| Ala. | Dec 22, 1910
While section 7007 of the Code of 1907, authorizes the prosecution of the writ of habeas corpus by any person who is “imprisoned or restrained of his liberty in this state, on any charge or accusation or under any other pretense whatever,” except when
Here the writ in question is directed against the clerk, and who was called upon to produce the body of the petitioner, yet it was clear he had no custody or control over petitioner, other than the mere imaginary implication of a custody or control because of the fact that he had, as clerk, approved the bond of petitioner for his appearance pending the appeal to the Supreme Court. An actual or physical restraint, and not a mere moral one, is necessary to warrant interference by ha-beas corpus; but any restraint which precludes freedom from action is sufficient, and actual confinement in jail is unnecessary. Persons under bail are not restrained of their liberty, so as to be entitled to a discharge on habeas corpus. — 21 Cyc. 289, and cases cited in note 41; 15 Am. & Eng. Encyc. of Law, 159, and cases cited in note 3. Indeed, we do not find a case in the books holding that a person out under bail is so restrained as to entitle him to the writ.
The Cases of Snodgrass, 43 Tex. Crim. 359" court="Tex. Crim. App." date_filed="1901-12-18" href="https://app.midpage.ai/document/ex-parte-snodgrass-3972718?utm_source=webapp" opinion_id="3972718">43 Tex. Cr. R. 359, 65 S. W. 1061, and Foster, 44 Tex. Cr. R. 423, 71 S.W. 593" court="Tex. Crim. App." date_filed="1903-01-28" href="https://app.midpage.ai/document/ex-parte-foster-3904189?utm_source=webapp" opinion_id="3904189">71 S. W. 593, 60 L. R. A. 632, 100 Am. St. Rep. 866, relied upon by the petitioner’s counsel, were not petitions by parties under bail. They were held by the sheriff wbn let them' go at large for certain limited purposes, and were under his control, and so he was at liberty to confine them
It appearing from the. record in the case at bar that the petitioner was merely under a bond to await the result of his appeal, and was not, therefore, in the custody of or restrained of his liberty by any one, we are of the opinion that the chancellor properly denied the writ, and the order in so doing is affirmed.
Affirmed.