Broomhead v. Chisolm ( 1872 )

Montgomery, Judge.

1. Every Judge whose duty it is to grant the writ of habeas corpus, must do so when “any person shall apply for” it: Code, 3955. The Judge of the City Court of Atlanta, then, was obliged to grant the writ. The respondent before answer- ■ ing it brought the person held in custody within the city limits, but claimed in his answer that be only brought him in, in response to the writ, and therefore, the Judge had no jurisdiction. What might have been the decision had the respondent declined to bring the prisoner within the city, we do not say. Having brought him before the Judge in obedience to the writ, we are not disposed to scan too criticaliy the mode in which he got there, but hold that being there, the Judge had authority to pass such order as the nature of the case required.

2. We think the better practice when an alternative sentence of fine or imprisonment is passed, is for the Judge who sentences, to fix some reasonable time within which the prisoner may pay the fine. If that is not done, as in this case it was not, the prisoner is entitled to a reasonable time within which to pay the fine. Under the facts in this case, we think the fine was tendered and paid within a reasonable time. Its acceptance, at all events by the officer whose duty it was to receive it, entitled the prisoner to his discharge. If the Court may grant reasonable time where the fine is peremptory (Oode, 4565,) much more should reasonable time be allowed where the fine is alternative.

3. We see no error on the part of the Judge in receiving the official receipt of the clerk for fines and costs as prima facie evidence of payment. If not true, it could easily have been rebutted.

4. The contract between the Ordinary and respondent would have been very good evidence for the respondent, up to the time the fine was paid. After that time, it could only show that he once held the prisoner in lawful custody. The question for the Judge of the City Court was, do you now hold him in lawful custody ?

5. Section 4303 of the Code requires a bill of exceptions to be presented to the Judge before he grants a supersedeas.

6. Any person may petition for the writ of habeas corpus in behalf of one imprisoned. The Code says, section 3933: “ Any person alleging that another, in whom, for any cause, he is interested, is restrained of his liberty, etc., may sue out a writ of habeas corpus.” Interest arising from humanity-alone comes within both letter and spirit of the section.

3udgment affirmed.