the two sisters made the agreement hereinbefore referred to,-the appellant to take one certificate, and support the father, and bear no part of the assessments already paid; the respondent to take the other certificate, and bear all the assessments on both certificates already paid; and each should release all claims or interest in the certificate taken by the other. This agreement was consented to by the father, the member, and the changes were made accordingly in the beneficiary under the certificates. The appellant has had the full benefit of this arrangement, had the full $2,000 under her certificate, and $300 under respondent's certificate (during the father's lifetime), and then sought by some influence over her father, who lived with her, and became infirm and blind before death, and through a change of the beneficiary under respondent's certificate, to take away from her sister the remaining $1,700 payable thereon. It seems to us a very proper case for the application of the principle of estoppel in aid of the principle that the respondent acquired a vested interest in the certificate held by her, which could not be devested by the father and member, acting under the influence of the appellant.

A correct conclusion was reached by the trial court, and the judg ment appealed from should be affirmed, with costs. All concur.

(57 App. Div. 140.)

PEOPLE ex rel. BUNGART v. WELLS, Sheriff.

(Supreme Court, Appellate Division, Second Department. January 11, 1901.) 1. HABEAS CORPUS-SUFFICIENT TRAVERSE OF RETURN.

A traverse, on information and belief, of the sheriff's return to a writ of habeas corpus, that he had custody by virtue of the commitment of a justice named, denied that it appeared from the evidence taken before the justice in the preliminary examination that the crime of arson alleged against the prisoner had been committed, and that there was sufficient cause to believe the prisoner guilty thereof, and that there was no sufficient evidence before the justice on the examination that the crime had been committed, or sufficient cause to believe the prisoner guilty thereof, and thus, in the language of Code Cr. Proc. § 207, providing when and how an accused is to be discharged, negatived the existence of the facts necessary to the magistrate's jurisdiction. Held, that the traverse was sufficient.

FACTS AL

2. SAME PRISONER COMMITTED ON PRELIMINARY EXAMINATION LEGED IN RETURN-CONCLUSIVENESS. Code Civ. Proc. § 2031, requires an examination into the facts alleged in the return to a writ of habeas corpus, and into the cause of the imprisonment or restraint, and a final order of discharge if no lawful cause for imprisonment be shown, "whether the same was upon a commitment or supposed criminal matter," etc. Section 2039 authorizes the prisoner, on the return, to deny any material allegation thereof, or make any allegation of fact showing the imprisonment unlawful, or that he is entitled to his discharge, and that thereupon the court must proceed summarily to hear the evidence pro and con, and to dispose of the prisoner as justice requires. Held, that in examining the proof of the facts alleged in a return, showing the commitment of the prisoner by a justice on a preliminary examination, the court is not precluded from going behind the return, and the commitment is not conclusive as to the legality of his confinement.

Appeal from special term, Kings county.

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Habeas corpus by the people, on the relation of Peter J. Bungart, against J. Sheridan Wells, as sheriff of Suffolk county. From an order of the special term dismissing the writ, and from an order overruling a demurrer to the sheriff's return and sustaining the demurrer to the traverse and answer to the return, relator appeals. Reversed, and prisoner discharged.

Argued before GOODRICH, P. J., and WOODWARD, HIRSCHBERG, and JENKS, JJ.

James Troy, for appellant.

Livingston Smith, for respondent.

JENKS, J. This case presents a question of right upon a writ of habeas corpus, which is well termed the greatest writ of the common law, because it assures and secures personal liberty by simple and direct process available to every citizen. Its place is above debate and dissension. Hume, who wrote hatred of Whiggism into history, wrote: "This law seems necessary for the protection of liberty in a mixed monarchy. As it has not place in any other form of government, this consideration alone may induce us to prefer our present constitution to all others." Junius, the friend of Wilkes, wrote of it to Lord Mansfield as "so fully considered as another Magna Charta of the kingdom." The Tory, Dr. Johnson, who wrote against Junius, said: "The duration of parliament, whether for seven years or for the life of the king, appears to me so immaterial that I would not give half a crown to turn the scale one way or the other. The habeas corpus is the single advantage which our government has over all other countries." And, quoting him, the Whig, Macaulay, who also accused Hume of being a partisan historian, said: "It is, indeed, not wonderful that the great law should be prized by all Englishmen, for it is a law which, not by circumlocution, but by direct operation, adds to the security and happiness of every inhabitant of the realm." And a later historian-Goldwin Smith-writes that among the five checks reckoned against absolutism the habeas corpus has a place with the control by parliament over legislation, its legislative authority, the liability of royal officers to suit and impeachment, and the trial by jury. The United Kingdom, vol. 1, p. 296. The value of the writ of habeas corpus, says Kent (lecture 24, p. *32), is that "personal liberty is not left to rest for its security upon general and abstract declarations of right." The courts are jealous to assert that this right cannot be emasculated or curtailed by legislation. They should be zealous to declare its inviolability from any attacks in their own fora that menace its sweep and its power. There is a principle underlying this case beyond its instance that warrants a plain pronouncement of the law.

This is an appeal from an order of the special term dismissing a writ of habeas corpus issued to the sheriff of Suffolk county to inquire into the cause of the imprisonment of Wright, and from the order and decision of said court overruling the demurrer of the relator to the return of said sheriff to the writ, and from the decision and order of said court, then made, sustaining the demurrer of the

said sheriff to the traverse and answer of said relator to said return. The petitioner showed that the cause or pretense of the imprisonment was a commitment directed to the said sheriff, and signed by Hawkins, a justice of the peace of Suffolk county, reciting that an order was by him made that Wright be held to answer at the next court at which a grand jury would be in attendance upon a charge of arson in the third degree, and commanding the sheriff to hold him in custody. A copy of the commitment was annexed, and the petitioner averred, on information and belief, that said commitment and imprisonment were unlawful, in that the said justice had no jurisdiction to hold said Wright to answer as aforesaid, or otherwise, or to make or issue said commitment, and that the same was illegal. The writ commanded the sheriff to have the body in court, with the time and cause of such imprisonment and detention; the district attorney was notified thereof, and that he would require at the hear ing the preliminary examination of the said Wright before Hawkins, justice. The sheriff returned that he had custody by virtue of a commitment of Hawkins, justice, and by virtue of a certified copy undertaking [sic] bail annexed. The relator demurred that the return was insufficient, and that the authority and true cause of the imprisonment of Wright were not set forth as required by subdivi sion 2, § 2026, Code Civ. Proc. The demurrer was overruled. Thereupon the relator traversed by denying that it did and does appear from the evidence taken before the said justice in the examination that the crime of arson in the third degree had been committed, and that there was and is sufficient cause to believe Wright guilty thereof; and in further traverse the relator alleged that there was "no sufficient evidence before said justice, on said examination, that said crime had been committed, or sufficient cause to believe the said Wright guilty thereof." The defendant then demurred to the traverse on the ground that it did not state facts sufficient to constitute a traverse, and the court thereupon made order that the said demurrer be sustained.

When the defendant is brought before the magistrate he is entitled to be informed of the charge, the depositions taken are to be read, the deponents may be examined, and other witnesses may be called. The testimony taken must be reduced to writing, and preserved. After hearing the proofs, if it appear that a crime has been committed, and there is sufficient cause to believe the defendant guilty, the magistrate must indorse on the depositions and statements, if any, an order, signed, to the following effect:

"It appearing to me by the within depositions (and statement, if any) that the crime therein mentioned (or any other crime according to the fact, stating generally the nature thereof) has been committed, and that there is sufficient cause to believe the within-named A. B. guilty thereof, I order that he be held to answer to the same."

Thus, such authority of a magistrate can only be exercised if it appear (1) that a crime has been committed, and (2) there is sufficient. cause to believe the defendant guilty upon the proofs. He has no arbitrary power. He is not, like the French king of old, free to issue a lettre de cachet. He is a magistrate who must act with jurisdic

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tion. And he has no jurisdiction until it be made to appear by evidence that a crime has been committed, and there is sufficient cause to warrant the belief that the defendant committed it. If his commitment is final in the sense that the proceedings preliminary cannot be scrutinized at all, here is absolute power vested in a committing magistrate that would wake envy in the shade of either Charles of England. The commitment returned in this case is the mittimus provided for by section 213 of the Code of Criminal Procedure. It was based upon an order authorized by section 208 thereof, which is described in section 213 as the order for commitment, which order could only be made when the magistrate had acquired jurisdiction. The mittimus is merely a protection and an authority to the sheriff, or a direction to him to convey the defendant into custody. People v. Baker, 89 N. Y. 460; Same v. Johnson, 110 N. Y. 134, 17 N. E. 684. And the defendant is detained by the sheriff because the magistrate has made the order provided for in section 208, whereby the commitment issues. It is said in the Baker Case that the warrant was merely a mittimus, and that a prisoner properly sentenced cannot be discharged on a mere defect therein, for a proper one could be supplied at any time. And so section 2035 of the Code provides that, if a commitment be irregular, the court must bail or remand. Section 2015 of the Code of Civil Procedure provides that a person imprisoned or restrained in his liberty within the state for any cause, or upon any pretense, is entitled, except in one of the cases specified in the next section, to a writ of habeas corpus, or a writ of certiorari, as prescribed in this article, for the purpose of inquiring into the cause of the imprisonment or restraint, and, in a case prescribed by law, of delivering him therefrom. Section 2039 provides:

"A prisoner produced upon the return of a writ of habeas corpus, may, under oath, deny any material allegation of the return, or make any allegation of fact, showing either that his imprisonment or detention is unlawful, or that he is entitled to his discharge."

The traverse, on information and belief, denies that it did or does appear from the evidence taken by and before the said justice on said examination that the crime of arson in the third degree had been committed, and that there was and is sufficient cause to believe that the said George S. Wright is guilty thereof, and that there was no sufficient evidence before said justice on said examination that the said alleged crime had been committed, or sufficient cause to believe the said Wright guilty thereof. This negatives, in the language of the statute (section 207, Code Cr. Proc.), the existence of facts that must be established before the magistrate acquired jurisdiction; and, in effect, asserts that the statute (section 207, Id.) applies. It alleges, in other words, that there were no facts that justified jurisdiction, for, of course, the magistrate must act upon the evidence; and if it did not appear from the evidence that the crime had been committed, and that there was sufficient cause therein for belief that the defendant was guilty, then the defendant was improperly held. An indictment in the language of the statute is good (People v. West, 106 N. Y. 293, 12 N. E. 610), and I see no reason for requiring such traverse in any other form. Indeed, it is difficult to see in what

other form this kind of traverse could be drawn unless it set forth all of the testimony taken on the examination, or, at least, summarized it, which would be pleading the very evidence which the court is asked by the writ to examine, and which would serve no purpose. Whatever criticism may be made upon the phrase "sufficient evidence," the defendant first denies that it did or does appear from the evidence taken by or before the said justice on said examination that the said alleged crime had been committed, and there was or is sufficient cause to believe Wright guilty thereof. In People v. New York Catholic Protectory, 106 N. Y. 604, 13 N. E. 435, the traverse was, in substance, that the defendant had done no act prohibited by the section of the Penal Code under which she was convicted, and the court, per Andrews, J., say, "It was not alleged in the traverse that there was no evidence before the justice of the facts adjudicated by him." The learned judge says that, while the traverse may show that the child was wrongfully charged, yet, he states, "it cannot be inferred that no evidence justifying the finding by the justice of that fact was not produced before him." I find here plain intimations that such traverse would have been sufficient. An issue of fact, says Church (Hab. Corp. § 170), may always be formed upon the return by a denial of its averments. In People v. Moss, 6 App. Div. 414, 417, 39 N. Y. Supp. 690, 692, the court, per Rumsey, J., say:

"Proceedings in these cases are not governed by the strict rules of pleading which are applicable to civil actions. They are summary in their nature, and the only requirement is that there shall be presented to the court or judge some facts or allegations in such a way that he may know that the allegations of the return are denied. The statute does not say that such denials or allegations must be by way of formal traverse, although, as matter of practice, they are made by a traverse to the return, but they may be made by affidavit, or they may even be made orally. The statute does not prescribe any manner in which the return shall be denied. The question was presented to the supreme court under the Revised Statutes, the provisions of which are substantially like those of the Code of Civil Procedure, and it was held that the denial might be made not only by traverse but by affidavit; and such a denial was received in the case of People v. Chegaray, 18 Wend. 637, 641, where the question was thoroughly discussed whether denials by affidavit might or might not be permitted. In that case Judge Bronson, delivering the opinion of the court, said that affidavits, not only of the relator, but of other people, would be received for the purpose of denying the return, and such affidavits were considered in disposing of the case."

In People ex rel. Danziger v. Protestant Episcopal House of Mercy of City of New York, 128 N. Y. 180, 28 N. E. 473, cited by the learned district attorney, the traverse was made in a case which dealt with a prisoner held by final judgment. And the court say that, if thereby it was intended to bring in question the sufficiency or competency of the evidence offered in support of the conviction, a writ of certiorari for review should have been obtained, which would have required a return of the evidence taken on the trial. In the case at bar the hearing is not upon a judgment of conviction. The cer tiorari referred to in the Danziger Case is that issued to review a judgment, not the statutory writ provided for in our habeas corpus act. Here I might rest if the issue were confined to the sufficiency of the traverse, but the authority of the court to go behind the re