(2) Declaration. In an action on a poor debtor's bond the declaration should allege sufficient facts to show a compliance with the statute in the proceedings in which the bond was taken.1 Thus, the jurisdiction of the magistrate to take the bond should be shown.2 (3) Plea-Performance. In pleading performance of one of the alternative conditions of the bond, as by taking the poor debtor's oath, it is not necessary to aver specially the issue and service of citation to the creditor, or other proceedings necessary to be had in order to the granting of the certificate.3 plaintiff. Blake v. Mahan, 2 Allen (Mass.) 75. The burden is on the plaintiff to prove a breach. Thornton v. Adams, II Gray (Mass.) 391. 1. Imprisonment of Debtor at Time of Giving Bond. The declaration on a jail bond must aver that the party was imprisoned in jail at the time of giving the bond. Gregory v. Thrall, 28 Vt. 305. Jailer Properly Commanded to Keep Prisoner. An averment in the declaration that the sheriff committed the debtor to the jail until he should pay and satisfy to the plaintiff his damages and costs, as by said writ he was commanded, sufficiently imports that the jailer was properly commanded, in the execution, to keep the prisoner. Dyer v. Cleaveland, 18 Vt. 241. Need Not Allege Notice to Creditor. In an action against the sureties on a poor debtor's recognizance it was held that the declaration need not allege that any citation was served upon the debtor, if to such declaration are annexed copies of the execution, the creditor's affidavit upon his application for the arrest of the debtor, and the certificate of the court stating that action it appears from the evidence before the said court that said debtor has been duly notified to appear before the said court for examination." This is sufficient proof that notice was given. Stearns v. Hemenway, 162 Mass. 17. Need Not Allege Nonpayment of Execution. The declaration in an upon a recognizance, entered into upon an application by one who has been arrested on execution to take the poor debtor's oath, need not aver affirmatively that the execution had not been paid. Webber v. Davis, 5 Allen (Mass.) 393. Sufficient Showing that Execution Was Properly Directed. An averment in a declaration in debt on a jail bond that the execution issued in due form of law, and was delivered to the sheriff to levy, serve, and return according to law, and that, for want of goods, etc., whereon to levy, the sherifi, by virtue of the execution, and according to the precepts thereof, arrested the body of the debtor, etc., sufficiently imports that the execution was properly directed to a legal officer. Dyer v. Cleaveland, 18 Vt. 241. 2. Jurisdiction Need Not Be Expressly Averred. If the declaration in an action on a poor debtor's recognizance sets forth all the facts necessary to give jurisdiction to the magistrate by whom the recognizance was taken, it is sufficient without expressly averring that he had jurisdiction. Com. v. Cutter, 98 Mass. 31. Sufficient Showing of Jurisdiction. — A declaration sufficiently sets forth the authority of a magistrate to take a recognizance upon an application to take the poor debtor's oath if it alleges that he was a commissioner of insolvency within and for the county where it was taken, and duly authorized to act in such cases. Webber v. Davis, 5 Allen (Mass.) 393. 3. Brown v. Foster, 6 R. I. 564. As to the plea of performance in actions on bonds, see article BONDS, vol. 3, p. 662. How Discharge Pleaded. — In pleading a discharge of a prisoner under the Poor Debtor's Act it is necessary to aver that a complaint was made by the debtor to the justice that he had no property, etc., wherewith to support himself in prison and to pay prison charges, and asking to be admitted to take the poor debtor's oath, such complaint being necessary to give the justice jurisdiction of the subject-matter; after which the certificate of discharge may be set out with a taliter processum Brown v. Foster, 6 R. I. 564. Should Conclude with Verification. — In est. Non Est Factum, Under the plea of non est factum in such action the defendant may avail himself of any ground of defense showing that there never was any legal validity to the bond.1 Nil Debet is not a good plea in an action of debt on a poor debtor's bond.2 debt on a prison-limits bond, where the declaration sets out a breach of the bond by the escape of the prisoner, a plea of the discharge of the prisoner from jail under the Poor Debtor's Act, containing new matter by way of confession and avoidance of the going of the prisoner beyond the limits, should not conclude with a special traverse of the escape, to the country, but with a verification; and a replication to such plea, averring that no citation to the credit was issued by the justices who granted the discharge, or was served upon the creditor, is not liable to objection because the plaintiff did not join in the issue tendered by the special traverse, but attacked the validity of the discharge under which the pris oner justifies. Brown v. Foster, 6 R. I. 564. What Sufficient to Support Plea of Performance. In an action on a poor debtor's bond, if it is shown that one of the alternative conditions of the bond has been fulfilled, it is sufficient to support a plea of performance. Blanchard v. Blood, 87 Me. 255. Debtor Estopped to Attack Validity of Bond. - A plea of performance of the conditions of a poor debtor's bond estops the debtor from claiming it to be, by reason of its variance from the requirements of the statute, a commonlaw bond. Hackett v. Lane, 61 Me. 31. 743 1. Downer v. Dana, 19 Vt. 338. 2. Dyer v. Cleaveland, 18 Vt. 241. Volume XVI. POSSESSION. See article TITLE, OWNERSHIP, AND POSSESSION. POSSESSION, WRIT OF. BY HENRY STEPHEN. I. DEFINITION, USE OF WRIT, AND SCOPE OF ARTICLE, 744. 1. Definition, 744. 2. Use of Writ, 745. 3. Scope of Article, 745. II. FORM AND CONTENTS OF WRIT, 745. III. ISSUANCE OF WRIT, 747. 1. Limitation, 747. 2. Writ Issuing of Course, 747. 3. On Motion, 748. IV. CONTROL OF WRIT, 749. V. EXECUTION, 751. 1. Time of Making, 751. 2. How Effected, 751. 5. Sufficiency Of, 755 VI. RELIEF AGAINST WRIT AFTER EXECUTION, 756. VII. ALIAS AND PLURIES WRITS, 758. CROSS-REFERENCES. As to Writs of Restitution see article RESTITUTION, and see the General Index to this work. L. DEFINITION, USE OF WRIT, AND SCOPE OF ARTICLE — 1. Definition. A writ of possession or habere facias possessionem is one which directs a ministerial officer1 to give one who is entitled thereto the actual possession of what has been recovered in an action. 2 - Originally the writ was used 2. Use of Writ—A Common-law Writ. only in the common-law action of ejectment, to place a successful plaintiff in possession of the fruits of his judgment, and never issued from a court of chancery.2 Modern Use of Writ. Under the modern practice, however, the writ in many jurisdictions is granted by a court of equity to enforce its decrees; 3 and it is also used in statutory actions of ejectment, actions to recover land, and in trespass to try title.5 In short, whenever the object is to place a person in the possession of real or personal property, the writ in use is that of possession. 3. Scope of Article. As, however, the practice respecting writs of possession is the same in principle whether issuing at common law, in equity, or under a statute, this article is intended to include all writs in the nature of the common-law writ of habere facias possessionem.® II. FORM AND CONTENTS OF WRIT. The form of writ principally used in modern times differs but little from the ancient one, and is prescribed substantially in the various codes of practice; 7 and their statutory requirements (as in other writs of execution) ternational, etc., R. Co., 5 Tex. Civ. App. 261. And see generally article RECEIVERS. 1. Bac. Abr., tit. Execution, D 5. 2. Wallen v. Williams, 7 Cranch (U. S.) 602, citing 5 Com. Dig., Pleader, 3 B. 20; 9 Vin. Abr., tit. Error, F, pl. 3. 3. In Tennessee, even before the code, a court of chancery had jurisdiction to award a writ of possession for land where a controversy concerning the Irvine v. title was properly in court. McRee, 5 Humph. (Tenn.) 554. In Suits to Quiet Title.-So also where the bill is one to quiet title the writ has been used in some states. Trabue v. Ingles, 6 B. Mon. (Ky.) 84; Ballinger v. Waller, 9 B. Mon. (Ky.) 68; Lombard v. Atwater, 43 Iowa 599; Lees v. Wetmore, 58 Iowa 170; Wyland v. Mendel, 78 Iowa 739; Strabala v. Lewis, 80 Iowa 510; Landregan v. Peppin, 94 Cal. 465. After Dower Had Been Assigned the writ was awarded in Agnew v. Lichten, 19 Ill. App. 79. - In Partition Suits the court may carry its decree into effect by awarding the writ. Kern v. Zink, 55 Ill. 449. - In cases where After Judicial Sale. property is sold under a decree of court the writ may be awarded. Junek v. Hezeau, 11 La. Ann. 731; Smyrna Bldg. Loan Assoc. v. Worden, 5 Houst. (Del.) 508; Wright v. Rodney, 5 Houst. v. (Del.) 573; Harryman v. Starr, 56 Md. In Federal Courts the writ may be awarded where it is permissible in state practice. Leighton v. Young, 10 U. S. App. 298. 4. See the statutes of the various states. 5. Isler v. Foy, 66 N. Car. 547; Field v. Moody, 111 N. Car. 353; Meyer v. Kirlicks, (Tex. Civ. App. 1894) 25 S. W. Rep. 652; Willburn v. Tow, (Tex. Civ. App. 1893) 23 S. W. Rep. 853: Carleton v. Hausler, (Tex. Civ. App. 1899) 49 S. W. Rep. 118. 6. Confusion of Terms. Reporters and law writers have in many instances designated as writs of possession those which in reality are either writs of assistance or writs of restitution. to the former, see article ASSISTANCE, Writ of, vol. 2, p. 975; and as to the latter, see article RESTITUTION, WRIT 745 OF. As 7. Forms. For an old form of the writ see Wentworth's Pleading, vol. 10, p. 49. For forms of modern writs see Rev. Stat. Ill., c. 45, § 42; Code Civ. Pro. Cal., § 682; Code Civ. Pro. N. Y., § 1373. Volume XVI. must be strictly followed.1 Description of Premises Recovered. But with respect to the idiosyncrasies peculiar to a writ of possession, the description of the premises, which the officer is directed to give to the plaintiff, is of a general character, though, in order that the execution of the writ may be the more certain, it should follow the judgment and declaration. But whether the description be general or 2 1. See article EXECUTIONS AGAINST PROPERTY, vol. 8, p. 388. 2. Minute and Precise Description Not Required. It is the modern practice for the plaintiff to point out the premises to the sheriff, as it was found by experience that the contrary course of requiring a minute and precise description of the land was attended with many inconveniences. If a description be minute, it must be exact or its very minuteness only misleads. It is true that, under this practice, a plaintiff may seek to obtain possession of more than he has recovered; but in such case the courts will interfere summarily and restrict the action of the sheriff under the writ to the land to which the plaintiff proves title at the trial. Johnson v. Nevill, 65 N. Car. 677. 3. Williams v. Kelso, 7 La. 409, holding that as Code Prac. La., art. 630, 631, requires that the writ shall be directed to the sheriff with a copy of the judgment and a copy of the petition to which it refers, reasonable certainty, at least, is required. Where Division Lines Are in Dispute the description should describe the lands adjudged with sufficient certainty to enable the officer correctly and intelligently to execute the writ. Franklin v. Haynes, 119 Mo. 566. See also Clark v. Clark, 7 Vt. 190; Davis v. Judge, 44 Vt. 500. 4. Sherman v. Hanno, 66 N. H. 160. Following Judgment and Complaint. -It is true that the sheriff is seldom or never provided with process so explicit on its face that he can, without the aid of extrinsic information, execute it with unerring certainty. He must avail himself of the information of others as to location, boundaries, etc. But then he must always have process so certain on its face that with the help of such extrinsic information he can look upon it and say that such or such are the premises described. The writ should, in fact, follow the judgment, and the judgment should 3 follow the complaint. Orton v. Noonan, 18 Wis. 447; Copley v. Bonner, 7 La. Ann. 579. Rule at Common Law. Moreover, the rule seems to have been the same at common law from a very early day. Thus, Roe v. Dawson, 3 Wils. 49, is reported as follows: "The plaintiff in ejectment, as tenant in common, recovered possession of five-eighths of a cottage, with the appurtenances, and a writ of possession was executed by the sheriff, who turned the tenant out of possession of the whole, and locked up the door, as appeared by affidavit. Curia: This is wrong; the writ ought to have pursued the verdict. Let there be a rule upon the sheriff." 5. Specifying Portion of Land Recovered. Where an entire tract of land is claimed and a verdict given for only a portion thereof, the writ will be bad unless it specifies that portion with exactness; for by this method questions are settled at once which might otherwise produce troublesome controversy in other forms. McCullough v. East Tennessee, etc., R. Co., (Ga. 1898) 32 S. E. Rep. 97. Citing Hicks v. Brinson, 100 Ga. 595; M'Arthur v. Porter, 6 Pet. (U. S.) 205; Hitchcox v. Rawson, 14 Gratt. (Va.) 526; Kyser v. Cannon, 29 Ohio St. 359; Smith v. Jenks, 10 S. & R. (Pa.) 153; Crommelin v. Minter, 9 Ala. 594: Bennet v. Morris, 9 Port. (Ala.) 171; Gregory v. Jacksons, 6 Munf. (Va.) 25. Where a general verdict was obtained by the plaintiff, who sued for five acres of land, and failed to prove title to twenty-nine feet, the court held that the writ should describe only that portion to which he showed title. Bledsoe v. Doe, 4 How. (Miss.) 13. See also Jackson v. Van Bergen, I Johns. Cas. (N. Y.) 101. Where the Verdict Was for Four Undivided Ninth Parts of a tract of land, in favor of four plaintiffs, and judgment therefor, a writ of habere facias possessionem issued to put the plaintiffs in possession of the whole tract of land |