Carlisle Et Ux. v. Cunningham

1 U.S. 81, 1 L. Ed. 46, 1 Dall. 81, 1784 U.S. LEXIS 92

• Court: Supreme Court of the United States
• Decided: June 1, 1784
• Status: Published

Opinion

Levy obtained a rule to show cause, why a bouse which bad been delivered to the plaintiffs on a liberari facias, that issued in tbis cause, should not now be surrendered to tbe vendee of tbe defendant, upon bis bringing into court, the principal, interest and costs.

On the 9th of August, Lewis and Sergeant showed cause, and the rule was discharged; The Court being unwilling to go into the matter in a summary mode, upon mere motion, and expressing their dislike of the ampliare jurisdictionem. The principal question was, therefore, left undetermined. (a)

(a) This motion was made when house-rent was rising very rapidly, and the defendant’s house, in the present instance, was extended at a very moderate valuation; the residue of the term was, therefore, a great object to both parties. I have not heard, however, of any other attempt being made by the defendant; but, I think, the court recommended the scire facias ad computandum, which issues in England, where tenant by elegit holds over, after being satisfied for debt and costs. 1 In Wall v. Lloyd, 1 S. & R. 320, it was held, that the valuation by the inquest was not conclusive upon the plaintiff, where the land was taken out of his hands by a subsequent execution, before his debt was satisfied, but that he was to account for the real profits, that is, such as he might have made with reasonable care and diligence. Whether the court could interfere, when the plaintiff retained possession during the term, was said by C. J. Tilghman, never to have been decided; but Judge Yeates seemed to think, that he would be concluded by the inquest (p. 325-6.) See the note at p. 62, &c., of 1 Sm. Laws.

1 A scire facias ad computandum may issue, on presentation of an affidavit, showing a prima fade case of satisfaction. Scofield v. Harbeson, 9 Phila. 38.