Hapeman v. Woolford — 1 Hill & Den. 202

Majority

p. 202

Hapeman vs. Woolford.

Headnote

Where it is intended to hold the defendant to bail in an action for a breach of a promise to marry, the ac etiam clause in the capias ad respondendum is Slifficient if it be in the ordinary form in assumpsit, thus—“ and also, &c. upon promises,” —without adding any thing indicating the particular nature of the promises.

Motion to set aside an order made by a commissioner, discharging the defendant from custody on filing common bail, and to amend the. ac etiam.

The action was instituted for breach of marriage promise, and a commissioner’s order obtained, on affidavit, to hold the defendant to bail. But the ac etiam was in the ordinary form in assumpsit: “ and also, &c. upon promiseswithout adding, “ to marry.”

The commissioner’s order to discharge was founded on this omission.

The defendant had given bail on his arrest; and the present motion was opposed'by his bail.

G. Humphreys, for the motion.

M. T. Reynolds, contra.

I do not see why the ac etiam “ on promises” is not sufficient, as comprehending a promise to marry. This is one of the cases excepted by the non-imprisonment act, (1 R. S. 808, 2d ed. § 2,) and therefore stands on the old law of bail. By that, “ no person shall be held to bail on a capias ad respondendum, unless the true cause of action be particularly expressed therein.” (2 id. 270, § 7.) This, however, calls for no more than the old forms of ac etiam; and I am not aware that the one in question) which was the usual form in assumpsit, has ever been held to come short of sufficiently expressing a promise to marry. The statute might be so construed as to require the whole substance of the declara

p. 203

tion; but under the like statute which existed previously, the only way to give it any practicable effect was found to be, by allowing á short intimation, such as may be found in- our books of practice. (Vid. 1 Sell. Pr. Introd. 35. 1 R. L. of 1813, 424, § 14.) Then, as now, an order was necessary to warrant the holding to bail, where the promise intended by the ac etiam was of marriage. The motion is granted; but without costs.

Rule accordingly.