138 Ga. 409 | Ga. | 1912
The Savannah Guano Company brought an action of bail-trover against M. J. Stubbs, to recover certain described fertilizers and promissory notes. The sheriff made an entry that he had served personally the defendant, and demanded bond of
Upon a plaintiff in a trover suit filing an affidavit that the property is in the possession, custody, or control of the defendant, and that he has reason to apprehend that it will be eloigned or moved away or will not be forthcoming to answer the final judgment, it 'is the duty of the sheriff to seize the property; and if the property is not to be found, “the defendant shall be committed to jail, to be kept in safe and close custody until the said personal property shall be produced, or until he shall enter into bond with good security for the eventual condemnation-money.” Civil Code, § 5152. When a defendant “shall, by reason of his inability to give security, be held in imprisonment, it shall be lawful for him to make his petition “to the judge of the court where the suit is pending, stating that he is neither able to produce the property nor to give the security required by law, traversing the facts stated in the plaintiff’s affidavit, and giving satisfactory reasons why he can not produce
The statute authorizing bail in trover cases, being in derogation of common right, should be strictly construed. Sugar v. Sackett, 13 Ga. 462. The object of the bail process is simply to secure the forthcoming of the property to answer, in the manner authorized by law, for such recovery as may be had, or to get bond and personal security instead. Hudson v. Goff, 77 Ga. 281 (3 S. E. 152). Its purpose is not to punish a defendant for illegal acts in obtaining the property Ragan v. Chicago Packing Co., 93 Ga. 712 (21 S. E. 143). Indeed the theory of punishment does not enter into the statute, for the law is not to be construed as imposing a punishment upon a defendant in a civil case upon an ex parte affidavit, without giving him a hearing. Prior to the statute (Civil Code, § 5154), the production of the property, or entering into bond with good security for the eventual condemnation-money, was the only condition upon which the defendant could be discharged from custody. It was to ameliorate the harshness of the law in this respect-that an imprisoned defendant, unable to produce the property or give the bond, was permitted to apply for a discharge. The remedy was given to a defendant “held in imprisonment.” Imprisonment is not confined to the act of putting a man in prison; it is a restraint of a man’s personal liberty. Says Mr. Black in his Law Dictionary, at page 597: “It is not a necessary part of the definition that the confinement should be in a place usually appropriated to that purpose; it may be in a locality used only for the specific occasion; or it may take place without actual application of any physical agencies of restraint (such as locks or bars), but by verbal compulsion and the display of available force.” It is true that when the statute was enacted the law provided for a commitment of the defendant to jail; but the remedial statute broadly extends
Of course the restraint must be something more than a feigned custody; not a collusive arrangement between the officer and the defendant. The court was authorized to find under the facts submitted that the defendant was actually restrained of his liberty by the sheriff by virtue of the bail-trover proceeding. The defendant testified that he was unable to produce the property or to give the bond; and this was not controverted on the trial. The judgment of the court discharging him on his own recognizance will therefore stand Affirmed.