87 N.J.L. 362 | N.J. | 1915
The opinion of the court was delivered by
The plaintiff recovered judgment in an action
for breach of promise of marriage, and thereupon obtained an order from a justice of this court that a fieri facias and capias ad satisfaciendum issue for the amount of judgment and costs. The ease was tried before a circuit judge. His postea shows only that the jury rendered a general verdict against the defendant and in favor of the plaintiff for $2,500. Ho capias ad respondendum had been issued; the suit was begun by an ordinary summons and no proofs are shown to have been presented to the trial judge to warrant a capias ad satisfaciendum,. His -order recites that the plaintiff declared against the defendant for breach of promise and seduction under promise of marriage; that it appears of record that the defendant was convicted upon the trial of the issue joined and damages assessed against the defendant, in the sum of $2,500. If the action sounds in tort, a capias ad satisfaciendum was proper. Kintzel v. Olsen, 73 Atl. Rep. 962. If it sounds in contract, the statute (Comp. Stat., p. 4109, pl. 189) forbids a capias ad satisfaciendum except (1) where a,n order to hold to bail has been made and remains in force; (2) upon proof to- the judge or commissioner, to be certified and filed in the office of the clerk establishing (a) the facts on which the plaintiff would be entitled to an order to hold to bail; (b) that the defendant- has rights or credits, moneys or effects, of $50 or over, which he unlawfully refuses to apply in payment of the judgment.
The first question is whether the action sounds in tort, for we cannot agree with counsel for the plaintiff that as all actions are now called actions at law, the distinction between tort and contract is abolished. It is only the name of tire actioned that is changed. ' The substance remains and rules of law that were applicable before the change of name remain applicable still. Tf we could concede the plaintiff’s
We are not by our silence to- be considered as approving the practice which the order seems to contemplate of combining a fieri facias and a capias ad satisfaciendum, in the same writ.