| Vt. | Feb 15, 1880
The opinion of the court was delivered by
This case comes here upon the defendant’s motion to dismiss the writ for the reason that it was issued and served as a capias. The action is predicated upon section 22, c. 46, Gen. Sts., which provides .a summary remedy for landlords against their tenants who hold over “ without right ” after the determination of their lease. Section 23 provides that the writ may issue as a writ of attachment or summons in civil actions before justices of the peace ; and, if judgment be rendered for the plaintiff, a later section awards the plaintiff a writ of possession “ in the form prescribed by law.” It. was held in Hadley v. Havens, 24 Vt. 520" date_filed="1852-04-15" court="Vt." case_name="Hadley v. Havens">24 Vt. 520, that the action given by this statute lies in those cases where the common-law action of ejectment would lie, and this construction has been followed in later decisions. It is not a proceeding to recover rent, although as an incident such recovery may be had, but is given for the “ wrongful holding over” of the demised premises, and thus has all the characteristics of the action of ejectment. It was held in a case in Windham County on the present circuit, Hart v. Jamaica, that the writ in an action of ejectment might properly issue as a capias. The writ of possession given in this case runs against the body. In view of the nature of the remedy, the relief sought, and the language of the statute, we think .the writ properly issued as a capias.
Judgment affirmed.