Savannah Guano Co v. Stubbs

• Citation: 75 S.E. 433,138 Ga. 409
• Parties: SAVANNAH GUANO CO. v. STUBBS.
• Decision Date: 11 July 1912
• Court: Georgia Supreme Court

75 S.E. 433

(138 Ga. 409)

SAVANNAH GUANO CO.

v.STUBBS.

Supreme Court of Georgia.

July 11, 1912.

(Syllabus by the Court.)

1. Arrest (§ 48^*)—Bail Trover—"Imprisonment."

A defendant in a bail trover proceeding, who is in the actual custody of the sheriff, though not confined in jail, is "held in imprisonment, " and may apply, under the Civil Code, § 5154, for a discharge upon his own recognizance.

[Ed. Note.—For other cases, see Arrest, Cent. Dig. §§ 112-114; Dec. Dig. § 48.*

For other definitions, see Words and Phrases, vol. 4, pp. 3445-3447.]

(Additional Syllabus by Editorial Staff.)

2. Words and Phrases—"Imprisonment."

Imprisonment is not confined to the act of putting a man in prison; nor is it necessary to constitute imprisonment 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, as by verbal compulsion and the display of available force. Any restraint of a man's personal liberty constitutes "imprisonment."

Error from Superior Court, Tattnall County; W. W. Sheppard, Judge.

Action of bail trover by the Savannah Guano Company against M. J. Stubbs. Application by defendant for discharge on his own recognizance. From an order granting such relief, plaintiff brings error. Affirmed.

Anderson, Cann & Cann, of Savannah, H. C. Beasley, of Reidsville, and Thos. F. Walsh, Jr., of Savannah, for plaintiff in error.

P. M. Anderson, of Hagan, and H. H. Elders, of Reidsville, for defendant in error.

EVANS, P. J. 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 him, which he failed to give because of his poverty, and that he had him in custody. The defendant applied to the court to be discharged on his own recognizance. The plaintiff pleaded in abatement that the defendant was not entitled to be discharged, for the reason that, neither at the time of his application, nor at any other time, had he been committed to jail, and there kept in safe and close custody, as required by law. The plaintiff also had the sheriff made a party, and traversed his entry of service that the defendant was in his custody. Upon the hearing of the issue joined on the plea and traverse, the applicant for discharge submitted evidence tending to show that he was arrested by the sheriff. He was not confined in jail, but put in the custody of a deputy sheriff, by whom he was kept under guard and surveillance from the time of his arrest until the trial of his application for a discharge from custody. The sheriff testified that the common jail of the county had two cells for male prisoners, which were occupied by seven negro prisoners, and two cells for female prisoners, one of which was occupied; and that he did not put the defendant in jail because of its condition. The jail was not ventilated; the waterworks were out of repair; and it was in no fit condition to confine a white man. The court overruled the traverse and plea in abatement, and, upon the defendant making it appear that it was not within his power to produce the property or give the statutory bond, he was discharged by the court.

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 cannot produce the property, and praying for his...