be had to the common law; but the power to award the writ by the courts of the United States must be given by written law." And, considering the language of our own constitution touching this question, and also the nature, objects and prime functions of our supreme court, we conclude that the justices thereof, acting singly or out of term, are without constitutional jurisdiction and authority to issue the certain writs enumerated in the constitutional provision referred to, or to hear or determine the matters arising thereon. Second-Is the proceeding by habeas corpus the proper remedy, in this case? We think it is. The statute under which the remedy is sought, and the only one which affords such remedy, where one exists at all, is in the habeas corpus act, and a substantially similar provision for accomplishing the same object-the securing to persons charged with the higher class of crimes a speedy trial, according to law-was contained in the English habeas corpus act of Charles II, and, with various modifications, has been brought down to our time, as a part of the act providing for the issue of this famous writ of right, for the protection of personal liberty. In the case of Brooks v. People, 88 Ill., 327, under a similar statute, the question was presented by writ of error, the statute in question having been taken out of the habeas corpus act, and placed in the general criminal law; and so the question whether habeas corpus would lie, was not raised or discussed, in the principal opinion; but, in the separate opinion of Mr. Justice Scott, who dissented upon another ground, it is said that habeas corpus lies in such cases. The case of the Commonwealth v. Adcock, 8 Grattan, 661, cited by the attorney general, we deem unnecessary to review. It is sufficient to say that it is unsafe to attempt to avoid the hard consequences of a particular case, by setting up what the court or judge may conceive to be the "spirit of the law," against the plain letter and principles of the law. The same remedy was pursued in the cases of Green v. Commonwealth, 1 Rob. (Va.), 731, and in Glover's case, 109 Mass., 340, and upon principle, we think the writ in such cases ought to lie, for if a given case is brought within the provisions of the act, it becomes a case of an unlawful restraint of liberty. A few authorities hold a contrary doctrine, but, so far as I have examined, are cases arising upon statutes different from ours, such as the cases of ex parte McGehan, 22 Ohio St., 444, where the statute provided for the absolute discharge of the prisoner from the offense; and it was held that the judgment of the court below denying the motion for such discharge, was to be reviewed upon error, inasmuch as said judgment was a final discharge, which, in effect, was an acquittal of the crime charged. Our statute, it will be noted, does not work such discharge of the offense, but operates merely to set the prisoner at liberty. For the foregoing reasons we must hold, that in the case at bar, the writ prayed is the proper remedy. Third-Ought the petitioner to be discharged upon the facts pre sented? The answer to this question rests upon matters of fact solely, for in a case brought fairly within its provisions the statute seems to be peremptory. We are not compelled, upon this application, to consider the proceedings in this case prior to the reversal upon error by the court, 6 Colo., 559, in May 1883, of the judgment of the district court upon the conviction for murder. It appears from the uncontradicted averments of the petition that when the cause was then remanded to the district court for for further proceedings according to law," the April term of that court was still in session, and there can be no donbt as to that court's then having jurisdiction to try the case. Instead of putting the petitioner upon trial for the crime of manslaughter, the court without trial or verdict, pronounced judgment against him and committed him to the penitentiary for the term of eight years. This court, upon habeas corpus, again interposed and discharged him from the penitentiary, but remanded him to the custody of the sheriff to be held for trial. In the meantime the September term, 1883, and the January term, 1884, of said court came and went, and at the following April term, 1884, the petitioner interposed his motion for discharge under the statute. Before the hearing upon this motion the cause was transferred from the district court upon its own motion to the criminal court of Arapahoe county. The March term of this latter court was then in session, and upon a hearing therein of petitioner's said motion it was denied, after which the term adjourned without trying him. It appears then from the record that there were four terms of the district court, to wit: April and September, 1883, and January and April, 1884, at each of which that court had jurisdiction both of the petitioner and his offense, and there was in addition one term of the criminal court, when this latter court possessed such jurisdiction. At each of these five terms the petitioner might have been tried; the failure to try did not happen upon his application and he has been in custody during the entire time. It seems to us, under this state of facts, that we must either misconstrue the statute and legislate into it much that does not appear therein, or grant the prayer of the petitioner; and, for as much as the facts disclosed as above recited appear to bring the case clearly within the plain provisions of the statute upon which this application is made, it becomes our duty, in administering the law, to adjudge and order that the petitioner be set at liberty, and it is so ordered accordingly. TOLNNIGES V. DRAKE ET AL. Filed October 6, 1884. SERVICE OF SUMMONS BY PLAINTIFF-DEFAULT-JUDGMENT.-The service of a summons by a plaintiff in an action, although specially deputized by the sheriff to make the same, is void, and a judgment by default entered upon such service is a nullity. ERROR to the county court of Gunnison county. The opinion states the facts. Thomas, McDougal & Thomas, for the plaintiff in error. BECK, C. J. The principal question submitted for adjudication in this case is, whether under our statute a plaintiff can serve his own summons. The record discloses that Drake, one of the plaintiffs below, was especially appointed by the sheriff of Gunnison county, to serve the summons in this case, and that he did serve and return the same in manner specified in the civil code. The provision referred to is as follows: "The summons shall be served by the sheriff of the county where the defendant is found, or by his deputy, or by a person specially appointed by him, or appointed by a judge of the court in which the action is brought. When the summons is served by the sheriff or his deputy, it shall be returned with the certificate of the officer of its service, to the office of the clerk from which the summons issued. When the summons is served by any other person, as before provided, it shall be returned to the office of the clerk from which it issued, with the affidavit of said person of its service:" Civil Code Comp. 1883, page 13. Sec. 39. It is provided in the general statutes that whenever the sheriff shall be a party to a cause, or whenever an affidavit is made and filed with the clerk, by a party to a litigation, that he believes the sheriff would not, by reason of partiality, prejudice, consanguinity or interest, faithfully perform his duties in any suit, the coroner shall execute process of every kind therein: General Statutes, 1883, Sec. 613, 614. The plaintiff not being prohibited from serving his summons, by the express letter of the statutes, it is contended that the authority conferred upon a sheriff to specially appoint a person to serve the writ, authorizes him to appoint the plaintiff in the action. We do not think this position is sound. Our statute, when its several provisions are considered together, is found to be but declaratory of the common law rules upon this subject. Under these rules all writs and processes were regularly delivered to the sheriff, for service, and he was sworn to execute the same without favor, dread or corruption. Nevertheless, if the sheriff was partial, by reason of consanguinity or affinity, or if he was under the power of either party, or if he was himself a party to the action, so that he could not be presumed indifferent in the service and return of the writ, the process was directed to the coroner. If the coroner was partial or not indifferent in the matter, two persons called elisors, against whom no cause of challenge existed, were named by the court to execute the process: 8 Bacoris Abv., pp. 689, 690. A careful consideration of the various provisions of the statutes of this state, renders it apparent that it was the intention of the framers, to insure to litigants the same rights that were secured by the rules of the common law, to wit: that all process be served by disinterested and impartial officers or persons. This intention would certainly be defeated by the construction contended for. It is clear, upon principle, that the same causes which should disqualify a sworn officer from serving a writ, should equally disqualify a private person. It would involve an absurdity to say that a party to a suit shall be protected against the presumed partiality of a regularly commissioned and sworn officer of the court, arising either from his interest in the subject matter of litigation as a party thereto, or from other causes, and at the same time be exposed to the partial prejudiced or corrupt official action of any other person or party obnoxious to the same objections. The statute does not say that a plaintiff may execute his own writ, and principle, reason and authority alike forbid such a construction. The code of Mississippi (Revised Code, 1871, sec. 257), provides that if the sheriff be a party or interested in any suit, or for other just cause, is rendered incapable or unfit to execute his office in any particular case, the coroner shall perform the duties of sheriff and execute all writs. Under this statute, in the case of Dyson v. Baker, 54 Miss., 24, wherein a plaintiff had been specially deputized by the sheriff to execute a writ of attachment in his own case, the court held that both the officers of the court and private persons were disqualified to execute process in cases wherein they were parties or interested. The case of Filkins v. O'Sullivan, 79 Ills., 524, is very similar, in all respects, to the one under consideration. The statutes of Illinois of 1869, Laws 1869, page 399, authorized the sheriff to appoint a special deputy to serve any process issuing out of a court of record, by indorsing the appointment on the writ. The person so appointed was required to serve the writ by reading the same and delivering to the defendant a copy thereof, and the return was to be made under oath. . The plaintiff in the above case was authorized to serve the summons. The court said this was error; that a party could not serve his own writ. On account of this error, and of a defective return of the writ, it was held that the court below acquired no jurisdiction of the person of the defendant. Counsel for defendants in error, in the present case, call our attention to the fact that the provisions of the New York code, forbid a party to the action to serve a summons in any case. They then cite the cases of Myer v. Overton, 4 E. D. Smith, 428, and Hunter v. Lester, 18 How. Pr., p. 347, as establishing the doctrine that if a plaintiff does serve his own summons, it is only deemed an irregularity, and is cured by judgment. We cannot approve this doctrine, where a plaintiff is disqualified by statute, to perform an official act necessary to give the court jurisdiction over the person of the defendant. As in cases referred to by counsel, to hold that if he does perform such act, and the court proceeds in the absence of the defendant to render judgment by default against the defendant, the defect is cured and the judgment must stand, would seem to fritter away, by construction, the protection against frauds intended to be secured to suitors by the statute. The last mentioned cases hold, however, that if the defendant appears before judgment, and moves to quash the return, limiting his appearance for the purposes of the motion, the error may be corrected. That was the course adopted by the defendant below in this case, and the refusal of the court to quash the return of service, is the principal error assigned. This ruling would seem to have been erroneous, even under the authority just cited. We are of opinion that the service of a summons, by a plaintiff in the cause, is void, and that a judgment entered in the absence of the defendant, upon such service, is a nullity. The judgment is reversed, and the cause remanded, with instructions to the clerk of the court below to issue an alias writ of sum mons. Judgment reversed. SUPREME COURT OF NEVADA. ALT v. CALIFORNIA FIG SYRUP COMPANY. Filed October 6, 1884. APPEAL CERTIFICATE OF DEPOSIT IN LIEU OF APPEAL UNDERTAKING.-The statutory requirement, that to render an appeal effectual, the appellant may, instead of giving an undertaking with sureties, deposit money equal in amount to the sum named in the undertaking, is substantially complied with by leaving with the clerk a certificate of deposit, payable to his order, for the requisite amount. MOTION to dismiss an appeal from the seventh judicial district court for Washoe county. The opinion states the facts. Thomas E. Haydon, for the appellant. R. H. Lindsay, for the respondent. BELKNAP, J. This is a motion to dismiss an appeal because of appellant's alleged failure to give the undertaking or deposit the money necessary to make an appeal effectual. Upon the evening of the fifth day, following the appeal, the defendant presented the clerk of the district court with a certificate of deposit, payable to his order, and issued by the First National Bank |