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complaint of appellant alleges: "That on or about the 4th day of June, 1906, at the city of Reno, Washoe county, Nev., the plaintiff and defendant entered into an agreement, whereby the plaintiff agreed to furnish the labor and material and make certain alterations and repairs upon the premises of the defendant known as 'No. 144 Sierra Street,' lot 7, block 5, city of Reno, Washoe county, state of Nevada, and the defendant agreed to pay the plaintiff therefor the prices as set forth in the plaintiff's statement and claim of lien, amounting to the sum of $221.93, a copy of which statement and claim of lien is hereto attached, marked 'Exhibit A,' and made part of this complaint"-and further avers that all of said work and material were furnished in accordance with the ternis thereof. Respondent denies the material allegations of the complaint, and avers that the work agreed upon in said contract was to be for no greater sum than $190, specially denies that respondent fully performed the conditions of the contract entered into between them, and in the way of a further and separate and distinct defense to said action sets forth: "That *** plaintiff commenced the work of painting and repairing the said house and fence. but that the said work was done in a careless and negligent manner so as to be of little or no benefit to the said dwelling house and fence; that plaintiff painted portions of the said house with two coats of paint, and other portions of the house with only one coat of paint; and that the said house and fence still remain incomplete." The terms and conditions required to be set forth in the lien therefore become of vital importance.

The lien in question contains the following item: "Outside work on house and painting of inside blinds, $190," by which it is attempted to set forth in the said lien terms and the conditions or things to be done for the money agreed upon in the contract on which this lien is based and asked to be foreclosed. A statutory lien can only legally exist when it is perfected in the manner prescribed by the statute creating it, and, being a statute of a remedial nature, we believe should be liberally construed, and that a substantial compliance with the law is sufficient to create a valid lien. Skyrme v. Occidental M. & M. Co., 8 Nev. 221; Hunter v. Truckee Lodge, 14 Nev. 28; Lonkey v. Wells, 16 Nev. 274; Maynard v. Ivey, 21 Nev. 245, 29 Pac. 1090. There are, however, certain plain requirements prescribed by the statute which are legally essential to the validity of every lien and without which it cannot exist or be enforced. As is well stated by Phil. Mech. Liens, § 9, a lien is "a remedy given by law which secures the preference provided for, but which does not exist, however equitable the claim may be, unless the party brings himself within the provisions of the statute, and shows a sub

stantial compliance with all its essential requirements." As stated in the case of Malter v. Falcon Mining Co., 18 Nev. 213, 2 Pac. 51, "whatever is made necessary to the existence of the lien must be performed, or the attempt to create it will be futile. A substantial adherence to the terms of the statute in the notice of the lien is indispensable. The omissions, if any, in the notice and claim as recorded, cannot, in essential particulars, be aided by any averments in the complaint or by extrinsic evidence." Bertheolet v. Parker, 43 Wis. 551; Santa Monica L. & M. Co. v. Hege, 119 Cal. 379, 51 Pac. 555; Malone v. Big Flat, etc., Co., 76 Cal. 578, 18 Pac. 772; Reed v. Norton, 90 Cal. 590, 26 Pac. 767, 27 Pac. 426; Wagner v. Hansen, 103 Cal. 104, 37 Pac. 195.

The object of a lien, in addition to notifying the owner of what is claimed and securing the lienor's rights, is to apprise prospective purchasers, or persons who might desire to become interested in the property, of the nature of the claim against the property, and under what conditions, if they acquire the property, they must assume the same. Our statute provides, among other things, that a lien must contain a statement of the terms, time given and conditions of the contract." Section 3885, Comp. Laws. No one can definitely say from the vague statement in the lien purporting to set forth the conditions of the contract upon which this lien is based whether or not the house was to receive one, two, or three coats of paint, or whether the "outside work on the house" called for the shingling of the roof, the construction of an additional porch. or the building or repairing of a fence or walk around the premises, and would not be sufficiently explicit to a prospective purchaser of the property, or to any one who might desire to become interested in the same, whefher, if he assumed the lien, he would secure the value called for by the contract upon which the lien was based. Wherever an express contract is entered into, as was the case in the present action, the terms and conditions of such contract should be substantially set out in the lien filed sufficiently clear to inform any reasonable person of what work was intended to be performed or material furnished as originally agreed on between the parties.

The vague statement in the lien heretofore quoted, attempting to state the terms and conditions of the contract, does not substantially comply with this essential provision of the statute, and thereby renders the lien void. Nothing in this judgment shall be construed as affecting the rights of the parties, except in so far as it relates to the validity of the lien.

The judgment of the lower court is affirmed.

TALBOT, C. J., and NORCROSS, J., con


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On conviction of a felony, the sentence imposed was within the discretion vested in the district court as to the amount of the fine and the time of alternative imprisonment in the event the fine was not paid, and was erroneous only in that it declared that such alternative imprisonment should be in the state prison, whereas, under the express provisions of Comp. Laws, 2267, it should have declared that the same should be in the county jail. Held, in habeas corpus proceedings, that such direction as to the place of imprisonment might be rejected as surplusage, and did not vitiate the entire sentence.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 3320, 2528, 3318.]

Application by S. Tani for a writ of habeas corpus against the warden of the state prison. Denied, and the warden of the state prison directed to deliver petitioner to the sheriff of Washoe county, to be by him detained in the county jail for the remainder of the term of imprisonment imposed by his sentence, unless the part of the fine remaining unsatisfied be sooner paid.

Benj. Curler, for petitioner. R. C. Stoddard, Atty. Gen., for the State.

TALBOT. C. J. Defendant was indicted for the crime of assault with intent to kill. He entered a plea of guilty of assault with a deadly weapon with intent to inflict upon the person of another a bodily injury, where no considerable provocation appears, and the sentence of the court was that he be fined $1,000, and, in the event the fine be not paid, that he be imprisoned in the state prison for a period of 500 days, or one day for each and every $2 of the fine not satisfied. No payment being made, he was committed to the custody of the warden of the state prison, and now asks to be released by writ of habeas corpus, asserting that the district court was without jurisdiction to confine him in that institution, and that therefore the sentence is void.

Section 4701 of the Compiled Laws of Nevada provides: "An assault with a deadly weapon, instrument, or other thing, with an intent to inflict upon the person of another a bodily injury, where no considerable provocation appears, or where the circumstances of the assault show an abandoned and malignant heart, shall subject the offender to imprisonment in the state prison not less than one year, or exceeding two years, or to a fine not less than one thousand nor exceeding five thousand dollars, or to both such fine and imprisonment." Section 3988: "A felony is a public offense punishable with death, or by imprisonment in the territorial prison." Section 4413: "A judgment that the defendant pay a fine may also direct that he be imprisoned until the fine be satisfied, specifying the extent of the imprisonment, which shall not

exceed one day for every two dollars of the fine, or in that proportion." Section 4418: "If the judgment be imprisonment, or a fine and imprisonment until it be satisfied, the defendant shall forthwith be committed to the custody of the proper officer, and by him detained until the judgment be complied with." Section 4646: "If the fine be not paid the court may order the defendant to be imprisoned one day for each two dollars of the fine not paid." Section 2267: "Whenever any prisoner, under conviction for any criminal offense, shall be confined in jail for any inability to pay any fine, forfeiture, or costs, or to procure sureties, the district court, upon satisfactory evidence of such inability, may, in lieu thereof, confine such person in the county jail, at the rate of two dollars per day, until the fine, forfeiture, or cost so Section imposed shall have been satisfied."

3761 provides that it shall be the duty of the judge hearing the writ of habeas corpus, "if the time during which such party may be legally detained in custody has not expired, to remand such party, if it shall appear that he is detained in custody by virtue of the final judgment or decree of any competent court of criminal jurisdiction, or of any process issued upon such judgment or decree, or in cases of contempt of court"; and section 3762 that: "If it appears on the return of the writ of habeas corpus that the prisoner is in custody by virtue of process from any court of this territory, or judge or officer thereof, such prisoner may be discharged, in any one of the following cases, subject to the restrictions of the last preceding section: First-When the jurisdiction of such court or officer has been exceeded. Second-When the imprisonment was at first lawful, yet by some act, omission, or event, which has taken place afterwards, the party has become entitled to be discharged. Third-When the process is defective in some matter of substance required by law, rendering such process void. Fourth-When the process, though proper in form, has been issued in a case not allowed by law. Fifth-When the person having the custody of the prisoner is not the person allowed by law to detain him. Sixth -Where the process is not authorized by any judgment, order, or decree of any court, nor by any provision of law."

On behalf of petitioner, it is urged that under section 2267 the district court was without jurisdiction to order the defendant imprisoned in any place other than the county jail, and that the direction in the judgment that he be confined in the state prison, in lieu of payment of the fine, was unauthorized and rendered the whole judgment void. Of the cases relied upon by him the first four following support this contention: In Ex parte Page, 49 Mo. 291, the sentence of 10 years for grand larceny was excessive, and it was held that the court had no power to reduce the term of imprisonment so as to bring it within the statutory limit, and the

prisoner was discharged. In Ex parte Cox, 32 Pac. 197, 3 Idaho (Hasb.) 530, 95 Am. St. Rep. 29, an Idaho case, defendant was convicted of an assault with a deadly weapon likely to produce great bodily harm, and sentenced to confinement in the state prison for the term of five years, when the statutory penalty was imprisonment not exceeding two years, or a fine of $5,000, or both. The judgment was declared void, and the petltioner released. In Ex parte Kelly, 65 Cal. 154, 3 Pac. 673, it was held that the portion of the judgment requiring the performance of labor on the streets was not authorized. that the judgment was a unit, and that this portion of it, being without the jurisdiction of the court, made the whole void. Ex parte Bernert, 62 Cal. 524, is of similar effect.

But the views of the courts regarding the proposition involved are as numerous and varied as the different liquors from the magician's bottle. The most of the decisions, and especially those more in consonance with reason and justice, are averse to the discharge of criminals who have been duly convicted when the application for their release is by petition for habeas corpus based on some error, omission, or mistake in the sentence which might have been cured or corrected by writ of error or appeal. As we shall see, the Supreme Court of California has not always been consistent in its opinions, and the doctrine advanced by the foregoing cases has been severely criticised by the Supreme Courts of the United States, of Pennsylvania, and Massachusetts, and is contrary to the weight of authority.

In Ex parte Max, 44 Cal. 580, it was said: "The application for the writ of habeas corpus made here proceeds upon the ground that the judgment, under the circumstances appearing, is not merely erroneous, but is void in the absolute sense, and so affords no authority to the warden of the prison to detain the petitioner. We are of opinion, however, that the position cannot be maintained. The indictment upon which the judgment is founded is sufficient in all respects. The offense of which the petitioner was convicted was one within the scope of the indictment, and the judgment one which the county court had the authority to render upon the appearance and plea of the petitioner. These conditions constitute jurisdiction. All others involve questions of mere error, and the latter cannot be inquired into upon writ of habeas corpus, but only upon proceedings in error. The obvious distinction between the office of a writ of error or an appeal, on the one hand, and a writ of habeas corpus upon the other, was not presented, but was overlooked in Ex parte Ah Cha et al., 40 Cal. 426, which was a writ of habeas corpus heard and determined at chambers, and that case must in that respect be overruled."

In Ex parte Mooney, 26 W. Va. 36, 53 Am. Rep. 59, it was held that, where the court has jurisdiction of the subject-matter and of

the person, and pronounces a severable judg ment or sentence, one part of which is authorized by law, and another distinct part which is not authorized, the prisoner will not be discharged on habeas corpus, when it does not appear that he has undergone the full punishment imposed by the legal portion of the sentence. It was said that, as to that part which the court had the power to pronounce, the sentence was valid upon proceeding for habeas corpus; that errors which rendered the judgment merely voidable and not absolutely void could not be inquired into under such a writ (citing In re Prime, 1 Barb. [N. Y.] 340; State v. Shattuck, 45 N. H. 211; Ross' Case, 2 Pick. 171; Ex parte Watkins, 3 Pet. [U. S.] 201, 7 L. Ed. 650), and that, if the judgment is in excess of that which the court rendering it by law had the power to pronounce, such judgment is void for the excess only (citing Brook's Case, 4 Leigh [Va.] 669; Murry's Case, 5 Leigh [Va.] 724; Hall's Case, 6 Leigh [Va.] 615, 29 Am. Dec. 236; People v. Liscomb, 60 N. Y. 560, 19 Am. Rep. 211; Feeley's Case, 12 Cush. [Mass.] 598; Ex parte Shaw, 7 Ohio St. 81, 70 Am. Dec. 55; People v. Markham, 7 Cal. 208; People v. Baker, 89 N. Y. 467). At page 43 of 26 W. Va., in regard to the Missouri case (Ex parte Page) relied upon here by petitioner and cited above, it was said: "But, if that case could be regarded as decided upon principle, it must be disapproved, since it is not only contrary to the general rules hereinbefore stated, but it is in positive conflict with numerous other and seemingly better considered decisions of courts of other states. In re Petty, 22 Kan. 277; Ex parte Parks, 93 U. S. 18, 23 L. Ed. 787; People v. Jacobs, 66 N. Y. 9; People v. Liscomb, 60 N. Y. 559, 19 Am. Rep. 211; People v. Baker, 89 N. Y. 460."

In People v. Cavanagh, 2 Parker, Cr. R. (N. Y.) 662, release was sought from an erroneous sentence and imprisonment. It was held that there was no force in the point raised that the defendant should have been sentenced to the penitentiary and not to the county jail; that, if it were error to designate the county jail as the place of confinement, it could not be reviewed and corrected in a habeas corpus proceeding, and was no ground for his discharge.

In Ex parte Bond, 9 S. C. 80, 30 Am. Rep. 20, the prisoner had been convicted of an assault with intent to kill, and sentenced to. confinement at hard labor in the penitentiary. The court held that the offense was not punishable by imprisonment in the state penitentiary; that the sentence was therefore erroneous, but not void, and refused to discharge the petitioner on habeas corpus.

In People v. Kelly, 97 N. Y. 212, upon a conviction for assault in the third degree, the sentence was to imprisonment at hard labor in the state prison for one year. The Court of Appeals held that the offense was a misdemeanor, that the sentence was ex

cessive upon a valid conviction, but refused to discharge the prisoner and remanded him to the sheriff to be further dealt with by the trial court.

In Re Graham, 74 Wis. 451, 43 N. W. 148, 17 Am. St. Rep. 174, it was held that a judg ment sentencing a person to imprisonment for a longer term than the statute authorizes is merely erroneous, and not void for want of jurisdiction. The court proceeded: "We deny the writs, for the reason that the error in the judgments does not render them void, or the imprisonment under them illegal, in that sense which entitles them to be discharged on a writ of habeas corpus. The judgments are doubtless erroneous, and would be reversed on writ of error. Fitzgerald v. State, 4 Wis. 395; Haney v. State, 5 Wis. 529; Benedict v. State, 12 Wis. 314; Peglow v. State, 12 Wis. 534. But the judgments are not void. State ex rel. Welch v. Sloan, 65 Wis. 647, 27 N. W. 616. The court had jurisdiction of the persons and subject-matter or offense, but made a mistake in the judgment. For mere error, no matter how flagrant, the remedy is not by habeas corpus. The law is well settled in this court that on habeas corpus only jurisdictional defects are inquired into. The writ dees, not raise questions of errors in law or irregularities in the proceedings. In re Crandall, 34 Wis. 177; In re Pierce, 44 Wis. 444."

In Ex parte Van Hagan, 25 Ohio St. 432, sentence had been pronounced under a statute which had been repealed. The Supreme Court of Ohio stated: "The punishment inflicted by the sentence, in excess of that prescribed by the law in force, was erroneous and voidable, but not absolutely void. It follows that a writ of error to reverse the proceedings or sentence is the remedy that the relator should have resorted to in order to obtain a discharge from illegal imprisonment, and not habeas corpus, which is not the proper mode of redress where the relator was convicted of a criminal offense and erroneously sentenced to excessive imprisonment therefor by a court of competent jurisdiction. Ex parte Stephen M. Shaw, 7 Ohio St. 81, 70 Am. Dec. 55, approved and followed on this point."

In Sennot's Case. 146 Mass. 489, 16 N. E. 448, 4 Am. St. Rep. 344, it was claimed that the commitment of a juvenile offender to the state board to be sent to the Lyman School, was not authorized and was not the proper place. The Supreme Court of Massachusetts said: "If there was in the sentence or the prior proceedings any irregularity affecting the validity of the judgment, it can be corrected upon a writ of error. But neither irregularities nor errors, so far as they were within the jurisdiction of the court, can be inquired into upon a writ of habeas corpus. Clarke's Case, 12 Cush. (Mass.) 320; Herrick v. Smith, 1 Gray (Mass.) 1. 50, 61 Am. Dec. 381; Adams v. Vose, 1 Gray (Mass.) 51; Ex parte Watkins, 3 Pet.

(U. S.) 193, 7 L. Ed. 650; Ex parte Siebold, 100 U. S. 371, 373, 25 L. Ed. 717; In re Underwood, 30 Mich. 502; Platt v. Harrison, 6 Iowa. 79, 71 Am. Dec. 389. That a writ of habeas corpus cannot perform the functions of a writ of error, in relation to proceedings of a court within its jurisdiction, is universally agreed. The only conflict of authority touching the subject is in regard to what acts are open to inquiry upon the question of jurisdiction. It is held in this state, and by good authorities elsewhere, that the constitutionality of a law which a court is attempting to apply lies at the foundation of the jurisdiction under it, and may be called in question upon habeas corpus. Herrick v. Smith, 1 Gray (Mass.) 1, 49, 61 Am. Dec. 381; Ex parte Siebold, 100 U. S. 371, 25 L. Ed. 717; People v. Roff, 3 Parker, Cr. R. 216. But this doctrine has been contradicted, and action founded upon an unconstitutional law has been held a mistake which can only be corrected upon a writ of error. Harris, 47 Mo. 164. So there has been diversity of opinion among different courts as to sentences which are not authorized by law. The better rule seems to be that where a court has jurisdiction of the person, and of the offense, the imposition by mistake of a sentence in excess of what the law permits is within the jurisdiction, and does not render the sentence void, but only voidable by proceedings upon a writ of error. Ross' Case, 2 Pick. (Mass.) 165; Feeley's Case, 12 Cush. (Mass.) 598, 599; Semler, Petitioner, 41 Wis. 517; Ex parte Shaw, 7 Ohio St. 81, 70 Am. Dec. 55; Ex parte Van Hagan, 25 Ohio St. 426; Phinney, Petitioner, 32 Me. 440; Kirby v. State, 62 Ala. 51; Lark v. State, 55 Ga. 435. It has sometimes been held that such a sentence is legal so far as it is within the provisions of law, and void as to the excess. People v. Jacobs, 66 N. Y. 8; People v. Baker, 89 N. Y. 460; Bigelow v. Forrest, 9 Wall. 339, 19 L. Ed. 696."

Extracts from other decisions pertinent to the inquiry at hand are:

Justice Holmes, speaking for the court, in Re Stalker, 167 Mass. 12, 44 N. E. 1068, said: "We assume, as contended for the petitioner that there was error in his sentence because it did not include solitary imprisonment. Lane v. Commonwealth, 161 Mass. 120, 122, 36 N. E. 755. But on a writ of error this could be corrected. Pub. St. 1882, c. 187, § 13; Jacquins v. Commonwealth, 9 Cush. (Mass.) 279. * * Manifestly, it would be an absurd result if the petitioner could get his discharge on habeas corpus when he could not get it by a regular proceeding to reverse his sentence. But whether the sentence could be corrected or could not be, the rule which has been approved by this court denies relief by habeas corpus when the court has jurisdiction to sentence the petitioner, and errs simply in regard to the extent of the punishment. Sennot's Case, 146 Mass. 489, 492, 493, 16 N. E. 448, 4 Am. St. Rep. 344; Feeley's

Case, 12 Cush. (Mass.) 598, 599. See Ex parte Bigelow, 113 U. S. 328, 5 Sup. Ct. 542, 28 L. Ed. 1005; In re Belt, 159 U. S. 95, 15 Sup. Ct. 987, 40 L. Ed. 88."

Petition of Bishop, 172 Mass. 36, 51 N. E. 191: "The general rule is that where the court has jurisdiction, and errs merely in regard to the punishment, relief will not be granted by habeas corpus, but that the remedy is by a writ of error, in which the mistake can be corrected and such sentence pronounced as should have been imposed. Ross' Case, 2 Pick. (Mass.) 165, 172; Sennot's Case, 146 Mass. 489, 16 N. E. 448, 4 Am. St. Rep. 344; Stalker, Petitioner, 167 Mass. 11, 44 N. E. 1068; Ex parte Bigelow, 113 U. S. 328, 5 Sup. Ct. 542, 28 L. Ed. 1005; In re Belt, 159 U. S. 95, 15 Sup. Ct. 987, 40 L. Ed. SS. In exceptional cases, relief may be granted by habeas corpus, or questions of constitutionality considered. Feeley's Case, 12 Cush. (Mass.) 598; Plumley's Case, 156 Mass. 236, 30 N. E. 1127, 15 L. R. A. 839. We discover nothing in this case which takes it out of the general rule."

In re Belt, 159 U. S. 100, 15 Sup. Ct. 988, 40 L. Ed. 88: "The general rule is that the writ of habeas corpus will not issue unless the court, under whose warrant the petitioner is held, is without jurisdiction; and that it cannot be used to correct errors. Ordinarily, the writ will not lie where there is a remedy by writ of error or appeal; but in rare and exceptional cases it may be issued, although such remedy exists."

Elsner v. Shrigley, 80 Iowa, 35, 45 N. W. 393: "In Jackson v. Boyd, 53 Iowa, 536, 5 N. W. 734, it is expressly stated that a failure to fix the time in the judgment 'would not render it void'; and also the extent of the imprisonment is fixed and declared by the statute, and when the defendant has been imprisoned the required length of time he is entitled to be discharged.' Without attaching to this language a broader signification than is required by the facts considered, it sustains the view that the law is a limitation as to the extent of the imprisonment, when no time is fixed in the judgment, and is against the view that the judgment is void because under it the imprisonment might be indefinite'; that is, to the time of the actual payment of the judgment. We reach the conclusion that habeas corpus is not available to question the correctness of the proceedings of the district court with reference to the judgment in question. Our conclusion has support, more or less direct, in many cases, and among them are Turney v. Barr, 75 Iowa, 758, 38 N. W. 550; Hurd, Hab. Corp. (2d Ed.) 328; Cooley, Const. Lim. 347; Shaw v. McHenry, 52 Iowa, 182, 2 N. W. 1096; State v. Orton, 67 Iowa, 554, 25 N. W. 775; Platt v. Harrison, 6 lowa, 79, 71 Am. Dec. 389; Zelle v. McHenry, 51 Iowa, 572, 2 N. W. 264; Herrick v. Smith, 1 Gray (Mass.) 50, 61 Am. Dec. 381: Adams v. Vose. 1 Gray (Mass.) 51; Ex parte Watkins, 3

Pet. (U. S.) 193, 7 L. Ed. 650; Ex parte Siebold, 100 U. S. 371, 25 L. Ed. 717; In re Underwood, 30 Mich. 502; Ross' Case, 2 Pick. (Mass.) 165; Feeley's Case, 12 Cush. (Mass.) 598; Semler, Petitioner, 41 Wis. 517; Ex parte Shaw, 7 Ohio St. 81, 70 Am. Dec. 55; Ex parte Van Hagan, 25 Ohio St. 426; Phinney, Petitioner, 32 Me. 440; Kirby v. State, 62 Ala. 51; People v. Liscomb, 60 N. Y. 559, 19 Am. Rep. 211; Sennot's Case, 146 Mass. 489, 16 N. E. 448, 4 Am. St. Rep. 344; Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872. It is said the judgment of imprisonment, by not fixing a limit, is indefinite; but the law itself defeats such a claim, for beyond its limits the judgment is void, and this proceeding is available for protection against illegal imprisonment."

In People v. Kelly, 97 N. Y. 212, the defendant had been convicted of assault in the third degree and sentenced to imprisonment at hard labor in the state prison, and it was held that, while the sentence was void, as the conviction was valid, the prisoner was not entitled to discharge upon habeas corpus, but should be remanded to the custody of the sheriff.

In Re Harris. 68 Vt. 243, 35 Atl. 55, on habeas corpus, it appeared that the petitioner was properly convicted. The sentence of imprisonment in the state prison was void. It was held that, while he was unlawfully in the state prison, he was not unlawfully restrained, and should be remanded to the sheriff of the county in which he was convicted to be resentenced.

In Ex parte McGuire, 135 Cal. 339, 67 Pac. 327, 87 Am. St. Rep. 105, it was held that the writ of habeas corpus lies not only when the prisoner is entitled to his liberty, but also when he is held by one person, and another is entitled to his custody. Chief Justice Beatty, speaking for the court, said: "My conclusion is that the imprisonment of the petitioner in the county jail, in execution of his sentence for the misdemeanor, is unwarranted and illegal; but it does not follow, as he contends, that he should be set at liberty. He is entitled to the benefit of the writ of habeas corpus only so far as necessary to secure him in his legal right to be placed in the proper custody. It is therefore ordered that he be remanded to the custody of the sheriff for the purpose of delivery forthwith to the warden of the state prison."

In Kingen v. Kelley, 28 Pac. 44, 3 Wyo. 566, 15 L. R. A. 177, the court quoted approvingly from O'Brien v. Barr, 49 N. W. 68, 83 Iowa, 51: ""The imprisonment and its duration could alone be determined by the court. But fixing the particular penitentiary in which the petitioner should be confined is not a part of the judgment. The effect and duration of confinement is all that was judicially determined by the judgment.' ”

In Ex parte Waterman (D. C.) 33 Fed. 29, the petitioner was sentenced to hard labor in the state prison at Auburn for three years,

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