By the Court,
Bqise, J.:It appears that the appellant "was arrested, brought before the committing magistrate, and held to answer the charge at the next term of the circuit court. Before the next term of that court, the appellant in this action was discharged from custody on a writ of habeas corpus, issued by the judge of the circuit court.
In order to maintain this action, it was necessary for the appellant to allege that the proceeding against him of which he complained ivas finally terminated by liis discharge or acquittal of the offense charged against him, on which he had been arrested. The appellant claims that his discharge on the proceedings under the habeas corpus is sufficient to enable him to maintain this action. The questions which come before the court on a writ of habeas corpus arise in a case like this on the sufficiency of the writ or process by which the officer holds the prisoner.
The return to the writ does not show the proceedings before the committing magistrate any further than they are recited in the mittimus, for the officer does not have the record of the magistrate, and the only proper questions before the court are as to its regularity and sufficiency to authorize the officer to hold the prisoner in custody. If sufficient, the prisoner must be remanded; if not sufficient, he must be discharged. For the court hearing the habeas corpus case will not inquire into the regularity of the proceedings before the committing magistrate, further than relates to the jurisdiction of the magistrate. If, in this case, the magistrate had- authority by law to commit the appellant for obtaining goods under false pretenses, of which authority the circuit court must have taken judicial *74•knowledge, then it did not matter how irregular were the proceedings before the magistrate. They were not properly before the court in the trial of the case of habeas corpus. If the magistrate was satisfied that the crime was committed, it was his duty to commit the accused, notwithstanding irregularity in the proceedings before him. For the crime and its degree might be ascertained from the evidence. (Statute, p. 476, sec. 108; p. 392, sec. 401.) As the case was to be reported to the grand jury, where an indictment would be drawn in due form, technicality was not particularly essential in the magistrate’s court.
The rule in New York, in cases of habeas corpus, is to confine the inquiry to the regularity of the process under which the officer holds the prisoner. In the case of Prime, 1 Barb. 349, Judge Mason says: “We can not inquire into the technicalities or the strict regularity of the proceedings. This writ is not intended to review the regularity of the proceedings in any case, but rather to restore to his liberty the citizen who is imprisoned without color of law.” The most that the court could have done in this habeas corpus case was to examine the warrant of commitment and the proceedings of the magistrate, so far as to see if he had jurisdiction of the subject-matter on which he found judgment. In case these matters were all before the judge by the return, and the traverse thereto, the proceedings on the habeas corpus case in no way determined or finally ended these proceedings, for the magistrate wa3 as much bound in obedience to section 411 of the statute, to return the proceedings before him to the circuit court, as though no writ of habeas corpus had been issued, and the case would go on before the grand jury unembarrassed by such proceeding.
It is claimed by the counsel for the appellant that section 618 authorizes the court, in the trial of cases of habeas corpus, to examine the merits of the case on which the prisoner is held. This section is the same as section 50 of the statutes of New York, and there it has been held, after much discussion and repeated adjudications, that the rule as stated above is correct, and shows how far courts can go *75in trials in such cases. (People v. McLeod, 3 Hill, 635; I Barb. 349; 18 Johns. 304.)
It is claimed in the allegation in the appellant’s complaint that this process was abused by being used to compel the appellant to pay for the property, which it is alleged he obtained by false pretenses, and that in such a case it is not necessary to showthat the prosecution is ended. The authorities cited to support this view are very different from the case before us. Here the appellant is charged with a criminal offense, which for aught that appears was still pending and undetermined. The magistrate, after hearing the evidence, held him to answer. This holding him to answer by the magistrate negatives the allegation in the complaint that he was falsely charged, and until there has been some discharge from that decision appellant can not sue the respondent for abuse of process. If he had alleged that a warrant had been issued and he had been arrested to extort money from him, and no determination had been had against him, and that the respondent was pursuing him simply to extort money, it might be different; but the appellant has plead that one court has found that the prosecution was justifiable, and this finding must be disposed of in his favor or the prosecution be abandoned before he can sue, and it can not be said to be abandoned before the session of the court to which the proceedings before the magistrate are returnable, for the defendant can not stop those proceedings, and a hearing must be had before the grand jury, so that the respondent has no control over this prosecution, which was still pending when this action was brought. We think that the allegation, therefore, in the appellant’s complaint, that he was ordered to appear in the circuit court to answer this charge, shows that he has no cause of action for the abuse of process.
The judgment of the circuit court is affirmed, with costs and disbursements.