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Writ of Assistance

court, sheriff, possession, chancery and equity

WRIT OF ASSISTANCE. A writ issuing out of chancery in pursuance of an order, commanding the sheriff to eject the defend ant from certain lands and to put the plain tiff in possession. Cowell ; 3 Steph. Com. 602; Bruce v. Roney, 18 Ill. 67. An ancient writ issuing out of the exchequer. Moz. & W.

A writ issuing from the court of excheq uer to the sheriff commanding him to be in aid of the king's tenants by knight's service, or the king's collectors, debtors, or account ants, to enforce payment of their own dues, in order to enable them to pay their own dues to the king. 1 Madox, Hist. Exch. 675.

A writ commanding the sheriff to assist a receiver, sequestrator, or other party in chancery to get possession of land withheld from him by another party to the suit. Quincy, Mass. Appx.; 2 Dan. Ch. Pr. 1062.

A process issuing in equity to enforce its decree, and coextensive with the court's ju risdiction to bear and determine the rights of the parties ; Fox v. Stubenrauch, 2 Cal. App. 88, 83 Pac. 82.

Its office is to give effect to chancery de crees, where the rights of the parties are fix ed thereby ; Ramsdell v. Maxwell, 32 Mich. 285; or to put a party into possession ; Sills v. Goodyear, 88 Mo. App. 316 ;. rests in sound discretion, and will issue only when the right is clear; Hagerman v. Heltzel, 21 Wash. 444, 58 Pac. 580.

These writs which issue from the equity side of the court of exchequer or from any court of chancery are at least as old as the reign of James I., and were formerly in com mon use in England, Ireland, and some of the United States ; 1 Yes. 454; 3 Swanst. 299, n. ; but whether from the odium attached to the name in Massachusetts or from the practice in that state to conform processes in equity to those at law, no instance is known of such a writ having been issued in that common wealth. Quincy, Mass. Appx. 369, with note

by Horace Gray.

A writ of assistance is founded on the general principle that a court of equity will, when it can do so justly, carry its own decrees into full execution without relying on . the co-operation of any other tribunal ; Beat ty v. De Forest, 27 N. J. Eq. 482, where it was remarked that it was of comparatively re cent use in that state, the first instance being in 1853. It can issue only against parties affected by the decree ; Howard v. R. Co., 101 U. S. 849, 25 L. Ed. 1081; Sills v. Good year, 88 Mo. App. 316 ; and not against one who entered on land pendente lite on claim of right; Merrill v. Wright, 65 Neb. 794, 91 N. W. 697, 101 Am. St. Rep. 645 ; the right to it may be lost by lathes ; Hooper v. Yonge, 69 Ala. 484. The order granting this writ is not appealable; Bryan v. Sanderson, 3 MacArthur (D. C.) 402.

It will not issue in favor of a purchaser at an execution sale, where there is a bona fide contest as to the right of possession ; Stanley v. Sullivan, 71 Wis. 585, 37 N. W. 801, 5 Am. St. Rep. 245.

Writs of assistance to seize uncustomed goods were introduced by statute 12 Charles II., c. 19, and were perhaps copied from the sheriff's patent of assistance ; 4 Doug. 347; these writs authorized the person to whom they were issued, with the assistance of the sheriff, justice of the peace, or constable, to enter into any house where the goods were suspected to be concealed. One acting under this writ and finding nothing was not jus tified ; 4 Dougl. 347. See Quincy, Mass. Rep. Appx. ; 1 Thayer, Cas. Const. L. ; 2 Dan. Ch. Pr. 1062.