Brown & Carmichael v. Way & TayLor

33 Ga. 190

• Court: Supreme Court of Georgia
• Decided: January 15, 1862
• Status: Published

Opinion

By the Court. —

Jenkins, J., delivering the opinion.

It is unnecessary to consider any but the third ground upon which the motion to discharge the bail pendente lite was predicated, viz: “ that the bail process pendente lite, was not signed by the Clerk.”

Process is a mandatory precept, issuing from a Court. The mandate is set forth in the body of the instrument, which we call a process, and this may be printed, or written out by any scrivener, but it is the signature of the proper officer which gives it efficacy. From the instrument itself, the person to whom it is addressed, or who is .to be affected by it, learns what is required of him; from the official signature he learns that it emanates from a Court authorized so to command him. The mandate, without the authenticating signature, is no more “process ” than would be the signature without the preceding mandate. This would seem sufficiently clear, and has been repeatedly held by this Court, regarding original process. By the Act authorizing bail pendente lite, the Clerk is the officer required to issue the process, and is, therefore, the proper officer to sign it. The record discloses the fact that the precept, which, With the Clerk’s signature, would have been the bail process in this case, had no signature; there was therefore no bail process pendente lite, and for this reason the motion should have been sustained. It is suggested, arguendo, that as the. defendant resided out of the count}r, there were probably a first and second original process, that the first original may not have been signed, and the second, under which the arrest was made, may have been signed, and that that would be sufficient. The answer is, we are governed by the transcript of the record.

Let the judgment be reversed.