
    WILLIAMS vs. KELSO.
    Western Dist.
    
      October, 1834.
    APPEAL FROM THE COURT OF THE SIXTH JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.
    The writ of execution must pursue the judgment. But if the judgment be in itself vague and uncertain, it may be rendered certain by reference to the pleadings.
    When a writ of possession is directed to a sheriff, a copy of the judgment, and a copy of the petition to which it refers, must accompany the writ, in order that the officer may not be mistaken in the premises, of which he is to give possession.
    So in a possessory action, when the premises in contest are so vaguely described in the pleadings, that they cannot be designated with any certainty, and the verdict and judgment are general, “that the plaintiff recover possession of ike land sued for,” they will be set aside as being too vague, and the cause remanded for a new trial.
    This is a possessory action, in which the plaintiff alleges, he is owner of a tract of land, of ten. arpents front, by the usual depth, on Bayou Robert, and that he has been in the quiet possession of it, for more than a year, and in the actual occupation and cultivation of the same, until recently, the defendant invaded'his premises, and forcibly and violently took possession of a part of said tract, without any legal authority.
    
      He alleges, he has sustained five hundred dollars damages, for which he prays judgment, and that he be restored to the possession of such part of his tract, as has been taken into possession by the defendant, and his costs.
    The defendant pleaded a general denial. He denies specially that he ever dispossessed the plaintiff of any part of his land'; and avers, he is the actual owner and possessor of the land claimed, and has been in the possession thereof for many years; possession of a part being possession of the whole. He prays to be dismissed with his costs.
    Upon these pleadings, the parties went to trial. Many witnesses were called, and testified on both sides, whose testimony was taken down in writing. But none of the testimony designated the precise amount or quantity of land, the possession of which was in contest. No diagram or survey of the disputed premises, was made. The cause was submitted to a jury, who found a general verdict for the plaintiff, and six and one-fourth cents in damages. Judgment was rendered on the verdict, “ that the plaintiff recover the land sued for,” and that he be quieted in the possession thereof, and recover six and one-fourth cents damages, and costs. The defendant appealed.
    Dunbar, for the plaintiff,
    explained the case, and insisted the verdict and judgment must stand, and that the plaintiff shall be put in possession of the contested premises.
    
      2. The evidence shows, that the plaintiff was in possession, more than a year preceding the disturbance, and that the defendant pulled down his fences, and took forcible possession of the disputed premises.
    
      Barry, for the defendant, contended,
    that the judgment in the case was entirely indefinite, and decided nothing between the parties. The case must therefore be remanded for a new trial.
    
      2. On the merits of the case, the defendant, is entitled to judgment, quieting him in the possession of the land, as he claims it.
    
      
      Boyce, on the same side,
    went into an argument, to show the true nature of possessory actions, and the principles upon which they rest. In this case he insisted, the judgment was so vague and uncertain, that it would be impossible for the sheriff to execute it, by putting the party in possession.
    
      2. The officer could not execute a writ of possession, without becoming the arbiter between the parties, which would lead to new disturbances, and end in additional law-suits.
    3. The pleadings are so loose and vague, and the evidence, as taken down by the clerk, so confused and uncertain, as to afford no guide for the execution of the judgment.
    4. In our system of jurisprudence, as well as by the common law, when the pleadings are loose and indefinite, so much so as to leave the matter in contest uncertain, the verdict and judgment cannot stand. Bacon’s Jib. verbo verdict.
    
    
      Thomas and Winn, for the plaintiff, in conclusion.
   Bullard J.,

delivered the opinion of the court.

This is a possessory action, in which judgment being rendered on a verdict against the defendant, he appealed. The appellant relies, principally for a reversal of the judgment, on the ground, that both the petition and judgment are so vague and uncertain, that ño writ of possession can be issued and enforced, without leaving to the clerk and the sheriff, a discretion’not given them by law-

The petition sets forth that the plaintiff has been in quiet possession as owner, for more than one year, of a tract of land, containing about four hundred and thirty-five arpents, having a' front of about ten arpents on the Bayou Robert, it .being the same formerly owned by Job Ruth. He states, that his possession of a part of the premises, within his clearing and actual cultivation, has been recently invaded by the defendant. He prays that he may be restored to his possession of so much of said premises as were in his possession, and has been forcibly taken by the defendant. The verdict was a general one in favor of tire plaintiff, and assessed his damages at six and a fourth cents; and the judgment pronounced thereon, was, “thatthe plaintiff have judgment against the defendant, for the possession of the land sued for, and that he be restored to, and quieted in the possession thereof.”

execution must pursue the .pdgThe writ of ment; imtrif die uncertain, itmay he rendered certain t>y reference t0

^rStfashÍriff, a copy of the copy“e“of the ^fersmustaccompany the that’ the officer m-iy n.ot Veims_ taken in the premises of whic1» he is to give possession,

111 a actíonj wíien ,t]ie Pre_ mises m contest are so vaguely pfladin^s ’“that any° certainty, and judgment are piain’tiffreVov'er possession of the sited for,” they will be set being aside t00 TO an<1 *ande¿nSfor re" new trial,

The contest appears to have related to a very small part of 11 j i. the land possessed by the plaintiff, so trifling indeed in extent, that without being cumulated with a demand for damagi could hardly form the object of an appeal to this court.

The general rule, that the writ of execution must pursue the judgment, will not be disputed. If the judgment be in be rendered certain, by itself, vague and uncertain, it may reference to the pleadings. 3 Martin, N. S. 7. In a case like this, the Code of Practice provides, articles 630 and 631, that the writ of possession shall be directed to the sheriff, with a copy of the judgment, and even a copy of the petition to which it refers, to the end that the sheriff may not be mistaken concerning the nature of the estate and appurtenances, The law, therefore, of which he is to give possession. ........., ___________ • 1 * . . ’ requires, at feast a reasonable certainty, and never intended that the rights of parties after a judgment pronounced, should depend, at least, upon the discretion of the sheriff. Sup-A . 1 . 1 pose in this case, the writ t.o issue, with a copy of the petition and a copy of the judgment. The sheriff, it appears to us would be greatly at a loss how to proceed. He would be compelled to apply for information to some body. Is he to summon witnesses, or address himself to the parties! In either case, the cause is to be tried over again by the officer sent to execute the judgment of the court. ‘

-it _ _ _ * » To this, it is answered, that the defendant ought to have excepted to the petition, as too vague and uncertain, and that he is precluded by the judgment, and that he has no right to complain that the judgment cannot be executed for uncertainty. That he might have declined answering to the merits, until the cause of action was more explicitly set forth, may be true, but it does not, in our opinion, follow, that, when that uncertainty is not cured, either by the verdict or the judgment, he is bound to submit without objection. Parries have a light to require their rights to be adjudicated upon in gucq1 a mannerj as that the judgment rendered, may be a bar to a future action for the same thing, and, as will not necessarily expose them to the exercise of an arbitrary discretion on the part of the officer chargéd with execution.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, be annulled and reversed, the verdict set aside, and the cause remanded for a new trial, and that the appellee pay the costs of the appeal.  