ber that might be cited, clearly state the rule: Turner v. Conkey, 132 Ind. 248, 31 N. E. 777, 17 L. R. A. 509, 32 Am. St. Rep. 251; State v. Kinmore, 54 Minn. 135, 55 N. W. 830, 40 Am. St. Rep. 305; Smith v. Clausmeier, 136 Ind. 105, 35 N. E. 904, 43 Am. St. Rep. 311; Horner v. United States, 143 U. S. 570-578, 12 Sup. Ct. 522, 36 L. Ed. 266; Young v. Fain, 121 Ga. 737, 49 S. E. 731; Ex parte Perdue, 58 Ark. 285, 24 S. W. 423; Merriman v. Morgan, 7 Or. 69. There is no statutory authority in this state whereby a court or judge, on habeas corpus, may review the evidence adduced before a magistrate in support of a criminal charge for the purpose of determining whether the evidence was either competent or sufficient to warrant the magistrate in holding the accused for trial to the district court and in committing him for that purpose. The proceedings had before the magistrate in this case are not attacked upon jurisdictional grounds. There was a proper complaint which charged an offense. The magistrate had jurisdiction of the subject-matter and of the person of the accused. A hearing was had. Witnesses were sworn, and testified both for the state and the accused, and their testimony was reduced to writing. All this was in compliance with the law of this state. The commitment papers are not attacked. In addition to the foregoing, the transcript of all the proceedings had before the magistrate discloses that the law had been complied with in every particular. This being so, the district court who heard the habeas corpus proceeding had no authority to review the evidence heard by the magistrate for the purpose of determining its sufficiency to support the judgment or order entered by him in holding the accused to answer to the district court. In order to justify the district court to so review the evidence would require that the writ of habeas corpus be transformed to a writ of review, which, as Judge Cooley well says, would be an abuse of the writ. It is not the province of a court or judge, on habeas corpus, to determine whether in his judgment the evidence is sufficient to warrant the binding over of the accused or not. The only question in such a proceeding is: Is the accused illegally restrained of

his liberty? The magistrate may err in his judgment both with regard to the competency and the sufficiency of the evidence, but this alone does not make the restraint illegal. It would at most make it erroneous. Errors must be cured by an appeal or in proceedings provided by law and instituted for that purpose.

But the district court in this proceeding went beyond what the authorities justify even in those states where there are special statutes permitting courts on habeas corpus to review the findings of the magistrate made on preliminary examinations. In those states the general rule is that the court or judge on habeas corpus may examine into the evidence for the purpose only of determining whether there is any legal evidence which fairly tends to support the findings and order of the magistrate. (State v. Hayden, supra; United States v. Greene [D. C.], 108 Fed. 816; In re Henry, 13 Misc. Rep. 734, 35 N. Y. Supp. 210; State v. Beaverstad, 12 N. D. 527, 97 N. W. 548; Ex parte Becker, 86 Cal. 402, 25 Pac. 9.) The evidence in the record directly and positively connects the respondent with the shooting which it is claimed resulted in the death of the person named in the complaint filed with the magistrate. This being so, the district court was not authorized to pass upon the competency of the evidence in a habeas corpus proceeding. In view of the statutes of this state governing preliminary examinations and the fundamental principles underlying proceedings in habeas corpus, we are constrained to hold that where the record, certified to by the magistrate, affirmatively shows what we have stated the record in this case discloses, and there is no attack upon the truthfulness of the facts recited in the record, the court is powerless to go behind the judgment of the magistrate. If, however, the accused should allege and offer to prove that the magistrate did not in fact hear any evidence in support of the charge, and the accused did not, with the consent of the state, waive an examination, and that the record showing the proceedings of the magistrate is false, then the court or judge, on habeas corpus proceedings, should hear the evidence in that regard; and, if he finds that there

was no preliminary examination or hearing by the magistrate, the accused should be discharged.

The order or judgment of the district court discharging the respondent therefore should be, and accordingly is, rever sed,

MCCARTY, C. J., and STRAUP, J., concur.

JONES v. BLYTHE.

1. ANIMALS-RUNNING AT LARGE-FENCE LAWS. Though under Revised Statutes 1898, section 20, providing that if sheep, etc., shall trespass on the premises of any person, except where such premises are not inclosed by a lawful fence in counties in which a fence is required by law, the party aggrieved may recover damages by action or by distraining, as therein provided, an owner of sheep is not liable for damages resulting from an unintentional trespass on uninclosed lands in a county in which a fence law is in force, yet he is liable where he intentionally drives his sheep on such land.

2. SAME TRESPASSING ANIMALS-EVIDENCE-SUFFICIENCY.

Evidence

in an action for damages caused by sheep trespassing on premises held to show that the owner of the sheep, after being notified to keep them off the premises, willfully drove them thereon and kept them there till they had eaten and destroyed much of the grass.1

APPEAL from District Court, Box Elder County; W. W. Maughan, Judge.

Action by William Jones against John Blythe. Judgment for plaintiff, and defendant appeals.

AFFIRMED.

Maginnis & Corn for appellant.

J. D. Call for respondent.

1 Buford v. Houtz, 5 Utah 591, 18 Pac. 633.

APPELLANT'S POINTS.

It is well settled that in this section of the country the principle does not prevail that a man is bound to keep his own stock confined within his own grounds, or else be liable for their trespasses upon the unenclosed grounds of his neighbors. But the owners of domestic animals may permit them to run at large and pasture upon the public lands and upon the unenclosed lands of private individuals without let or hindrance. (Buford v. Houtz, 133 U. S. 320, 5 Utah 591, 18 Pac. 633; Kerwhacker v. Railroad, 3 Oh. St. 175; Seely v. Peters, 10 Ill. 130; Logan v. Cedney, 38 Cal. 579.)

RESPONDENT'S POINTS.

"A person has no right to drive his cattle upon uninclosed or insufficiently fenced land of another, and if he does so it is a trespass for which the owner of the land may recover." (12 Am. & Eng. Enc. of Law [2d Ed.], 1045 and cases cited.)

"The owner of cattle who wilfully turns them on to the land of another without his consent is liable without regard to the question of fences and in some cases may be held criminally for such trespass. (2 Cyc. 398 and cases cited; 2 Am. Digest [Century Edition], col. 605, secs. 335, 338; Martin v. Jacobson, 3 Pac. [Cal.], 122; Logan v. Gedney, 38 Cal. 580.)

MCCARTY, J.

This is an appeal by the defendant from a judgment rendered in the district court of Box Elder county in favor of plaintiff for damages alleged to have been caused by defendant's sheep trespassing upon and eating off and destroying the grass and herbage upon certain lands of plaintiff situ ated in the northwestern part of Box Elder county, this state. The land is described in the complaint as follows: "All of sections 29, 30, 31, and 32, township 14 N., of range 17 W., Salt Lake Meridian"-and is situated in what is known as "Cotton Thomas Basin." This basin has an area of about

twenty-five or thirty square miles, and is surrounded by mountains. At the time of the alleged trespass the land was partly inclosed by a fence, which extended along the eastern and northern boundary thereof. A few rods south of the southern boundary there was a line of fence posts extending east and west along the south side of the premises. There was no fence along the western line or boundary of the land. The premises were covered with different kinds of grass, brush, and herbage, upon which cattle and other animals fed and browsed. This land was used by plaintiff for grazing purposes, and during the summer season of each year he pastured thereon several hundred head of cattle. The complaint contains two causes of action. In the first cause of action it is alleged that the damage was caused between the 1st day of June and the 11th day of July, 1906; and in the second cause of action it is alleged that the trespass complained of was committed between the 1st day of June and the 15th day of July, 1905. The particular acts of trespass relied on for recovery in the first cause of action are alleged in the complaint as follows: "That at divers times, and upon each and every day between the dates herein alleged, the defendant, his agents, and employees, willfully trespassed upon said land by driving in and upon said land a large number of sheep, to wit, about six thousand head, and maintained camps and sheep beds, and herded said sheep thereon for and during all of said period of time, and as a result thereof the said sheep ate, browsed, killed, and destroyed the grass, verdure, underbrush, and a large number of small trees growing on said land." It is further alleged that "plaintiff warned said defendant against driving and herding his said sheep upon said real estate, or permitting them to go thereon, and that defendant has threatened and still threatens to and will use force and violence against plaintiff if he attempts to keep said sheep from said premises." The allegations describing the alleged trespass are substantially the same in both causes of action. Defendant answered, and specifically denied each and every material allegation of the complaint, and as a further defense pleaded