Ex parte Roe

1 Charlton 31

• Court: Chatham Superior Court, Ga.
• Decided: August 21, 1805
• Status: Published

Opinion

Present, his Honour Judge Jones.

Waller Roe,

being brought up under a habeas corpus this day issued; and it appearing by the return of Charles Cope, marshal of the city of Savannah, that he is detained in his custody under an order of John Y. Noel, mayor of the said city, of this date, in the words following :

“ The city marshal brought before the mayor Walter Roe, whom he had arrested under a writ in nature of an execution against the property and person of the said Walter Roe, for a fine inflicted under the quarantine law of this state ; the marshal at the same time laid before the mayor a certified copy of an order made by his honour Judge Jones directing, that the proceedings of the city council be suspended until Friday next: whereupon it is ordered that the city marshal take bond with security from the said Walter Roe for his appearance personally before the city council on Monday next; ⅛6 mayor entertaining doubts as to the power of the Judge ⅝ make any order for suspending the proceedings of the corporation ; considers it his duty to make this order to ihe marshal, that the corporation may hare an opportunity of deciding whether they consider their proceedings subject to be suspended by a Judge of the Superior court.

“John Y. Noel, Mayor.”

August 22, 1805.

And whereas it appears by an affidavit of Richard M. Stites, Esq. in the words following, viz. : “ Georgia, — Richard M. Stites, being duly sworn, maketh oath, that he served Charles Cope, Marshal of the city of Savannah, on Wednesday the 21st of August inst. with a certified copy of Judge Jones' order, on the application of U alter Roe, for a certiorari to remove the proceedings of the city council on a fine against the said Roe of fifty dollars, for a breach of the quarantine laws, and at the same time gave him a bond of the said Roe's, with Edward L. Davis as his security, in the penal sum of one hundred dollars, conditioned to pay to the city council of Savannah fifty dollars, and to abide the order of his honour the Judge of the Superior Court, in case the certiorari was refused, and also tendered him two dollars thirty-seven and a half cents, his fees and the costs on the city warrant; and on the same day served Thomas Whitefield, the Recorder of the city, with a certified copy of said order, and the grounds •on which this deponent would rely in the motion for a cer-tiorari, and in all things complied with the said order. That the said Charles Cope received the said certified copy of the judge’s order suspending all proceedings, until the arguments should be had on Friday the 23d instant, on the motion for a certiorari, and also received the bond of said Walter Roe and Edward L. Davis, but refused at that time to take his fees on the costs of said warrant; and that on this day about 9 A. M. he actually took into his custody the body of the said Walter Roe, on the aforesaid warrant, notwithstanding this deponent cautioned him against such a proceeding.

“ Sworn before me this 22d of August, 1805.

“ Richard M. Stit.es.”

George Jones.

That a certified copy of the order of the 21st instant had been served on the said Charles Cope, City Marshal, aforesaid, and a bond with security given by the /said Walter Roe to the said City Marshal, and that the said City Marshal did notwithstanding afterwards, to wit, on this 22d day of August instant, actually take into his custody the body of the said Walter Roe, on a warrant issued by J. M. Wilson, Clerk of the said city, bearing date the 19th day of the present month, August, being two days anterior to the order and subsequent proceedings thereon, and now holds him under the aforesaid order of John F. Noel, Mayor as aforesaid. Whereupon, it is considered that the said Walter Roe is illegally detained by the said City Marshal, and is therefore discharged from his said custody ; and that the said Walter Roe do appear at 12 o’clock to-morrow, the 23d instant, at the Court House, before me, and in all respects comply with the conditions of his said bond given to the City Marshal in terms of the order of the 21st instant; otherwise incur the penalty of such his failure ; and it is further ordered, that the recorder be served with a copy of this order.