But it is urged by counsel in argument that Coulter authorized Hill to draw on him at sight for the necessary funds to pay attorneys, and that after he learned that they would refuse to accept the draft as payment, he transferred the money by telegraph to Salt Lake City. In answer to this, it may be said that if he saw fit, with a full knowledge of the facts, to wait until after the case had been called in its order for trial before making any effort to pay his attorneys, and without any assurance from them that the draft would be accepted as money, he did it at his own risk, with full knowledge of the consequences in case of a refusal to accept it in payment. Without some assurance on their part that the draft would be acceptable, he was not authorized by law to assume that it would be received as payment. The affidavits tend to show, and it is undoubtedly true, that during the eighth, ninth, and tenth of November Harmer was negotiating a compromise of the case with the plaintiff, and that upon the failure of Coulter to forward the money on the morning of the tenth, and upon the withdrawal of the counsel for defendants, he closed the negotiations by agreeing to receive or by receiving five thousand dollars for the defendants in the cases. The payment of this money to Harmer made the judgment of the court no more and no less binding upon Coulter unless he agreed to it, by receiving a part of the money, or otherwise. It is not easy to see how Coulter was wronged by this. Harmer may have been disingenuous with the plaintiff, but Coulter has no ground of complaint; if he sees fit to approve or confirm the action, he can do so, but if not, his rights remain the same, unless the relations between them were such that Coulter was bound by Harmer's acts. If he was wronged, his remedy is not by motion for a new trial upon the ground of accident or surprise. It is a universally admitted rule of practice that no person is entitled to a new trial unless he has used due diligence to avoid the acts or grounds upon which he bases his motion. Apply this rule to the present case, and it may well be said that Coulter, upon being informed that the attorneys for the defense insisted upon their pay for services before trial, should have seen. to it that they were so paid. And a failure on his part in this respect, and the withdrawal from the case because they were not so paid, and the reasonable and probable consequences The judgment of the district court is affirmed. STEWART MINING COMPANY v. COULTER. THE THE judgment and order denying a new trial in these cases affirmed, on the authority of the Stewart M. Co. v. Coulter, ante, decided at this term, under stipulation of the attorneys. IN RE CLASBY. HABEAS CORPUS-APPEALS.-Neither the defendant named in the writ nor the people have the right to an appeal from an order discharging a person upon a hearing of habeas corpus. APPEAL from the third district court. The opinion states the facts. Z. Snow and Sheeks & Rawlins, for the appellants. No brief on file. Arthur Brown, for the respondent. Respondent alleges that there is no appeal given to the person that is seeking to arrest him. The act of habeas corpus of the territory of Utah is a copy of the California statute, and no appeal has ever been allowed under that act: In re Parsons, 2 Cal. 430; People v. Selvester, 40 Id. 627. The theory of the law on that subject is this: The person having the custody of the petitioner has no right of appeal, because he can have no beneficial interest or right in the imprisonment of petitioner. The applicant has no right of appeal, because in all cases he may apply at once, by another original writ, to the appellate court itself, there being no such thing as res adjudicata in such cases: Cases above cited. TWISS, J.: The respondent, being arrested and brought before Alex. C. Pyper, a justice of the peace in Salt Lake City, upon a warrant charging him with the unlawful sale of spirituous liquors without obtaining a license from the county of Salt Lake for the sale of the same, made application to the judge of the third district court for a writ of habeas corpus, which was granted, and made returnable before the third district court, to which return was made by the defendant, the constable making the arrest, that the plaintiff was held by him under and by virtue of said warrant and order of said justice of the peace. On the hearing of the parties upon the writ and return thereof, the court ordered the discharge of the plaintiff, from which the defendant and the people of the territory of Utah appealed to this court. Two questions are raised by the arguments of counsel: 1. Was the plaintiff rightfully discharged by the court below? 2. Have the appellants the right of appeal to this court? If the appeal is not rightfully here, we need go no further in the case; the first question, whether correctly decided by the court below or not, is not essential to a disposal of the appeal in this court. In the case of Wythe v. Richardson, 10 Gray, 240, Shaw, C. J., in the opinion of the court, says: "The great purpose of the writ of habeas corpus is the immediate delivery of the party deprived of personal liberty. The allowance of exceptions would be inconsistent with the object of the writ. The consequence of allowing exceptions would be inconsistent with the writ. The consequence of allowing exceptions must be either that all further proceedings be stayed, which would be wholly inconsistent with the purpose of the writ, or that the exceptions must be held frivolous and judgment non abstante for the discharge of the party, in which case the exceptions would be unavailing. The allowance of the exceptions would be unavailing. The allowance of the exceptions being thus inconsistent with the very purpose of the writ, the conclusion must be that the exceptions do not lie.” The provisions of section 1553 of the complied laws, that an appeal may be taken from a final judgment in an action. or special proceeding commenced in the court in which the judgment is recorded, and of the organic act, that writs of error, bills of exception, and appeals shall be allowed in all cases from final decisions of said district courts to the supreme court, do not give the defendant and the people of this territory the right of appeal in this case. By sections 1144 and 1145 of the compiled laws, it is provided that the court or judge shall proceed in a summary manner to settle the facts by hearing the testimony and arguments of the parties interested, and shall dispose of the prisoner or prisoners as the case may require, and “if no sufficient or legal cause of detention is shown, the plaintiff must be discharged." A person unlawfully imprisoned invokes the writ of habeas corpus with the expectation that an intelligent, conscientious discharge of judicial duty will restore to him his liberty. And upon the judge who hears and determines the cause rests an important responsibility both to the prisoner and to the people. It is not to be presumed that a court or judge will hastily or without due consideration either remand the plaintiff into custody or discharge him from arrest. If the judge is of the opinion that the process by which the plaintiff is held is illegal, or that he is unlawfully restrained of his liberty, he is bound to release him from such unlawful restraint; and upon an order discharging him, the prisoner is entitled to unrestrained liberty, unless the defendant who holds him in custody or the people have the right of appeal, and the judge, or court upon appeal being taken, has the right to order the prisoner into the custody from whence he came until the legality of such imprisonment is determined by the appellate court, in which case the writ is of no avail to the prisoner; if he is permitted to go at large pending the appeal, the appeal in most cases would be of no use to the people, for the reason that the plaintiff has absconded. The object of the writ is that the right to a discharge may in a summary manner be at once determined. If the people have a right to an appeal when the plaintiff is by order of the court or judge discharged, then in such case the writ falls far short of the purpose for which it was intended, and for the last two centuries has been used. Suppose for a moment the appeal to be well taken, and that this court should find that the court below erred in discharging the plaintiff: can this court issue a bench-warrant for his rearrest, or direct the justice of the peace to again issue his warrant upon the same or original complaint for arrest of the person there charged with the commission of a criminal offense, for which he was arrested, imprisoned, and discharged from arrest by the district court? Or suppose, in the mean time, a grand jury have passed upon the facts involving the guilt or innocence of the plaintiff, and have refused to find an indictment: ought the plaintiff to be again arrested by an order of this court, and compelled to defend himself against an arrest made on such an order? It is easy to see that such proceedings would inevitably result in inextricable confusion; and if the discharge of the applicant upon a writ of habeas corpus, before a court or judge having jurisdiction, is an order or judgment from which an appeal can be taken to this court, necessarily attended with unavoidable delay, the value of this great writ as a safeguard of personal liberty is at least greatly impaired, if it is not changed into a means of oppression: Yates v. People, 6 Johns. 335; Ex parte Jils, 64 Mo. 205. For these reasons, we are all of the opinion that the defendant named in the writ of habeas corpus and the people of this territory have no right to an appeal from the district court to this court, and the appeal is dismissed. HUNTER, C. J., and EMERSON, J., concurred. 3 186 d26 118 SKEWS v. DUNN. AN APPEAL FROM THE JUSTICE'S COURT TO THE DISTRICT COURTS ENTITLES the appellant to a trial anew upon the same cause of action and pleadings as in the justice's court, and he is liable to be confronted with the same testimony that could have been introduced on the trial before the justice, and no other. AN UNCONDITIONAL SUBSTITUTION AS PLAINTIFF OF A PERSON WHO IS THE REAL PARTY IN INTEREST, and in whose name the action should originally have been begun, is error, where the effect of such substitution is to deprive the defendant of a substantial right, subjecting him to the ef |