went on
the land; did not see Mr Campbell; I went again not certain
whether in 1827 or 1828 Mr Campbell was at home; I told him
I was one of the heirs that claimed this land; he said a good many



Sept. 1839.] OF PENNSYLVANIA. 29

[Altemas v. Campbell.]

claimed it some other persons had been there claiming. I showed
him the papers had the patent and draft. There was this under-
standing when I left him: he was to appoint one person and I an-
other, and we were to agree to what they would say. I sent a
man of the name of Ware, from Blairsville in pursuance of that
understanding; Mr Ware returned, and said he had done nothing.
I wanted to settle the difficulty. This conversation with Mr
Campbell occurred on the land. Never had any conversation with
Mr Gamble. I do not recollect telling Mr Campbell I would let
the law settle it between us."

The ground taken by the plaintiff below was, that the entry
made by Daniel Stannard Esq., and Dr Gilpin, as proved by them,
was such as to avoid the operation of the statute of limitation and
requested the court so to charge the jury.

Burnside, president. We refuse to answer this point as request-
ed. If the possession was adverse, such entry as proved and sta-
ted in this point, will not prevent the operation of the statute. The
act requires a suit or action: an action now pressed, will not take
the case out of the statute; the construction contended for, would
make the statute a dead letter.

The evidence, as given by Mr Stannard and Dr Gilpin, is for
the jury, and will be considered by them in determining whether
the defendants' possession was adverse; we submit it to your con-
sideration, but we refuse to instruct you that their evidence takes
the case out of the statute.

Buffington, for plaintiff in error, cited Co. Lit. 15, 252, 238; 1
Salk. 285; 3 Sulk. 132; 3 Bla. Com. 175; 10 Serg. 8? Rawle 148:
1 Dall 16, 67; 3 Binn. 388; 12 Serg. fy Rawle 341, 3 Serg <$
Rawle 3SO; 7 Serg. fy Rawle 140; 15 Mass. 471; 4 Wash. C. C.
369.

H. D. Foster and J. B. Alexander, contra, cited 4 Whart. 287,
260.

The opinion of the Court was delivered by

GIBSON, C. J. If the judge intended to charge, as he probably
did, that entry without action does not avoid the statute of limi-
tations, he fell into an inaccuracy. In our act of 1 785, is comprised
the substance of the 21 Jac. 1, c. 16, under which an entry has
always had its common law properties; and these have been
attributed to it, under our own statute, by the ablest men in the
profession. In 1803, when the statute was about to close its bar
on rights of entry in existence at its enactment, the agent of the
Penn family, under the direction of the late Edward Tilghman,
caused entries to be made into the messuages and lots in York and
Carlisle, for the preservation of the proprietary quit rents. Indeed
the statute expressly recognises the conservative properties of an



30 SUPREME COURT [Pittsburgh

[Altemas v. Campbell.]

entry alone, by treating it as an alternative for an action. These
properties, however, are purely technical, and not to be favoured.
An entry puts the owner, for a time, in actual possession; and as
that, in the case of a mixed occupancy, is referrable to him ex-
clusively who has the right, it gives him momentarily the advan-
tages of actual enjoyment; and momentarily displacing the adverse
possession of the occupant, it instantly undoes all that his intrusion
had done towards the accomplishment of a title. Yet it must be
perceived that this effect is subversive of the purpose of the
statute, which is to compel parties to settle their controversies
while the evidence of their rights is attainable, and to put a rea-
sonable period to the evils of a contested ownership. By repeated
entries within periods of twenty-one years, a contest might be
kept on foot interminably, or till the occupant's proofs had perished
with those who could establish them; when, having been deterred
from cultivating and improving the land, he might, at last, be left
defenceless by the lapse of time, which, instead of having fortified
his title as it ought, would be found to have destroyed it. Such
might be the magic of a possession gained by an entry into an
obscure corner of the land, which the law would not otherwise
protect, and which it would not suffer the party to maintain.
Such an entry, however, we are compelled by the terms of the
statute to say, is as effective as an action; but we are at liberty,
and policy requires us, to hold the plaintiff to strict proof of a
formal observance of the ceremony. What then, is an entry at
the common law?

In Dunning v. Carothers, 3 Serg. fy Rawle 385, 1 was of opin-
ion that claim of title made upon the land, might be left to the
jury as evidence of a formal entry an opinion which I unre-
servedly retract, substituting, for it, the opinion expressed by Mr
Justice Washington, in the fourth volume of his reports, p. 369,
when the cause was brought before him by a new ejectment in
the circuit court of the United States. The office of an entry is
not to claim title, but to regain a pedal possession; and it has been
said that to make it good, the former possessor and his servants
must be removed from the land an assertion qualified by Lord
Holt in an anonymous case in 1 Salk. 246, who says that an entry
without expulsion, makes such a seisin only, that the law will
adjudge him in possession who has the right; but that it will not
work a disseisin or abatement. The first bears a resemblance to
livery of seisin, the difference being, that the party is invested by
his own act in the one case, and by the act of the occupant in the
other. Hence it is, that Lord Coke says: " By the entry of the
lessee, he is in actual possession, and then the livery cannot be
made to him that is in possession; for quod semel meum est,
amplius meum esse non potent." Co. Lit. 49, b. The effect of
an entry, it is agreed, depends on the intent of it, expressed by
words, or intimated by an act equally significant. I would say,



Sept. 1839.] OF PENNSYLVANIA. 31

[Altemas v. Campbell.]

in a few words, that there must be an explicit declaration, or an
act of notorious dominion, by which the claimant challenges the
right of the occupant; or it cannot perhaps be better defined than
by saying that the entry must bear, on the face of it, an unequivo-
cal intent to resume the actual possession. Let us turn then to
the testimony of the plaintiff's agent, to see whether his presence
on the land was for that purpose. The defendant called on him,
in pursuance of a message, to accept a lease, but no lease was
executed. " It was then arranged," said the witness, " that I
should go to the house and see it. I did so; and again told him
about his taking a lease. No agreement was entered into at that
time or any other. I did not ask him to leave the place." It is
plain from this, that the object of the visit was a compromise
which was not effected. He met the defendant on the land by
appointment; and not to take or receive the possession of it from
him, but to make an arrangement that would settle him in it.
Now, what says Lord Coke to such a case? " If the bastard
invite the mulier to his house, to see pictures, or to dine with him,
or to hawk, hunt, or sport with him, or such like, upon the land
descended; and the mulier cometh upon the land accordingly; this
is no interruption, because he came by the consent of the bastard,
and therefore the corning upon the land can be no trespass; but if
the mulier cometh upon the ground of his own head, or cutteth a
tree, or diggeth the soil, or take any profit, these shall be interrup-
tions; for rather than the bastard shall punish him in an action of
trespass, the act shall amount in law to an entry, because he hath
a right of entry." Co. Lift. 245. b. And again: "If the tenant
in an assize of an house, desire the plaintiff to dine with him in the
house, which the plaintiff doth accordingly, and so they be both
in the house; and in truth one pretendeth one title, and the other
another title; yet the law, in this case, shall not adjudge the pos-
session in him that right hath." Ibid. 268, a. In the case before
us, the agent came to the defendant's house by invitation cer-
tainly by preconcert the object being a visit of business proba-
blybut still a visit, and not an intrusion; and though he unsuc-
cessfully importuned the defendant to become a lessee, the case
Was precisely that put by Lord Coke where one pretendeth one
title, and the other another as one which gives not the possession
to him who has the right. However, then, we may differ from
the judge in regard to the effect of a formal entry, we entirely
concur with hitn, that there was no evidence of it to be left to the
jury.

Judgment affirmed.



33 SUPREME COURT [Pittsburgh



Robertson against Robertson.

In all cases of fraud, and when the transaction in relation to the purchase of
land has been carried on mala fide, there is a resulting trust by operation of law;
but unless there be something in the transaction more than is implied from the
mere violation of a parol agreement, equity will not decree the purchaser to be
a trustee.

Quere. If an action of ejectment be brought for the undivided moiety of a
tract of land, whether a verdict and judgment for any portion of it in severally
would be good?

ERROR to the court of common pleas of Allegheny county.

Richard Robertson against John Robertson. Ejectment for the
undivided half of a tract of land containing 151 acres. This case
involved a construction of the statute of frauds and perjuries, and
depended upon parol testimony of the acts, declarations and con-
duct of the parties, so voluminous as to be beyond the limits of a
report; the material facts, however, are accurately staled in the
opinion of the court. The cause was argued by

Lowrie and Foster for plaintiff in error, who cited 2 Watts
324; 5 Watts 390; 6 Watts 464.

Irwin and Mahon, contra, cited 4 Eng. Con. Cha. Rep. 320; 2
Serg. Sf Rawle 461; 1 Lai. 427; 3 Bin. 302; 1 Rawle 408; 8
Serg. &> Rawle 484.

The opinion of the court was delivered by

ROGERS J. Sometime in the year 1806 or 1307, James Robert-
son, who was the father of the parties, took possession of the land
in dispute. The land had been previously sold, by an article of
agreement, to John Denning. Robertson took possession of the
land, under Denning, subject to certain terms and conditions. Ast-
ley and Gibson were the owners of the legal title. James Robert-
son continued in possession of the tract for several years, and be-
coming indebted, his interest was sold under a judgment against him
by the sheriff, and a deed by the sheriff to Joseph Barcley, who
purchased the property for Hugh Robertson, was acknowledged on
the 19th of November, 1829. In consideration of 72 dollars, Joseph
Barcley conveyed to Hugh Robertson. Before the purchase of
the property at sheriff's sale, John Robertson, the present defendant,
and Hugh Robertson, his brother, entered into an article of agree-
ment, by which, in consideration of 72 dollars, Hugh Robertson



Sept. 1839.] OF PENNSYLVANIA. 33

[Robertson v. Robertson.]

stipulated to make over to John Robertson, on the payment of his
note, and any other costs, that may accrue in the procuring of the
same, his interest in the land purchased at the sheriff's sale, with
the understanding, that in making the deed, the property was to
remain to the use of their parents, if they think proper to reside
thereon, as long as they live.

This contract has been fully complied with by John, as appears
by the testimony of Hugh Robertson, the other contracting party.

Richard Robertson, the present plaintiff, on the 15th of Septem-
ber 1832, entered into an article of agreement with his brother
John, (the defendant,) by which John grants to Richard twenty-five
acres of the northeast corner, including the run, on which the old
school house now stands, to have and to hold the same, during
the natural life of Richard. The consideration was the sum of one
dollar, and appears, from the testimony of Hugh Robertson, was
an act of charity and brotherly kindness on the part of John to his
brother Richard, who was poor and sickly. The situation in which
the plaintiff and defendant then stood was, that John had an equi-
table title, or fee simple to the whole tract, subject to the life estate
of Richard, in twenty-five acres, and also subject to the payment
of the unpaid purchase money, due to Messrs. Astley & Gibson,
the owners of the legal title, on their article of agreement with Den-
ning, under whom both plaintiff and defendant must claim.

The plaintiff' and defendant took possession of the property,
Richard of twenty-five acres, and John of the residue of the tract,
and made improvements thereon, until the 7th of November J835,
when Thomas Astley, to whom a patent was granted on the 18th
of April 1832, instituted an action of ejectment, against the tenants
in possession; viz., Richard and John, which, on trial, the 17th of
May 1836, resulted in a verdict and judgment in favor of the
plaintiff. On an alias haberi facias possessionem, to the 7th of
April 1839, possession was delivered to Thomas Astley.

On the 28th of September 1836, in consideration of 3066 dollars,
Thomas Astley conveys the property, as described in the patent,
to John Robertson.

John Robertson, then, is the owner of the legal title to the whole
tract, and the owner of the legal and equitable title, subject to a
life interest, in Richard, of twenty-five acres, pursuant to the
agreement.

The ejectment is brought by Richard, to recover from John, who
is in possession of the whole tract, an undivided half of a tract of
land, containing one hundred and fifty-one acres, &c. That is to
say, he claims one half of what remains, after the conveyances of
the land, which were sold to raise the means of discharging the
claims of Mr. Astley.

The plaintiff claims the possession, on the ground of a parol
contract, payment of the whole or part of the purchase money, and
a possession taken of the property in pursuance of the contract. In

IX. D



34 SUPREME COURT [Pittsburgh

[Robertson v. Robertson.]

this stage of Ihe proceedings, it is necessary to correct a mistake,
into which the court seem to have fallen, and which pervaded the
argument of the counsel throughout. The allegation on the part
of the plaintiff, say the court, necessarily involves a gross fraud on
the part of the defendant. If the plaintiff recovers, it can only be
by the establishment of such an imputation. As I understand the
testimony, there is no more fraud here, than what is implied in
every breach of contract. And that, as has been repeatedly held, is
not such a fraud, as takes a case out of the statute. It does not
constitute John Robertson such a trustee as to let in parol proof of
the contract; for there is not that mala fides, from which, in En-



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