Ex parte Whitehead

23 Ala. 93

• Court: Supreme Court of Alabama
• Decided: June 15, 1853
• Status: Published

Opinion

CHILTON, C. J.

This is an application by Whitehead to be discharged on habeas corpus from an alleged illegal confinement in the jail of Choctaw County, on proceedings had against him under the insolvent laws.

It appears that an application for a discharge was made be • foie His Honor C. W. Rapier, one of the circuit judges, by habeas corpus tried before him, and was refused, the judge holding, as appears from the facts certified by him to this court, that the giving of the bond authorized by section 2185 of the Code, which provides that the party may appeal to the Circuit Court upon enterring into bond Avith security, &c., conditioned that the defendant will appear at such court and abide its judgment, did not justify the defendant’s enlargement.

In our opinion, this is not a correct construction of that section of the Code; but we think it Avas intended that, upon entering into such bond, the defendant should be discharged, upon the security which it furnishes.

Let a writ of certiorari and also a writ of habeas corpus issue to bring the record and the prisoner before us, unless, under the opinion as above expressed upon the prima facie case as presented by the petition, the circuit judge, or other officer having cognizance of flip case, shall discharge the prisoner.