44 N.Y.S. 1100 | N.Y. Sup. Ct. | 1897
A nonresident relator having sued out writ of habeas corpus for the custody of his child, the respondent moves that he be required to give security for costs.
Any person imprisoned or restrained of his liberty, within the state, for any cause or upon any pretense, with an exception not in
Erom these provisions of the statute, as well as from the office and object of the writ of habeas corpus ad subjiciendum, the conclusion is obvious that nothing maybe interposed as a bar or impedir ’ ment to the allowance or operation of the writ in delivering from illegal detention. But, if security for costs may be exacted for the privilege of prosecuting the writ,, not only would a restriction upon its allowance be imposed without warrant, but its benefit be denied to the friendless and unfortunate — the class most in need of its protecting energies. Hence,- the proceeding upon a new writ may not be stayed for nonpayment of the costs of a former proceeding. People ex rel. Barry v. Mercein, 3 Hill, 399. Hence, too, the effect of a final order discharging the prisoner may not be suspended pending an appeal from the order. People ex rel, Young v. Stout, 10 Misc. Rep. 247.
While no authority is adduced in support of the motion, an express adjudication against, it is presented in State v. Lyon, 1 N. J. L. 403; 1 Coxe, 403.
I am unwilling in any manner or in any degree to impart: the efficacy of the most beneficial process of the law, but were I otherwise inclined, happily I should be without power to carry out such purpose.
Motion denied.