Maesbtall, J.
Because of the long delay in announcing the decision in this case it is deemed proper to say, as a justification therefor, that the number and importance of the questions involved were such that the case seemed to call for the. most careful study by each member of the court which the amplest opportunity therefor would permit, and to require that a decision should be rendered only when it could embody the best judgment of each such member, if that result could be reached within such time as not, by reason of the delay, to materially prejudice the administration of justice. There is room for congratulation that the purpose. of the long deliberation upon the case has been accomplished. To circumstances which were unavoidable, preventing that full discharge of official duty, as regards individual study of the case, which was desired prior to settling upon the final conclusions, the delay must be in the main attributed. The questions legitimately discussed by counsel are so numerous that in the preparation of the opinion a choice had to be made between stating mere conclusions with appropriate supporting authorities, and discussing such questions at length. By the former, method a brief opinion would have sufficed to cover the case; by the latter a lengthy opinion was unavoidable. The former course would have required but little labor compared with the latter, but it seemed that the careful preparation of the case and presentation of it by numerous and able counsel for the respective parties could not be adequately responded to, so as to fairly indicate the appreciation felt here for the assistance received from such preparation and presentation, *218otherwise than, by a pretty full discussion of each of the points decided which counsel upon either side deemed of sufficient importance to require them to present for that purpose. Acting upon that conviction we will discuss each of such points with sufficient fullness to satisfy all reasonable expectation and endeavor to make the conclusions reached a definite declaration of the law, so that, in addition to adjudicating the rights of the parties to the suit, the result will be valuable, as regards each point presented, in guiding the courts and the profession in this state in future-cases.
Opposition to the motion on behalf of the relator to be heard in this court by private counsel in his behalf, was based on the following grounds: (1) It involves consideration of one of the errors claimed to have been committed by the court below which should only take place upon the consideration of the other errors. (2) The attorney general is required by sec. 163, Stats. 1898, to appear for the state and prosecute or defend all proceedings in the supreme court, in which the state is interested or a party, and that precludes appearance by private counsel in criminal proceedings, the law being the same as to the attorney general in the supreme court as it is as to the district attorney in the circuit court. (3) The sheriff is not a party and has no personal interest in the result of the review of the proceedings called in question by the writs of error. Each of such-propositions involves an important question of practice,’ which is regulated either by statute or by the judicial policy-of the state, and has received consideration resulting in the following conclusions:
1. If the sheriff of Milwaukee county by whom the state sued out the writ of error, is a party to the proceedings in-this court and in any event is entitled to be heard as such he cannot be denied that right because to allow it would be inconsistent with a ruling of the court below, sought to be *219reviewed by the writ of error. If he is properly here as a party, obviously, his rights as .such cannot be jeopardized by any decision made by the court below which is a subject for review on the writ of error. That seems too clear for reasonable controversy. If counsel’s position be correct, no person denied the right to be heárd in a trial court upon the ground that he is not interested in the controversy, can be heard on appeal from the decision except there be a judgment for costs against him, because recognition here to present his case would be a recognition of his claim that he was a party to the proceeding in the trial court. We cannot sanction that doctrine. The sheriff was the actor in suing out the writ of error. He appears at the bar of the court and asks to be heard by counsel. If he is a part)7 to the proceeding he must be heard regardless of any incidental bearing the decision may have upon any question involved in the review of the proceedings upon the writ. Manifestly, if he was a party in interest in the habeas corpus proceedings he was a party to the suit commenced in this court by the writ of error to review the result thereof, if he was bound thereby to his injury, to some appreciable degree, either directly and immediately or so that direct injury of some sort may probably come to him therefrom; in short, if he is “ a party aggrieved.” Our appeal statute on that point (sec. 3048, Stats. 1898) is no broader at most than the common-law rules governing the subject of parties in suits commenced by writs of error, or sec. 3043. A writ of error lies in favor of him “ who is a party to the record; ” a man who “ is aggrieved by an error in the foundation, proceeding, judgment, or execution, in suit,” said Justice Grier in Bayard v. Lombard, 9 How. 530, quoting from early common-law writers. See, also, 7 Ency. of Pl. & Pr. 856. That the relator here is a party aggrieved within the rule stated it seems is quite clear, but we will refer to the subject more at length in the discussion of the third proposition.
*2202. The second proposition assumes that proceedings to test the right of a person to his personal liberty are criminal in character and governed by the rule declared in Biemel v. State, 71 Wis. 444; State v. Duff, 83 Wis. 291, and other cases. Whether habeas corpus proceedings are in their nature civil or criminal we do not deem necessarily material. If the decision were to turn on that question, though, as at present advised, it would result in favor of the proposition that the remedy by habeas corpus is a civil remedy, as contended by the relator. The writ ad, faciendum, subjicien-dum, et recipiendum of the common law was the sole legal remedy of a person wrongfully restrained of his liberty. The purpose of a proceeding instituted by it was not to punish for the wrongful act of restraining him of his liberty, nor did it concern, necessarily, the wrongful act causing his detention. It was confined to compelling the immediate human instrument of the unlawful restraint to restore his victim to liberty notwithstanding any charge made against him. The case cited to our attention by relator’s counsel (Ex parte Tom Tong, 108 U. S. 556, opinion by Waite, C. J.) states briefly and clearly the true nature of such proceedings, as they are uniformly regarded in the books:
“ The writ of habeas corpus is the remedy which the law gives for the enforcement of the civil right of personal liberty. Resort to it sometimes becomes necessary, because of what is done to enforce laws for the punishment of crimes, but the judicial proceeding under it is not to inquire into the criminal act which is complained of, but into the right of liberty notwithstanding the act. Proceedings to enforce civil rights are civil proceedings, and proceedings for the punishment of crimes are criminal proceedings. In the present case the petitioner is held under criminal' process. The prosecution against him is a criminal prosecution, but the writ of habeas corpus which he has obtained is not a proceeding in that prosecution. On the contrary it is a new suit brought by him to enforce a civil right, which he claims, as against those who are holding him in custody under the criminal process.” a
*221In a later case, Cross v. Burke, 146 U. S. 82, the court, speaking by Fullee, O. J., said: “ It is well .settled that a proceeding in habeas corpus is a civil and not a criminal proceeding.” So the authorities in this state, that it is the policy of the written law that no one but the public prosecutor or his assistant duly appointed shall be permitted to represent the commonwealth in criminal cases against the accused, do not extend to a civil action or proceeding in the nature of a civil suit commenced by the issuance of a writ of habeas corpus, because, if for no other reason, it is not a criminal suit. The law that makes it the duty of the district attorney of a county to appear and prosecute or defend all actions, applications, or motions, civil or criminal, in the courts of his county wherein the state is interested or a party, except for assault and battery (sec. 752, Stats. 1898), precludes legal services being rendered by way of assisting the district attorney in a civil matter at public expense. That has often been decided. McDonald v. Milwaukee Co. 41 Wis. 642; Manitowoc Co. Sup’rs v. Sullivan, 51 Wis. 115; Cutts v. Rock Co. 58 Wis. 642; State v. Duff, 83 Wis. 291; Frederick v. Douglas Co. 96 Wis. 411. But it has nowhere been decided that the state’s attorney, either of the county or the state at large, cannot obtain or receive assistance at his own expense or the expense of others in a civil proceeding. In McDonald v. Milwaukee Co., supra, the sheriff employed counsel to defend against proceedings commenced by writ of habeas corpus. He made a claim against the county for his disbursements for such services. The claim was held invalid, because of. the duty of the district attorney of the county to attend to such matters as a part of his official duties, made so by sec. 3433, Stats. 1898, which provides that when it appears from the return to a writ of habeas corpus that the person seeking to obtain his liberty is detained upon a criminal accusation, no order shall be made for his discharge until opportunity shall be given to the dis*222trict attorney of the county to be beard, if to be found within the county; and because such provision is exclusive of the right of the sheriff to employ counsel at public expense. The case must be read in the light of what was under consideration, that is, the right of the sheriff to employ counsel at public expense. There is nothing in that to militate against a person other than the district attorney standing in court as the representative of the people in a civil action by consent of the public attorney. No judicial policy with which we are familiar is thereby violated, nor any constitutional right. Such a representative cannot claim compensation for his services except as against the individual employing him. That is as far as the decisions of this court go. No reason is perceived why a reputable attorney in a mere civil action cannot be heard in court on behalf of the state by permission of the officer whose duty it is to stand responsible for the due protection of the public interests, without the violation of any right secured by the constitution or any law, to the person standing in the capacity of an adversary to the public in the proceedings. It has been the universal practice in this state to permit private counsel in this particular class of cases, as is abundantly shown by the decisions cited by counsel for the relator. In re Booth, 3 Wis. 1; In re Falvey, 7 Wis. 630; In re Pierce, 44 Wis. 411; In re Eldred, 46 Wis. 530; State ex rel. Dunn v. Noyes, 87 Wis. 340; State ex rel. Larkin v. Ryan, 70 Wis. 676; In re Rosenberg, 90 Wis. 581.
3. What has been said goes upon the theory that the state is the only party interested in habeas corpus proceedings adversely to the petitioner, when the person alleged to be wrongfully restrained of his liberty is detained upon a criminal charge; but, as indicated in the brief discussion of the first proposition, we cannot agree with the learned counsel for defendants in error that the respondent in such a proceeding is not a party thereto. The issuance of a writ of *223habeas corpus is to all intents and purposes the commencement of a civil action, not an action strictly so called, within the meaning of sec. 2629, Stats. 1898, to be commenced by the issue of a formal summons, but in the same sense that proceedings to enforce the remedy by mandamus and proceedings by writ of error are civil suits, as has been repeatedly held. The issuance of the writ is the commencement of a proceeding in a court of justice for the enforcement or protection of a right within the meaning of sec. 2595. In Ex parte Tom Tong, 108 U. S. 556, the issuance of the writ of habeas corpus was denominated the commencement of a suit to enforce a civil right. That was said in the same sense that this court declared, in Paine v. Chase, 14 Wis. 653, that the issuance of a writ of error is the commencement of an original suit and regarded as the commencement of an action, and in the same sense that it was said, in State ex rel. G. B. & M. R. Co. v. Jennings, 56 Wis. 113, that a proceeding by mandamus is essentially a suit. True, the issuance of either of the writs mentioned, as before indicated, is not the commencement of an action strictly so called within the meaning of the Code, because it is there declared that all remedies in courts of justice are divided into actions and special proceedings (sec. 2594, Stats. 1898) and that a civil action shall be commenced by the service of a summons (sec. 2629). But the grant of power to circuit courts* to issue writs of habeas corpus and mandamus, among other common-law writs, contemplated their use for the purposes they were devoted to before the adoption of the Code, i. e., for the commencement of suits within the broad meaning of the term; and their essential character in that regard has not been and cannot be changed by any legislative enactment. Whether the issuance of such a writ be called by the Code the commencement of a civil action or a special proceeding, it is to all intents and purposes the commencement of a suit and the final determination thereof is a final judgment in a suit or *224proceeding in the nature of a civil action. In Holmes v. Jennison, 14 Pet. 540, 564, Chief Justice Taney said: “ If a party is unlawfully imprisoned, the writ of habeas corpus is his appropriate legal remedy. It is his suit in court to recover his liberty.” The court further said, in effect, that the term “ proceedings in a suit ” and the term “ proceedings in an action ” are synonymous; that when a law confers, in general terms, jurisdiction upon an appellate court to review on writ of error the final judgment in any suit, it includes jurisdiction to review the final determination in habeas corpus proceedings.
It follows from what has been said that the habeas corpus proceedings in question must be regarded as a civil action— an ordinary proceeding in a court of justice to enforce a personal right,— within the meaning of sec. 2595, Stats. 1898, which says that such a proceeding is an action. That is in harmony with the decisions of this court to the effect that, without any statutory regulations, a writ of error lies to review a final determination on habeas corpus (State ex rel. McCaslin v. Smith, 65 Wis. 93), and with State v. Kemp, 17 Wis. 669, and cases which followed it, denying to the state the use of the writ of error in criminal cases. That rule was one of judicial policy only, in a field where it was supposed the court was free to establish the law for this state, and has been abrogated by statute (sec. 3043, Stats. 1898). This was the suit of the defendants in error and their only adequate remedy to vindicate their right of personal liberty. The immediate instrument of the wrong complained of was the sheriff of Milwaukee county. The petitioners for the writ sought to establish their right to personal freedom notwithstanding the commitment under which the sheriff justified his conduct. They were, to all intents and purposes, plaintiffs, within the meaning of sec. 2601, regardless of the name by which such parties are' commonly known. The adverse party on the record was the sheriff. He was *225to all intents and purposes the defendant in the proceedings, regardless of the name by which such a party is commonly known. The statute (sec. 2595) says: “An action is an ordinary proceeding in a court of justice by which a party prosecutes another party for the enforcement or protection of a right,” and unless the state is the plaintiff and the proceeding is against the defendant for the punishment of a criminal offense, it is a civil action, and every person necessary to a complete determination of the controversy as against the plaintiff is a necessary party and an interested defendant. Sec. 2603. The term “party to a suit [or action] ” applies as properly to persons seeking, by writ of habeas corpus, to vindicate their right to personal freedom, and to the adverse party who is restraining them of it, as to contestants upon .the record in any other suit. The former are persons seeking to establish their legal rights; the latter, persons on whom it is sought to impose an immediate duty or liability to recognize such rights. 15 Ency. of Pl. & Pr. 463.
Upon the district attorney was imposed the duty of guarding the interest of the state, but he had no duty to perform by virtue of his office for the sheriff as an individual. The latter was a party, and an interested party, because he was charged with being guilty of the particular wrong which it was the purpose of the writ to redress; hence the law must be construed as according to him the same right as to any other party to be heard by counsel. True, as counsel for defendant in error say, sec. 3436, Stats. 1898, protected the sheriff from any liability for obeying the order discharging, or directing a discharge of, the prisoners, but there is no statute protecting him from liability for the wrongful imprisonment.
We are not unmindful that there are decisions to the effect that an adjudication in habeas corpus proceedings is not binding in a subsequent suit to vindicate the same right be*226tween the parties, or a suit between such parties where the same question is material. In re Quinn, 2 App. Div. 103; People ex rel. Lawrence v. Brady, 56 N. Y. 182; Hurd, Habeas Corpus, § 386. That doctrine was based on a supposed com mon-law rule that a decision on habeas corpus is not subject to review on appeal or writ of error. Such doctrine has been modified by judicial policy in many jurisdictions and in others displaced by statute, as it has been in this state, so far as it before prevailed here. Church, Habeas Corpus (2d ed.), 577; Ex parte Cuddy, 40 Fed. Rep. 62; Perry v. McLendon, 62 Ga. 598; Ex parte Jilz, 64 Mo. 205. Sec. 3437, Stats. 1898, which is the same as the Missouri statute that governed Ex parte Jilz, expressly changed the common-law rule as regards the effect of a final determination of a habeas corpus proceeding. It expressly prohibits the commencement of a second habeas corpus proceeding for the same cause, while the determination in the first remains un-reversed. That, and the remedy for a review of such a final determination by writ of error sued out by either party to the writ, which is given by our statute (sec. 3043), effectually changed the common-law rule, so that the doctrine of res adyudiaata has now the same applicability to habeas corpus proceedings as to other suits.
We have not overlooked the suggestion that the doctrine that ruled McCarty v. Sup’rs of Ashland Co. 61 Wis. 1; People ex rel. Breslin v. Lawrence, 107 N. Y. 607; and Bryant v. Thompson, 128 N. Y. 427, and some other cases, applies to the status of a person defending against the charge in habeas corpus proceedings of unlawfully restraining another of his liberty. That doctrine is that a person or tribunal, exercising judicial functions between parties, is not a party to a proceeding to challenge a decision made by him so that he may himself take an appeal or be a party to an appeal involving such decision. In McCarty v. Sup'rs of Ashland Co. a decision of the board of supervisors had been reversed on *227writ of certiorari and the board attempted to appeal. In People ex rel. Breslin v. Lawrence a judge whose decision of a matter had been reversed on cerUorari attempted to appeal. The mere statement of the circumstances under which courts have applied the doctrine referred to is sufficient to show that it has no application here.' If the court that heard the habeas corpus proceedings or the examining magistrate were here claiming to be a party to the writ of error, and demanding an opportunity to be heard, the cases cited by counsel would be in point. It has been repeatedly held that a person or body not acting in a judicial capacity, but a party to a judicial proceeding as a representative of the public, even-though having no pecuniary interest in the litigation, has an appealable interest in a judgment adverse to his or their authority. State ex rel. School Dist. No. 2 v. Wolfrom, 25 Wis. 468; Moede v. Stearns Co. 43 Minn. 312; People v. Jones, 110 N. Y. 509.
What has been said, it seems, covers every suggestion that has been made why the sheriff of Milwaukee county was not entitled to be heard by counsel in the circuit court in the habeas corpus proceedings and why he is not entitled to be heard in this court as a party to the writ of error. He was and is a party in every sense of the word, and is, so far as concerns himself, entitled to be heard by counsel of his own choosing.
The first question on the merits is, Does the warrant of commitment state any offense known to the laws of this state? That involves an inquiry into whether a statement of the facts — necessary to the jurisdiction of the offense, if there be one, and in substance that the person named in the commitment on a particular day named, was brought before the court charged on oath with committing the offense of conspiring to injure, and that such court, from the examination had, was satisfied that the offense charged had been committed and that there was reasonable ground to *228believe such person guilty thereof — shows an adequate cause for holding such person for trial. Defendants in error claim that it does not, because it fails to show, in detail, the existence of the facts necessary to constitute the offense of conspiring to injure, with some • approach at least to the technical accuracy of an indictment at common law, so as to identify the alleged wrongful conduct with either the common-law offense of conspiracy or the offense stated in sec. 4466a, Stats. 1898. Counsel do not state the rule of certainty by which they contend the commitment should be tested in the exact language we have used, but it seems from their reasoning that what has been said fairly expresses their contention. They say the warrant was fatally defective because it did not show with whom the person named therein conspired, nor the fact that there was more than one guilty participant so as to make a combination possible; that it failed to state the facts constituting the offense; that it omitted to recite that the alleged combination was entered into for the purpose of wilfully and maliciously injuring another; that it did not literally follow the statute; and that it did not conclude with the words “ against the form of the statute in such case made and provided.”
We do not understand that any such degree of certainty in a commitment as that contended for is required. Authorities may be found here and there tending to support counsel’s contention; for example Ex parte Branigan, 19 Cal. 133, cited to our attention, which is contrary to later decisions made by that court and out of harmony with the current of authority, as we shall show. The general rule is that it is sufficient, in a commitment for trial, to state with reasonable clearness the nature of the offense with which the person is charged, and conclusions of fact in general language, justifying his detention on such charge; that a statement of the specific facts in detail, on which the charge is based, is unnecessary. A multitude of authorities to that effect *229might be cited, commencing with the older books and coming down to date. In Collins v. Brackett, 34 Minn. 339, the offense charged was one created by statute. The particular section was not referred to, nor were the facts essential to the -offense stated in detail; but there was sufficient in the commitment to clearly indicate the kind of offense for which the accused was held to answer, and sufficient to indicate by reasonable inference the statute creating the offense. The court said that it satisfied the rule of convenient certainty by which such instruments are to be tested; that it pointed by reasonable inference to the statute creating the offense, and therefore, by reasonable inference, stated everything necessary to the offense which was not specifically set out. ‘It was not necessary,’ said the court, ‘in such an instrument, to set forth the facts constituting the offense particularly. . . . It is impossible to construe the commitment as referring to any other than the statutory offense. While it does not set forth every ingredient in such offense, it contains specifications enough to indicate the general nature of the crime charged, and that is sufficient.’ In State v. Everett, Dud. (S. C.), 295, a case often referred to by courts and text-writers, the commitment considered merely described the offense as the crime of larceny, no fact being stated essential to that offense; yet it was held, on habeas corpus, that the commitment was sufficiently certain to justify the officer in detaining the prisoner; that it is a great mistake to suppose that such a warrant need enumerate any fact or circumstance accompanying the offense, the nature of which is set forth therein; that it is sufficient to merely state the offense with convenient certainty; that it should not be for felony generally, but that the instrument should indicate the special nature of the felony. That decision is in harmony with the authorities generally, though directly contrary to Ex parte Branigan, supra, which supports counsel’s views as we have before indicated. All the cases cited, *230it will be found, declare for the rule of convenient certainty merely. Rut while the California case regards that degree, as it seems, to call for certainty to a certain intent in particular, it is obvious that convenient certainty is satisfied where language is used which, by reasonable inference, points with reasonable clearness to the particular subject intended to be expressed. The doctrine which we say generally prevails was followed in later California cases. Ex parte Moan, 65 Cal. 216; Ex parte Walpole, 85 Cal. 362. True, reference is there made to a form for commitment prescribed by statute, which is however substantially identical with the one which, it is said in sec. 4774, Stats. 1898, may be used. The California court, in the early case, while reaching a conclusion directly opposite to that declared in Collins v. Brackett, supra, and the cases to which we will presently refer, referred to the same authorities for support, i. e., 1 Chitty, Crim. Law, 109, and 2 Hale, P. C. 122. A careful reading of those authorities discloses the fact that what is said about the higher degree of certainty is merely advisory. "When it comes to the necessities of the case the lower rule is stated with many illustrations. For example, quoting from 1 Chitty, Cr. Law, 111:
“ It is necessary to set forth the particular species of crime . , . with convenient certainty. ... If the commitment be for felony it ought not to be generally for felony, but it must contain the special nature of the felony briefly; as for felony of the death of J. S. or for burglary in breaking the house of J. S., etc. But though it was formerly thought otherwise, it appears now to be settled, that a commitment for high treason, or suspicion of treason generally, or for treasonable practices, without stating any overt act or other particulars of the crime is sufficient. And . . . there are precedents of commitment for felony in general in good authors, without stating the specific accusation. So in Wilkes'1 Case, 2 "Wils. 153, 159, a commitment for publishing ‘ a most infamous and seditious libel entitled “ The North Britons,” Number 45, tending to inflame the minds and alienate the affection of the people from his Majesty, and to *231excite them to traitorous insurrections against the government,’ -was held sufficient, though it was urged that the libel ought to have been set forth, in order that the court, on a habeas eorjpus, might be able to fix the quantum of bail. So it has been held that a commitment which charged thé party generally with insulting justices of the peace in the execution of their office, without specifying what he said or did, is .sufficient. It is, however, in general advisable to describe the offense concisely but m substcmce as in an indictment.”
There is obviously a wide difference between what is advisable and what is necessary in such cases. It would be a mistake to adjudicate rights upon the basis of what is merely advisable, losing sight of the necessities of the case. Ye cite the following additional authorities sustaining the view expressed: Matter of Howard, 26 Vt. 205; People v. Johnson, 110 N. Y. 134; Ex parte Willoughby, 14 Nev. 451; People v. Gray, 67 How. Pr. 456; State v. Killet, 2 Bailey, Law, 289; In re Kelly, 46 Fed. Rep. 653; 4 Ency. of Pl. & Pr. 577, 578, and cases cited.
It follows from what has been said that if the general statement in the commitment, in its literal sense or by reasonable inference, points clearly to the offense intended to be charged, and such offense, so called, is one in fact, for which an accused person can properly be held, the commitment was a complete defense to the habeas corpus-suit till overturned by some defect of a jurisdictional nature in the proceedings upon which it was based, unless it was fatally defective by reason of the statute (sec. 4774, Stats. 1898). As we have seen, the description .of an offense well known to the law, by its generic name, as the offense of arson, burglary, larceny, or murder, by reasonable inference indicates the existence of all the essentials of the offense. That is just as true of a mere statutory offense when it has a name which individualizes it and points with reasonable certainty to the statute on the subject. In re Kelly, 46 Fed. Rep. 653; Collins v. Brackett, 34 Minn. 339; and People v. Johnson, 110 *232N. Y. 134, fully cover that question. Applying that rule to the commitment in question, no difficulty whatever is perceived. It says the accused was charged with having committed, on a day named, the offense of conspiring to injure. The use of the term “ conspiring ” suggests without possibility of doubt that two or moré persons were concerned in the offense. The only law in this state making a mere agreement between two persons to do an act injurious to another under any circumstances an offense is sec. 4466a, Stats. 1898. Therefore the language “the offense of conspiring to injure,” with reasonable clearness refers to such statute. It includes, by inference, a statement of all the facts necessary to satisfy the calls of the statute. The statement of the name of the crime states with convenient certainty the nature thereof and of course suggests the existence of facts necessary thereto. The general statement includes the details, if such general statement is sufficient to suggest ■them with reasonable clearness. A commitment so drawn as to satisfy the degree of certainty thus indicated is sufficiently precise to satisfy every part of it and is according to the prevailing rule on the subject.
The idea advanced by counsel that the commitment is fatally defective for want of the preliminary words, “ against the form of the statute in that case made and provided,” can hardly be considered as being seriously urged. There was a time.when substance in judicial proceedings was in some respects sacrificed to mere form, or when mere form was considered to be as essential as substance; but in the progress of events the law has developed to a point so far away from such notions that they are regarded as obsolete. So long as the commitment shows that the accused was held for trial for a criminal offense, the unavoidable inference is that the act charged took place, if at all, contrary to law. Any mere formal statement of that, as a concluding phrase in the commitment, was wholly unnecessary. *233This court, in Nichols v. State, 35 Wis. 308, characterized a useless expression, similar to tbe one in question, as “ a mere .rhetorical flourish, adding nothing to the substance of the indictment,” and as wholly unnecessary in the absence of a constitutional or statutory mandate making it so. That was affirmed in Murphy v. State, 108 Wis. 111. There is no such mandate in the way as to the matter under consideration.
A suggestion is made by one of the learned counsel that-the commitment is void because it does not follow strictly the form prescribed by statute, and another says there is no statutory commitment for such a case. The first suggestion will be considered without deciding that the officer in this case was required to use the particular form referred to. Sec. 4740, Stats. 1898, requires a warrant to contain the substance of the complaint on which it is issued, and sec. 4774 prescribes a form of commitment for trial that “ may he used,” which indicates that the offense should be stated “ as in the warrant.” The rule is that where a form is prescribed by statute it must be strictly followed. That has been held to mean, followed with almost technical accuracy where the language of the statute so indicates. Keniston v. Chesley, 52 N. H. 564. But sec. 4774 does not so indicate, unless we read “ may ” as “ must ” or “ shall ” and give thereto its full meaning down to immaterial details. Nothing of the kind, we think, was intended. Streeter v. Frank, 3 Pin. 386, did not go that far. It dealt with a material omission from a statutory form. Sec. 4774 is open to a reasonable construction, requiring only that the form be followed strictly as to the substance of things, not literally. There is a difference between following a form literally and following it strictly. The former goes to minuteness of detail in mere matters of form, while the latter may be satisfied by the essential elements. In Streeter v. Frank one of those elements was omitted. The words in the form under discussion, “ state *234the offense as in the warrant,” taken in connection with the requirement that the warrant shall recite the substance of the complaint, mean no more than that it shall state the same offense as the one named in the complaint with > sufficient accuracy that its identity will appear with convenient certainty. What has been said on another branch of the case as to such degree need not be repeated. The complaint charged in general language, or attempted to do so, and also' by all the particulars, the commission of the offense to injure, going further in such particular than the specific offense, created or declared in sec. 4466a, though it is plain that such statute was what the complainant had in mind. The substance of the complaint was that the accused were guilty of having committed, on a day named, the offense of conspiring to injure, and that was substantially carried into the commitments.
If we were to hold that the commitments do not show with convenient certainty, within the rules above stated, that the defendants in error were imprisoned to await their trial upon a charge of having violated sec. 4466a, Stats. 1898, the circuit court none the less erred in discharging them, — • if the complaint upon which they were arrested charged an offense known to the law, and the record of the examination which the court had properly brought to its attention showed that there was evidence tending to support the charge on these two essentials: first, that the offense was committed; second, that there was probable cause for believing that the accused were guilty thereof,— regardless of whether the decision of those questions, or either of them,, by the committing magistrate, was right or wrong. That, was substantially the rule at common law, and it was preserved by the constitutional grant of power to circuit courts-to issue writs of habeas corpus, especially since there is no-statute in any way restricting the jurisdiction of such courts in that regard. So far as the statutes of this state treat the *235subject they confirm and broaden the common-law rule. Express provision is made for bringing to the notice of the court, in a habeas corpus suit to vindicate the right of a prisoner, detained for trial upon a criminal charge, to his personal liberty, the record of the examination including the evidence taken, and it is made his duty to examine such evidence, and, if thereby it appear to him that the accused is guilty of the offense, to commit him for trial or admit him to bail regardless of any irregularity in the original commitment. Sec. 3429, Stats. 1898; State v. Bloom, 17 Wis. 521. It is also the duty of the court on habeas corpus to examine the complaint, and discharge the prisoner if it does not state an offense known to the law; and to examine the evidence and treat the decision of the examining magistrate as outside of his jurisdiction if no competent evidence is found upon which such magistrate could properly have acted. That is well settled by the authorities. Church, Habeas Corpus, §§ 231, 236; Matter of Wadge, 21 Blatchf. 300; In re Luis Oteiza y Cortes, 136 U. S. 330; Nishimura Ekiu v. U. S. 142 U. S. 651; Ex parte Bollman, 4 Cranch, 75, 125. Whatever conflict apparently exists on this question in the books will be found on careful examination not to be a conflict in fact, but is explainable by reference to statutory regulations. We have no statutory regulations in conflict therewith, but on the contrary the statutes of this state substantially declare the common-law rule. True, at common law the writ of habeas corpus reached only jurisdictional defects; but, as the term is rightly understood, it goes further than counsel for plaintiffs in error seem to concede. Some courts use the term in the restricted sense of jurisdiction of the person and of the subject matter, while others, and those it is believed holding the correct doctrine, extend it to include excess of jurisdiction, treating a decision — other than one upon the trial of an issue — that a complaint is sufficient when it does not state any offense known to the law, or one *236that the essential facts exist warranting the commitment of a person for trial on a criminal charge, where there is no competent evidence for the judgment of an examining magistrate to reasonably act upon, as on the same basis as any other jurisdictional defect in the proceeding. That was early declared as the common-law doctrine and the one to be followed where there is no statute affecting the subject otherwise. Ex parte Bollman, supra. Chief Justice Mae-shall there said, after recognizing the distinction between imprisonment upon a final judgment and detention under a commitment to stand trial:
“ It is unimportant whether the comm