where, in commitments for criminal or supposed criminal matters, the court or officer hearing the habeas corpus is invested with a revisory or corrective jurisdiction over the court or officer commanding the imprisonment, and with jurisdiction also over the offence or subject matter of the commitment, in which case the facts constituting the grounds of the commitment may be reviewed.

The jurisdic

2. Defects cognizable under the habeas corpus. tion over the process being only collaterally appellate, the habeas corpus, as before intimated, cannot have the force and operation of a writ of error or a certiorari; nor is it designed as a substitute for either. It does not, like them, deal with errors or irregularities which render a proceeding voidable only; but with those radical defects which render it absolutely void.

*Hale, in his Pleas of the Crown, 584, says that [333 the habeas corpus is in nature of a writ of right or of error to determine whether the imprisonment be good or erroneous. But in the case of Hammond v. Howell,' he expressed himself more accurately as follows: "A certiorari and an habeas corpus, whereby the body and proceedings are removed hither are in the nature of a writ of error."

A proceeding defective for irregularity and one void for illegality may be reversed upon error or certiorari; but it is the latter defect only which gives authority to discharge on habeas corpus.

An irregularity is defined to be the want of adherence to some prescribed rule or mode of proceeding; and it consists either in omitting to do something that is necessary for the due and orderly conducting of a suit, or doing it in an unreasonable time or improper manner:"" "It is the technical term for every defect in practical proceedings or the mode of conducting an action or defence as distinguishable from defects in pleadings.'

33 Chit. Gen. Pr. 509.

Illegality is, properly, predicable of radical defects only, and signifies that which is contrary to the principles of law, as distinguished from mere rules of procedure. It denotes a "complete defect in the proceedings."

It would be irregular to sentence a man to imprisonment in his absence, where the absence was occasioned by the order of the court pronouncing the sentence. It would be illegal to sentence him to imprisonment for a crime which was punishable by a pecuniary fine only." 334] *Wise rules of procedure established for the regulation of other judicial proceedings are not to be disregarded in that of habeas corpus, when they are applicable. One of these rules is that when a record or process is only collaterally brought into question, it cannot be invalidated for error or irregularity.'

It matters not how flagrant the error is. As where a defendant on trial for vagrancy, was not allowed to crossexamine the prosecuting witnesses, nor to produce witnesses in her own behalf, the court upon habeas corpus could not release the prisoner. And where a prisoner

1 Tidd's Pr. 435. In Ex parte Gibson, 31 Cal. 619, it was said: "An error which will render a judgment in a criminal case voidable only, is the want of adherence to some prescribed rule or mode of proceedure, in conducting the action or defence. An illegality which renders a judgment in a criminal case void is such an illegality as is contrary to the principles of law as distinguished from rules of procedure."

2 Petition of Crandall, 34 Wis. 177.

3 Ex parte Kellogg, 6 Verm. 509; Olmsted v. Hoyt, 4 Day, 436, 441; Pigot v. Davis, 3 Hawks. 25; Walbridge v. Hall, 3 Verm. 114; Cox v. White, 2 Mills Lou. Rep. 422; Keen v. McDonough, 8 Lou. (Curry), 185; Andrus v. Harman, 2 Mills Lou. Rep. 587; The People v. Cavanagh, 2 Park. Cr. R. 650; The People v. Nevins, 1 Hill, 154; Baker's case, 11 How. Pr. Rep. 418; Rex v. Carlisle, 4 Car. & P. 415; Clarke's case, 12 Cush. 320; Fleming v. Clark, 12 Allen, 191; In re O'Connor, 6 Wis. 288; Ex parte Gibson, 31 Cal. 621; Ex parte McCullough, 35 Cal. 98; Ex parte Murray, 43 Cal. 455; People v. McCormick, 4 Parker's C. R. 1; Williamson's case, 26 Penn. S. 9; State v. Towle, 42 N. II. 540; Wilson's case, 2 Casey (Pa.) 279; In re Blair, 4 Wis. 522; Matter of Eaton, 27 Mich. 1; Herrick v. Smith, 1 Gray, 1; In re Truman, 44 Mo. 181; In re Smith, 2 Nev. 338; Ex parte Winston, 9 Nev. 71.

4 Stewart's case, 1 Abbott Pr. Cas. 210.

was sentenced to the penitentiary, on conviction for horse-stealing, for one year, the law requiring a sentence. for such offence for a period not less than three years, the error was held to afford no ground for discharge on habeas corpus.'

Where, however, a justice of the peace having power to fine, or imprison for a limited time, adjudged the defendant to pay a fine and stand committed until paid, the judgment was held void. The imprisonment being indefinite, was beyond the jurisdiction of the justice.'

*And where the act under which the prisoner [335 was convicted, required the imprisonment to be for three months, and the commitment was, "until he should be discharged by due course of law," he was discharged by the Court of King's Bench. The court said he was

1 Ex parte Shaw, 7 O. S. Rep.; Ex parte Van Hagan, 25 O. S. 432. Where prisoner had been sentenced for ten years, when the statute provided that the imprisonment for the offence of which he had been convicted should not exceed five, and the prisoner had already served out four years of his term, he was discharged upon habeas corpus. Ex parte Page, 49 Mo. 291.

William M. Tweed was convicted, in the Court of Oyer and Terminer at New York in 1873, of malfeasance in office. The indictinent against him contained two hundred and twenty counts, and he was found guilty on fifty-five counts of as many distinct acts of misconduct. For the different offences of which Tweed had been found guilty, the judge before whom he was tried imposed separate sentences of fine and imprisonment. The terms of imprisonment for the different misdemeanors were each less than one year, but taken together, they amounted to twelve years. Proceedings were afterwards instituted to ob tain his release by habeas corpus, on the ground that the court had no jurisdiction to sentence him upon one indictment to any punishment exceeding a term of one year and a fine of $250. The court held that upon one indictment charging several offences no heavier sentence could be imposed than could have been imposed for a single offence, and discharged the prisoner.

Where a person was sentenced to imprisonment in the state prison for a term of one year, to commence upon the expiration of another term; and one year afterwards the first judgment and sentence were adjudged void; held, on habeas corpus, that the sentence either commenced to run immediately on rendition and had expired, or it was void for uncertainty, and in either case the prisoner was entitled to his discharge. Ex parte Roberts, 9 Nevada, 44.

Howard v. The People, 3 Mich. 207; Robinson v. Spearman, 3 Barn. & Cress. 493; Gurney v. Tufts, 37 Maine, 130.

committed in execution, and the exact time ought to be specified.'

1 The Queen v. Green, Fort. 274. Where a justice of the peace having power to compel witnesses to attend and testify, issued a warrant for the arrest of a witness, who had failed to attend before him when duly summoned, the warrant being issued after the case in which witness was summoned, had been finally determined, it was held that the imprisonment under such warrant was unlawful, and petitioner was discharged. Clarke's case, 12 Cush. 320. Where an appellate court imposes for an offense the penalty of fine and imprisonment, when the court appealed from had power only to punish by fine or imprisonment, and after the sentence the fine has been paid, the defendant will be discharged from the imprisonment. Feeley's case, 12 Cush. 598.

Where upon a conviction for gambling, the judgment imposing a fine of one hundred dollars, and ordering imprisonment until the fine was paid, was held to be irregular, because it failed to specify the term of the imprisonment, the writ was denied to the prisoner upon the ground that the statute had fixed the time of imprisonment to be ten days for each one hundred dollars, and that it did not appear that the prisoner had been in custody for ten days. People . Markham, 7 Cal. 208.

In Ex parte Gibson, 31 Cal. 628, it was held, that a prisoner convicted of murder in the first degree, the penalty fixed for which by statute was death, would not be entitled to his discharge on habeas corpus, where the sentence actually imposed was imprisonment in the penitentiary for ten years.

Where a prisoner had been convicted of a violation of an ordinance of a city, and applied for a habeas corpus, upon the ground that the municipality possessed no power to pass the ordinance, the writ was refused. Platt v. Harrison, 6 Iowa (Clarke), 79, the court said, "The petitioner has a perfect, weil defined, and complete remedy, in the regular and usual method of appeal. After a conviction by a court having jurisdiction, though the conviction may be irregular or erroneous the party is not entitled to the writ." But in California upon application for a writ of habeas corpus, on the ground that the prisoner had been convicted under an ordinance which the council had no power to pass, the court entertained jurisdiction to decide as to the power, but holding that the ordinance had been lawfully adopted denied the application. Ex parte Delaney, 43 Cal. 478; see also to same point Ex parte Burnett, 30 Ala. 461.

Where a writ was applied for, to a circuit judge of the United States, by a person imprisoned on a conviction and sentenced on an indictment by the Circuit Court, upon the allegation that the statute under which the sentence was imposed had been repealed before the sentence was passed, the application was denied. In re Callicot, 8 Blatchford, 89. In the same case it was also held, where it appears that the person on whom such sentence was imposed had been pardoned unconditionally, and has had notice of the pardon, and is not restrained of his liberty, a writ of habeas corpus will not be granted to him, on such allegation, even though it does not appear that he has accepted the pardon.

3. Limitations resulting from the superior rights of other acting judicial tribunals. It is a rule essential to the efficient administration of justice, that where a court is vested

Where an application was made for a habeas corpus by a person under indictment for murder, upon the ground, that a former conviction was a bar to all further proceedings, the writ was refused. People v. Ruloff, 3 Parker C. R. 128.

The writ was denied, where the prisoner under sentence after conviction, sought release upon the ground that he had been tried by a jury improperly summoned. Ex parte Tracy, 25 Vermont, 93.

Where by reason of not having been brought to trial at the time fixed by the statute, a prisoner was entitled to a final discharge which had been erroneously denied him by an inferior court, by whose order he had been remanded to jail, a writ of habeas corpus was denied, as long as such order remained unreversed. Ex parte James McGeehan, 22 O. S. 442.

Where the statute required that the sentence should be in the alternative, and its provisions were disregarded, and there was no alternative sentence whatever, the prisoner confined under such erroneous sentence was refused the writ. State v. Shattuck, 45 N. H. 210.

It is not a sufficient cause for discharge on habeas corpus that the prisoner was not present in court when the trial of the indictment was postponed till the next term of the court, though it was the right of the prisoner to be present. People v. Ruloff, 5 Parker C. R. 77. In the course of the opinion in that case it is said, “The question was asked on the hearing; 'Suppose a person is indicted for the murder of A. B. and committed, and subsequently A. B. is produced alive, may not that person, on habeas corpus, on producing A. B. alive before the officer, be acquitted and discharged of the offence as on a trial?' I answer no. A trial in court and an acquittal by a jury, or the entering of a nolle prosequi by the district attorney in which the indictment is pending, are the only methods by which the prisoner can be fully discharged."

Where a person had been imprisoned for neglecting to pay money in obedience to a decree of the court, without having first been adjudged in contempt, the confinement was held to be unlawful, there being a constitutional provision, prohibiting imprisonment for debt, and the prisoner was discharged upon habeas corpus. In re Blair, 4 Wis. 522.

It is not sufficient to entitle a prisoner to a discharge upon habeas corpus, that a justice of the peace who issued the writ for his arrest, declined to examine him. When he offered himself to be examined under a statute, which required such examination as a method of determining whether the prisoner was rightfully under arrest. In re Hosley, 22 Vt. 364. The court expressed the opinion that the conduct of the officer, and refusing the writ of habeas corpus, said that the only effectual remedy in such case would seem to be a mandamus, commanding the justice to proceed in the matter.

In Adams v. Vose, 1 Gray, 51, where a sheriff on execution, sold spirituous liquors, without license, and was sentenced to pay a fine by a justice of the peace and committed, held he could not be discharged on habeas corpus.