Newton v. Bailey , 36 Ga. 180 ( 1867 )

Habéis, J.

Pending the action of slander, plaintiff below made his affidavit and applied to a Justice of the Inferior Court for an order to hold the defendant in the slander suit to bail. It was granted. The plaintiffs in error became bail for defendant below, and now when it is sought to charge them by sci. fa., they except to the order granting bail, the amount, etc. The power used by the Justice in granting bail, in cases sounding in tort, is conferred by statute. The affidavit, whilst it is perhaps not in as clear a form as it should have been, is distinct enough to furnish a foundation for the order to hold to bail. See Montigue vs. Leatr. 7 Ga., 366.

1. The objection that the Justice did not hear the facts previous to fixing the amount of bail, is assumed and supported by no testimony in the record — but we do not understand that such direction to the person applied to for the bail order was ever meant to require the officer to hear testimony pro and con — indeed, enter upon a'hniniature trial involving the supposed merits of the case, probabilities of recovery of damages and their amount, but an enquiry sufficiently wide into the pleadings and other matters connected with the^suit as would furnish him with 'criteria or means of fixing with fairness the amount of bail.

2. YYe cannot go behind the judgment in this case on sci. fa. to pronounce upon the question raised as to what should have been a proper amount. See Gilmore vs. Lidden, 23 Ga., 14.

3. The defendant in slander, during the progress of the suit, could have applied to the Judge of the Superior Court to reduce the amount of bail required and given, and we make no doubt that the Court would have reduced it if the case properly authorized the reduction. This objection comes too late.

4. But it is alleged that the bond in this case is not a bail bond, but a mere private contract between the parties, and that it has no connexion with the bail process, etc. It may be conceded, too, that this bond, like the affidavit, is deficient in form, yet it recites the pendency of the suit in Jackson Superior Court for words against Horton and for the recovery of $5,000.00, and to it is a condition for the appearance of Horton, or the payment of the eventual condemnation money, or judgment obtained in the case, etc. Is not its connexion with the bail process and the suit for loords sufficiently shown by these recitals to authorize us in treating this bond as a paper in the case ?

“ Id, certum est quod certum reddi potest ” is a trite old law maxim, but furnishes in itself a full answer to the last objection we have noticed. See Deboard vs. Brooks et al, 28 Ga., 365-

Objection was also made as to the return of the casa into office before the full period of time between the Courts had elapsed.

To fix bail, this is allowed. See Code, Sec. 3349.

The case in all respects is against plaintiff in error.

Judgment affirmed.