United States v. Slaymaker , 4 Wash. C. C. 169 ( 1821 )

WASHINGTON, Circuit Justice.

It was decided at the last session of this court, that the defendant could not rule the marshal to return the writ of habere facias possession-em, although the plaintiff may. The reason of the rule is, that it affords the plaintiff the best security for obtaining the full benefit of his judgment, by enabling him to renew the execution at his pleasure, until he has the full enjoyment of the possession. For if after he is put into possession, and the officer has departed, he is again turned out by the defendant, he may, upon a suggestion, “vice-comes non misit breve,” obtain an attachment, or sue out a new habere facias. pos-sessionem, so as to regain the possession. If he is turned out by a stranger, the rule is otherwise, for he is then put to his ejectment, or to his writ of forcible entry and .detainer; because, in this latter case, the title never was tried in respect to the stranger. But if the first writ'be returned executed, the plaintiff can never obtain a new writ, although he should afterwards be turned out even by the defendant; because it then appears on record, that the plaintiff has had the full benefit of his suit, and the new execution would be superfluous.

It is no objection therefore to the new writ, that in point of fact, the first writ has been fully executed, if the evidence is merely in pais, and not of record; and resistance to such new writ by the defendant and his agents, would be as much an offence against the law, as if the resistance had been to the original writ. 2 Keb. 245; 1 Keb. 779, 785; Style, 338, 408; 6 Mod. 27; 2 Brownl. & G. 216, 253; Palm. 289; 1 Rolle, 353; Salk. 321. It is true that there is a late English case to be met with in 1 Taunt. 55, in which it is decided that if the habere facias possessionem be executed, it ought to be returned, and that if the plaintiff be turned out by the defendant, a new writ cannot issue. But considering the old cases as authority binding upon us, which the case above referred to is not, and that the former are bottomed upon the soundest reason; we shall adhere to the rule which they have sanctioned.

In this case, we can feel no doubt but that the alias habere facias possessionem was m reality the writ which the deputy had to execute; and if so, the variance between the evidence and the indictment is fatal. If, on the other hand, there be no such variance,, then the original writ could not be legally executed after the day to which it was returned. It was then functus officio. In this case the indictment cannot be' supported. The district attorney entered a nolle prose-qui.