and in the same county by a jury, upon the information and at the expense of the defendant.

The form of the writ of capias in withernam is prescribed in the same statute.

By the sixth section it is provided, that in any stage of the proceedings upon process pursuant to this act, any person shall be permitted to appear for the plaintiff, who will stipulate, as the court shall direct, for the payment of all costs and damages that may be awarded against the plaintiff, although he can produce no special power for that purpose.

SECT. XI. AUDITA QUERELA.

An audita querela is a writ to be delivered against an unjust judgment or execution, by setting them aside for some injustice of the party that obtained them, which could not be pleaded in bar to the action; for if it could be pleaded, it was the party's own fault, not to have so done, and therefore, in such case he shall not be relieved, that proceedings may not be endless. Thus, where after a judgment, a rerelease is given, and yet execution is taken out,—or where a man satisfies a judgment, and afterwards is taken in execution, or in general, where legal process is abused and injuriously employed to effect the purposes of fraud or oppression, this writ may be used.2

1

This writ is now seldom resorted to, as the indulg

1 Bac. Abr. Tit. Audita Querela. 2 Sell. Pract. 253. 2 Saund, 148. a.

2

Lovejoy v. Webber, 10 Mass. Rep. 101. Little v. Newburyport Bank, 14 Mass. Rep. 443. Brackett v. Winslow et al. 17 Mass. Rep. 153.

ence of the courts will generally grant more summary relief upon motion.1

Forms. The Stat. 1780. ch. 47. prescribes two forms of this writ, one in sect. 7, as an original summons, and the other in sect. 4, with a few verbal differences merely, as a capias and attachment. And the plaintiff may use either at his election, that is, he may either summon the defendant, or arrest his body, or attach his property. And by sect. 5, if he take the body, the defendant may give bail, and if he attach property, it will be holden to satisfy the execution, in the same manner as under the ordinary capias and capias and attachment.

From what Courts the writ issues. By sect. 1, of this statute, it is provided that when this writ is brought to set aside or annul any proceedings had upon a writ of execution, it shall issue from and be returnable to the court, to which the said execution is returnable, but in all other cases, it shall issue from and be returnable to the Court of Common Pleas, in the county where one of the parties is an inhabitant or resident, and when the complainant is not an inhabitant of the commonwealth in any county.

SECT. XII. EJECTMENT BY LANDLORD AGAINST TENANT.

By Stat. 1825. ch. 89. "providing further remedies for landlords and tenants," it is enacted that "where the tenant or occupant of any house or tenement, shall hold such house or tenement without right and after no

12 Sell. Prac. 253. 1 Arch. Prac. 201.

tice in writing to quit the same; whosoever has the right of possession thereof, may summon such tenant or occupant to answer to his complaint before the Justices' Court of the county of Suffolk, if such house or tenement be within the county of Suffolk, and before any justice of the peace for any other county wherein such house or tenement may be."

The form of the summons is given by the same statute. This summons must be served in the same manner as any original summons, returnable before a justice of the peace. If the judgment be for the complainant, either by default or after trial, he shall have a writ of facias habere possessionem, and his costs; but if he fail to sustain his complaint, the defendant shall have judgment for his costs.

An appeal lies from the judgment, to the next Court of Common Pleas, holden in the same county, in the same manner as in other cases tried before justices of the peace.

This statute was apparently intended to give a plain mode of relief, by which tenancies at will and at sufferance might be determined, and the possession of the estate restored to the owner. It evidently includes by the terms "tenant or occupant without right,” all the cases provided for by the Stat. 1784. ch. 8. mentioned in a subsequent section,' where the unlawful possession is of a house or tenement, and in these cases the remedy for the owner under the statute of 1825, is more simple, and less expensive.

1 Sect. XIV. posi.

SECT. XIII. HABEAS CORPUS.

"that

The constitution of Massachusetts provides1 the privilege and benefit of the writ of habeas corpus shall be enjoyed in this Commonwealth, in the most free, easy, cheap, expeditious and ample manner; and shall not be suspended by the legislature except upon the most urgent and pressing occasions, and for a limited time, not exceeding twelve months."

Persons entitled. By Stat. 1784. ch. 72. any person imprisoned in any common gaol, or otherwise restrained of his personal liberty, by any officer or by any other person, for any cause or upon any pretence whatever, except he be committed for treason or felony, or for suspicion thereof, or as accessary to the latter before the fact, plainly and specially expressed in the warrant of commitment, or be convicted or in execution by legal process, criminal or civil, or be committed on mesne process in any civil action for want of reasonable bail, or unless he be a person with regard to whom the benefit of the writ has been suspended by the legislature, agreeable to the constitution, is entitled to a writ of habeas corpus.

By Stat. 1814. ch. 136. if any minor within this commonwealth enlist in the army of the United States, without the written consent of his parent, guardian and master, either of the justices of the Supreme Judicial Court, or of the Court of Common Pleas, are authorized and required on application therefor, to award a writ of habeas corpus returnable forthwith, directed to the officer or person restraining such minor, and

1 Chap. VI. Art. 7.

after a full hearing of the parties who shall appear, to discharge such minor so enlisted.

1

Mode of proceeding. The person confined or some person in his behalf must complain in writing to the Supreme Judicial Court, in any county or to any single judge thereof, in term time, or to any one or more of the judges thereof in vacation, and upon such complaint, and upon view of the copy of the warrant, if any there be, by which such person stands committed, or upon his affidavit certified by a justice of the peace, or on the oath of the person applying in his behalf, or any other credible witness, or upon the affidavit of such witness certified as aforesaid, if he lives more than twenty miles from the court or judge applied to, that a copy of such warrant has been demanded and denied, the said court or single judge thereof, in term time, and the said judge in vacation, are respectively authorized and required to award a writ of habeas corpus, directed to the officer or person imprisoning or restraining the complainant, returnable forthwith to such court or judge who awarded the same.

Form. The second section of the statute prescribes the form of the writ, and directs, that when awarded by the said court, the writ shall be signed by the clerk, tested by the first justice who is not party thereto, and sealed with the seal thereof; but that when awarded by any judge in vacation, it shall only be under the hand and seal of such judge, and shall direct the place to which the complainant shall be brought.

Service and return. No special service of the writ is required to be made by any officer, but by the

1 Stat. 1808. ch. 80.

2 Ibid.