Bromley v. Town — 1 Hill & Den. 373

Majority

p. 373

Bromley vs. Town.

Headnote

A defendant cannot be held to bail without a judge’s order, in an action on contract, (e. g. a promise of marriage,) where the damages can only be rendered certain by the verdict of a jury.

The revised statutes have changed the rule which prevailed when the case of Bunting v. Brown, (13 John. R. 425,) was decided.

Holding to bail. The defendant was arrested and held to bail in the sum of $2000, on a capias ad respondendum, in which the ac etiam clause was “ upon a promise of marriage,” but there was no judge’s order to hold to bail. On the defendant’s application, the recorder of Hudson, after an order to show- cause, &c. made an order discharging the defendant out of custody, on his filing common bail, or endorsing his appearance on the capias.

K. Miller, for the plaintiff, appealed from the recorder’s order, and moved that the same be vacated.

Sutherland fy McClellan, for the defendant, opposed the motion.

Although this is an action upon contract, the damages are neither certain, nor can they be reduced to certainty in any other way than by the verdict of a jury; and in such cases the defendant cannot be held to bail without a judge’s order. (2 R. S. 348, § 7, 8.) The. statute has changed the rule which prevailed when the case oí Bunting v. Brown, (13 John. R. 425,) was decided.

The act to abolish imprisonment for debt, (Statutes of 1813, p. 396,) does not touch the question. The second section merely excepts actions upon promises to marry from the operation of the first section, and leaves the question of bail in those actions as it stood before. As there was no order to hold to bail, the defendant was properly discharged from custody.

Motion denied.