10 Watts 338 | Pa. | 1840
The opinion of the court was delivered by
The first error assigned has reference to that part of the charge, in which his honour, the judge of the district court, says, “he (meaning the defendant) sustained no fiduciary character as regarded the plaintiff; he was not his guardian; he acted neither as plaintiff’s agent or trustee by any contract, express or implied, either in law or equity.” This is certainly all true, strictly so in point of fact;' at least it must be so considered, when not a syllable of testimony appears to have been adduced tending to prove the" contrary; and more especially, when, as the learned judge says in the preceding clause, “ by the plaintiff’s own showing, the defend
In regard to the second error, it may be observed, that it is impossible not to see that the action of assumpsit has been substituted here by the plaintiff for ejectment. It is not the case of a personal action brought for the breach of a promise or contract, relative to land or real estate, in any shape or form that can possibly be imagined or given to it. If it were so, and the title to such land had been brought in question, incidentally or collaterally, and in order to effectuate justice, it became necessary to inquire into and pass upon it, it would have to be done ex necessitati rei, notwithstanding the action is personal. But when, as in this case, no contract or promise whatever is even pretended to have been ever made between the parties, for the breach of which this action is brought; but on the contrary, the plaintiff, in order to sustain his case, com
Neither can we perceive any thing to complain of in the third error assigned. The court merely spoke of the possession which the defendant took and held of the lot, as it was shown to be by the evidence adduced by the plaintiff himself. In short, it was impossible to view it or to speak of it, as being other than, adverse to all the rest of the world.
Judgment affirmed.