contention is based on the idea that the affidavit constitutes a part of the process, and as it did not set forth the probative facts constituting the alleged fraud, it was fatally defective on its face.

The question then is, whether the process has the sanction and authority of law; for it will be admitted, if there was no authority to arrest the defendant, he should be discharged. When the code declares that the prisoner in a habeas corpus proceeding shall be discharged in certain cases, when in custody under civil process, we shall give the prisoner the benefit of the equity of the statute by assuming that he shall be discharged in such cases. That is to say, when it shall appear on the return of the writ that the order or process was defective in some matter of substance required by law, rendering such process void, or that the process, though in proper form, had been issued in a case not allowed by law, or that the process is not authorized by any judgment or decree of any court, nor by any provision of law: Hill's Code, sec. 622, subds. 3, 4, 6. It is an elementary principle that where a court acquires jurisdiction over the subject-matter and the person, it becomes its right and duty to determine every question which may arise in the cause without interference from any other tribunal. Upon the facts as disclosed by this record, it cannot be disputed but that the court had full and complete jurisdiction, under the statute, of the subject-matter of the proceeding and of the person of the defendant, and was competent to correct any abuse of its process, or discharge the prisoner if it should satisfactorily appear there was no cause for the arrest.

The cause of action, the affidavit for a writ of arrest and the grounds thereof, the issuing of the writ, etc., were all matters not only within the jurisdiction of the court, but the process shows that it was issued in a case allowed by law and in the language of its provisions. Hence the case does not come within any of the subdivisions of section 622 of the habeas corpus provisions, unless it be subdivision 3 of that section, that the process was defective in some matter of substance required by law, rendering such process void. "When the return shows," says Mr. Hurd, "a detainer under legal process, the only proper points for examination are the existence, validity, and present legal force of the process": Hurd on Habeas Corpus, 332. Looking at this, what is the ground or defect of substance in the process, if the affidavit be a part of it, which renders it void? The counsel answers, the defect is

not stating the facts in what the fraud consists; that the affidavit only states in the language of the statute that the "defendant has been guilty of a fraud in contracting the debt," etc., instead of setting forth the facts constituting the fraud, or cause of arrest; in a word, that facts are not set forth, but conclusions of law. "But," says Mr. Hurd, "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": Id. 327.

Errors or irregularities which render proceedings voidable merely, the writ of habeas corpus cannot reach, but only such defects in substance as renders the process or judgment absolutely void. 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": Tidd's Practice, 434. "It is the technical term for every defect in practical proceedings, or the mode of conducting an action or defense, as distinguished from defects in pleadings. On the other hand, illegality is properly predictable 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": Id. 435; Hurd on Habeas Corpus, 333. The allegation of the affidavit is, in the language of the statute, declared to be a ground which authorizes the issuance of the writ of arrest. Was the substantive fact relied upon as stated a radical defect, or only, to say the most, an irregularity or error, within the meaning of the distinction taken, rendering the process only voidable? A process is not a nullity because it was issued imprudently, or in a manner not warranted by law. There must be a defect of substance, or the omission to allege something material, and without which the affidavit would be a nullity. Where the matter is itself insufficient, without reference to the manner of stating it, it goes to the substance, but where it goes to the manner of stating it, the defect is merely formal. The matter here alleged is fraud in contradicting the obligation, which by the express words of the statute is itself sufficient to authorize a writ of arrest, and the objection in not stating the facts in which the fraud consists goes only to the manner of stating it, and is not a defect of substance. This is even true as tested

by the stricter rules of pleading. "If the pleading," says Mr. Pomeroy, "should aver conclusions of law in place of fact, as claimed here, the resulting insufficiency and imperfection would pertain to form rather than substance, and the mode of correction would be by a motion, and not by a demurrer": Pomeroy on Remedies, sec. 549.

The elements of fact and law are so blended in the affidavit, taken as a whole, that no one can fail to understand the nature of the transaction and the ground of arrest, and in such case the rule is invariable that the pleading cannot be treated as a nullity, but that the party must avoid or correct it by motion: Bliss on Code Pleading, sec. 213. We do not mean to say that the facts relied upon must not be stated. No rule of pleading is better established than that facts must be stated, and not legal conclusions, and that fraud, when pleaded, must state the facts upon which the charge is based. The point that we make is, that it is no "such radical defect as renders the proceeding in which it occurs totally null and void, of no avail and effect whatever, and incapable of being made so." It is not an omission of some material matter; the fraud is alleged, and that is the substance of the ground of arrest, and sufficient to authorize the writ; but the fact that such material matter is defectively stated does not render the process void, because it is an error or irregularity which may be corrected on motion. in the court in which the action is pending, and not an illegality which renders the process void from the beginning. "There is a great difference," said Chief Justice De Grey, "between erroneous process and void process. The first stands valid and good until it be reversed; the latter is an absolute nullity from the beginning": Parsons v. Loyd, 3 Wils. 345. The writ of habeas corpus was not designed to operate as a writ of error or certiorari, and does not have their force and effect.

It was not intended to correct errors or irregularities which only have the effect to render proceedings voidable merely, but such only as render them absolutely void. That it is the proper remedy, and may be resorted to for relief from every illegal imprisonment, no one will deny, and for this salutary. purpose the doors of every court of justice invested with the power to issue the writ ought to stand wide open; but it cannot be used to subvert the law and usurp the power of appellate courts, or interfere and review the proceedings of other

courts.

Imprisonment under an order or process irregularly issued, which may be set aside, constitutes no ground for its issuance. "To put it to such use," said Sanderson, J., "would be to convert it into a writ of error, and confer upon every officer who has authority to issue the writ appellate jurisdiction over the orders and judgment of the highest tribunals in the land. County judges, though occupying an inferior position and exercising an inferior jurisdiction, would be, by such a rule, empowered to review and practically reverse the judgments and orders of the district courts, and of the supreme court itself, and also the federal courts exercising jurisdiction within the state. Establish that the judgments and orders of courts may be reviewed on habeas corpus upon the grounds of error, and appeals for the correction of errors may be dispensed with in all cases in which the arrest or imprisonment of persons is allowed. Every criminal action, every civil action in which an arrest is given, and every proceeding for contempt, could be brought to the supreme court by writs of habeas corpus. Not only that, but, as already suggested, inferior tribunals would be called upon to review the judgments of superior tribunals, and tribunals of equal grade to interfere and review each other's proceedings. Such a rule would render all judicial proceedings amorphous, and lead to the utmost confusion and disorder. It is well settled that habeas corpus can be put to no such use, and that its functions, where the party who has appealed to its aid is in custody under process, do not extend beyond the inquiry into the jurisdiction of the court by which it was issued, and the validity of its process upon its face": Ex parte McCullough, 35 Cal. 100; People v. Cassels, 5 Hill, 167. That the court had jurisdiction in which the action was pending, and out of which the writ of arrest was issued, and was competent to correct any error or abuse of its process, or to set it aside if erroneously issued, is an unanswerable return to a writ of habeas corpus. This result renders it unnecessary to examine other questions.

The judgment is error, and is reversed, and writ dismissed.

HABEAS CORPUS CANNOT BE USED TO REVIEW ERRORS OR IRREGULARITIES: Sennott's Case, 146 Mass. 489; 4 Am. St. Rep. 344, and cases collected in note 348; Ex parte Kitchen, 19 Nev. 178; State v. Neel, 48 Ark. 283; Ex parte Lehmkuhl, 72 Cal. 53.

UNDER WRIT OF HABEAS CORPUS, NOTHING WILL BE INQUIRED into but the validity of the process upon its face, and the jurisdiction of the court which issued it: State v. Neel, 48 Ark. 283.

CONSTITUTIONALITY OF ACT UNDER WHICH PARTY HAS BEEN CONVICTED may be inquired into on habeas corpus: Ex parte Rosenblatt, 19 Nev. 439; 3 Am. St. Rep. 901, and cases collected in note 903.

WRIT OF HABEAS CORPUS, AS KNOWN AND USED AT COMMON LAW, CANNOT BE ABROGATED, or its efficiency curtailed by legislative action: People ▼. Liscomb, 60 N. Y. 559; 19 Am. Rep. 211.

STEWART V. HUNTER.

[16 OREGON, 62.1

PLEADING AND PRACTICE. -TRIAL COURTS SHOULD NOT INSTRUCT JURIES BY READING TO THEM an opinion of the court in another case. If they desire to adopt such opinion as the law of the case, they should copy from it the portions that are applicable, and deliver them as their own opinion of the law. ESTRAYS.-ANIMAL ESCAPING FROM ITS OWNER AND WANDERING ABOUT is an estray, within the meaning of the Oregon statute upon that subject. But an animal turned upon a range by its owner, and permitted to run at large, is not an estray, although its owner is ignorant of its immediate whereabouts, so long as it does not wander from the range and become lost.

TAKING UP ESTRAY PROPER, PURSUANT TO LAW, AND CAUSING IT TO BE SOLD in order to reimburse the party for the reasonable expenses incurred, is not depriving the owner of his property "without due process of law," but is a preservation of it for his benefit.

ESTRAYS.-FACT THAT ANIMAL IS BRANDED FURNISHES EVIDENCE of its ownership, but is not constructive notice that it belongs to the party branding it, although the brand is recorded.

R. Eakin and Brother, for the appellant.

J. R. Crites and C. H. Finn, for the respondent.

THAYER, J. This appeal comes here from a judgment of the circuit court for the county of Union. The appellant commenced an action in that court against the respondent to recover the possession of a certain mare and colt alleged to be wrongfully detained by the respondent. The respondent claims to have taken up the animals under the statute of the state relating to estrays. A trial by jury was had in the circuit court, which resulted in a verdict for the respondent, upon which the judgment appealed from was entered.

The main question of law we are called upon to decide arises out of the instructions of the court to the jury. It was strongly contested in the circuit court as to whether the animals were estrays or not. It appears that the mare and colt were running upon the range in the vicinity of the respondent's residence, and seem to have gotten with his stock, which was