Fitzalden versus Lee

Fitzalden versus Lee. 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. 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 rigors juris; and, in the case of forcible entries, it arises only from an equitable construction of the statutes, 1 Hawk. 140. feel. 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 exercifed 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. See 1 Vol Dall. Edit. p. 617. [MAJORITY — By the Court:] By the Court: :-Execution is of right; yet it may be, and every day is, withheld on proper reasons being shewn. The defendant is in possession under the agreement, of the plaintiff, and it is fraudulent for any man to attempt to overthrow his agreement in this manner. Under all the circumstances of the case, we do not think it proper to issue a writ of restitution. Motion refused.