It is unnecessary to decide whether, in the proceedings on habeas corpus, the parties were in any proper sense the same as in the present action. See Commonwealth v. Briggs, 16 Pick. 203. At common law, a final judgment remanding the prisoner in proceedings on habeas corpus is not a bar to a subsequent application for another writ of habeas corpus. Ex parte Partington, 13 M. & W. 679. Cox v. Hakes, 15 App. Cas. 506,
The Pub. Sts. c. 185, § 26, provide that “ no person who has been discharged upon a habeas corpus shall be again imprisoned or restrained for the same cause, unless,” etc. Accordingly, it was held in McConologue’s case, 107 Mass. 154, 171, that “the judicial discharge of a prisoner upon habeas corpus conclusively settles that he was not liable to be held in custody upon the then existing state of facts.” This declaration is undoubtedly true in this Commonwealth, although by the decision of the Supreme Court of the United States in Tarble’s case, 13 Wall. 397, this court had no jurisdiction in McConologue’s case. But, from the nature of the proceedings, a judgment discharging a prisoner has a different effect upon subsequent proceedings from a judgment remanding a prisoner. The proceedings on habeas corpus are intended to be summary; the hearing is often had before a single justice, with no absolute right of exception or appeal; and out of regard for the liberty of the subject, it has been considered that a judgment against the prisoner on habeas corpus should not be considered as conclusive against him in future proceedings, whether all the material facts were presented at the previous hearings or not. It is not important now to determine whether it may nót be a matter of discretion in the court or justice to hear and determine a new application for a writ of habeas corpus, when it appears that the same state of facts con-tinues to exist as at former hearings, or whether the prisoner has in every case the right to have successive applications heard and determined on their merits, even if all the facts were presented at the previous hearings. It is sufficient for the present case, that a judgment on habeas corpus remanding the prisoner is not, *157as matter of law, a bar to subsequent proceedings of the same kind, founded on the same facts; and a fortiori such a judgment is not a bar to the present action. People v. Brady, 56 N. Y. 182. Ex parte Kaine, 3 Blatchf. C. C. 1. In re Perkins, 2 Cal. 424. In re Ring, 28 Cal. 247. Ex parte Alexander, 2 Am. Law Reg. 44. Church on Habeas Corpus, § 386.
Verdict set aside.