2 U.S. 205 (1793)

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U.S. Supreme Court

FITZALDEN v. LEE, 2 U.S. 205 (1793)

2 U.S. 205 (Dall.)


Supreme Court of Pennsylvania

January Term, 1793

In Error. The plaintiff and defendant having some controversy about a tract of land, in Luzerne county, agreed to try the right to the possession in a summary manner, in the Court of Common Pleas, and the proceedings were drawn up, as if it had been a plaint under the landlord and tenant act.* The Jury having awarded possession to Lee, (the defendant in error,) judgment was rendered for him; and a writ of possession was issued, by virtue of which Fitzalden was turned out, and Lee put into possession. On error being brought, Ingersoll admitted that he could not support the judgment; but contended, that, as this proceeding was a matter of mutual consent and agreement, the Court ought not to aid the plaintiff in error to get back the possession of the land.

Page 2 U.S. 205, 206

The Court reversed the judgment.

Afterwards, Serjeant moved for a writ of restitution; and urged that it was a matter of right. 9 Vin. 589. 90. Restitution is of duty; but re- restitution is of grace.

Ingersoll replied, that restitution in this case was not ex rigore juris; and, in the case of forcible entries, it arises only from an equitable construction of the statues. 1 Hawk. 140. sect. 64. 65. This may be considered as a fair agreement, and though the Court may not be able to sanction the form of the proceedings, they will equitably interpose to prevent injustice being done. They have exercised Chancery powers, and one of the objects of Chancery is to prevent the party from availing himself of an unjust advantage at law. Mitford, 103.

Sergeant insisted, that although this Court adopted the principles of decision, they did not assume the powers, of the Court of Chancery.

Motion refused.


[Footnote *] See 1 Vol. Dall. Edit. p. 617.

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