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third section of the foregoing statute it is provided, that when any person shall bring and offer a writ of habeas corpus to the officer or person, to whom the same. shall be directed, he shall receive the same; and upon payment or tender of such charges for bringing the complainant from the place of imprisonment, as the court or judge who grants the writ shall order, if the person complaining be confined in a common gaol, or under the custody of an officer, otherwise without such payment or tender, to the place mentioned in the writ, such officer or person shall have the body of the complainant before the court or judge awarding the writ at the place therein mentioned, within three days, if within twenty miles from the place of imprisonment; if more than twenty but within one hundred miles, then within ten days; if above one hundred miles, then within twenty days after the receipt thereof; and shall then return the same, and certify therein the true, and all the cause or causes, of the taking and detaining.

The court or judge are then directed by the fifth section of the statute, within three days after the person is brought before them, to proceed to examine the causes of the detention, and to admit him to bail or discharge him, according to the circumstances of the

case.

SECT. XIV. SUMMONS IN PROCESS AGAINST FORCIBLE ENTRY AND DETAINER.

The form of the writ and the proceedings against forcible entry and detainer are regulated by Stat. 1784. ch. 8.

The cases to which the proceedings are applicable, are where one makes an unlawful and forcible entry into lands or tenements, or having a lawful and peaceable entry, unlawfully and with force detains the same.

In either of the above cases, the second section of the statute provides that the party aggrieved shall file his complaint, setting forth the facts, before any two Justices of the Peace, quorum unus, who thereupon shall issue a warrant to the sheriff of the same county, commanding him" in the behalf of the commonwealth, to cause to come before them twelve good and lawful men of the same county, each one of whom having freehold lands or tenements of the yearly value of forty shillings; and they shall be empannelled to inquire into the forcible entry or forcible detainer complained of."

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The justices shall likewise make out their summons, the form of which is also given in the statute, to the party complained against, which must be served as any original summons against an individual, returnable before a justice of the peace; and if the defendant do not appear, the justices are required to proceed in the same manner as if he were present.

The statute then provides the oath which shall be administered to the jury and the form of their verdict. If the verdict be against the defendant, or party complained against, a writ of restitution is awarded, the form of which is also given in the statute; if otherwise, the defendant shall have his costs.

No appeal is allowed from the judgment of the justice, but the proceedings may be removed by certiorari into the Supreme Judicial Court holden in the same county.

By a proviso of the statute above cited, proceedings under it are limited, and no person can be proceeded against, who "hath had the occupation or been in the quiet possession of any lands and tenements by the space of three whole years together, next before, and whose estate therein is not ended and determined."

A mere refusal to deliver possession of land when demanded, is not a foundation for the institution of this process. The possession must be attended with such circumstances as would tend to excite terror in the owner, and prevent him from claiming or maintaining his rights.1

The Stat. 1825. ch. 89. providing further remedies for landlords and tenants in certain cases, where the possession is retained against the will of the landlord,2 seems to be sufficient to reach almost all the cases provided for by this statute.

SECT. XV. SUMMONS IN PROCESS FOR THE SPEEDY REMOVAL OF NUISANCES.

By Stat. 1801. ch. 16. a process is given for the abatement of nuisances similar to that which has just been considered against forcible entry and detainer. The complaint is to be made to the same persons. The form of the warrant to the sheriff,—of the summons to the defendant, and of the oath and verdict of the jury, are given in the statute, and are the same, with verbal exceptions only, as those mentioned in the pre

1 Commonwealth v. Dudley, 10 Mass. Rep. 403. And vide Commonwealth v. Bigelow, 3 Pick. Rep. 31.

2 Vide ante, Sect. XII. of this Chapter.

ceding section. The mode and time of service of the summons are precisely the same.

In this case, however, unlike the former, an appeal is given to the Supreme Judicial Court, which is regulated by the fourth and fifth sections of the statute.

SECT. XVI. SUMMONS IN PROCESS TO RECOVER DAMAGES FOR FLOWING LANDS.

By Stat. 1795. ch. 74. s. 2. a process somewhat similar to the two preceding ones, is given to a party to recover damages where his land has been flowed by a mill-dam.

The complaint in this case, however, must be made to the Court of Common Pleas, instead of to justices of the peace. The court then issues a warrant to the sheriff, or if he is interested, to a coroner of the county where the land lies, directing him to summon and empannel a jury of twelve good men who try the cause, and whose verdict is a bar to any action brought for such damages. The mode of drawing the jurors in this case is regulated by a subsequent statute.1

The three preceding processes are not strictly writs. They have been mentioned, however, as being modes of instituting suits, prescribed by statute in the particular cases, and analogous to that of commencing actions by writ in courts of law.

1 Stat. 1814. ch. 173.

Note. A writ of error is a judicial and not an original writ, Grosvenor v. Danforth, 16 Mass. Rep. 74. It is not therefore placed in the foregoing enumeration of writs by which a suit is commenced. It will, however, be considered in the second book.

CHAPTER VIII.

REQUISITES OF A WRIT.

SECT. I. THE DECLARATION WHICH A WRIT MUST

CONTAIN.

Though, as has been stated, the forms of writs, as prescribed by statute, must be used in all cases, where they apply, yet those forms are mere skeletons, without any sense, until they are filled up by a description of the parties, and of the cause of action; and this can be done only by inserting some count descriptive of the nature of the demand.

1

In all the forms of original writs used in our practice, the declaration must be inserted before the writ is issued for service; for it is intended by the statutes that the party whose goods are attached, or whose body is arrested, should at the time of the service of the writ, have notice of the nature of the demand against him. The declaration, therefore, must be complete, and form a part of the writ, at the commencement of the suit. A defect in this particular may be taken advantage of, by a plea in abatement, and the writ cannot be amended by inserting a declaration after service, without the consent of the defendant, and not then as against subsequent attaching creditors.2

In like manner, in all proceedings in equity, when

1 Isley et al. v. Stubbs, 5 Mass. Rep. 280. Brigham v. Este, 2 Pick. Rep. 420.

2 Ibid.

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