On appeal from a judgment of the Middlesex County Court of Common Pleas.
For the appellant, Adolph L. Engelke.
For the respondent, Edmund A. Hayes.
Before Brogan, Chief Justice, and Justice Heher.
The opinion of the court was delivered by
HEHER, J. Plaintiff recovered a money judgment against one Polikan. The sheriff of the County of Middlesex arrested the judgment debtor under a writ of capias ad satisfaciendum issued thereon, and thereafter discharged him from custody upon the delivery of what the debtor considers an inventory and bond in keeping with the provisions of the act relating to insolvent debtors. R.S. 1937, 2:35-1, et seq. Asserting a failure of compliance in several particulars with the requirements of that statute in the proceedings thus taken by the debtor to effect his liberation, and the judgment remaining unsatisfied, plaintiff instituted this action against the sheriff under R.S. 2:52-1, 2:52-2, 2:52-3, to recover the judgment debt on the hypothesis that thereby the sheriff permitted the debtor to escape. The debtor was later discharged in the Middlesex Court of Common Pleas. The judgment creditor did not appear at the hearing on the petition, nor interpose objection to his discharge.
In the instant action the facts were stipulated. The holding was that there "was a substantial compliance" with the demands of the statute, and judgment was accordingly entered for defendant.
First: In the inventory thus delivered to the sheriff, the judgment debtor demanded his discharge "in accordance with the provisions of 'An act for the relief of persons imprisoned on Civil Process' (Revision of 1877)," and the bond contains a recital of the delivery of the inventory under that statute. The insistence is that the Revision of 1937 impliedly repealed the act of 1877, and that, since it was "expressly founded" on the earlier statute, the "application" for a discharge is a nullity. The point is not well-made.
The legislature has ordained that the provisions of the Revision of 1937, "not inconsistent with those of prior laws, shall be construed as a continuation of such laws." R.S. 1937, 1:1-4. The Revision of 1937 embodies the essence of the cited act of 1877. The evident intention was to invoke the current statute. It was plainly identified by a reference to its original descriptive title; and there was a design to satisfy its requirements. The reference to the source of the act did not under these circumstances serve to nullify the proceedings. There is no contention of fraud or prejudice.
Second: It is also urged that the inventory is fatally deficient in that the jurat does not reveal "the official character in which" the subscriber "administered the oath" to the petitioning debtor. We think not.
The signer of the jurat was in fact a master in Chancery and administered the oath in that capacity. As such he signed the jurat to the surety's justification annexed to the bond. The omission from this certificate of the subscribing officer's authority is of no moment unless the statute makes it essential to the validity of the affidavit. Magowan v. Baird, 53 N.J. Eq. 656; Fitzsimmons v. Board of Education of Carteret, 125 N.J.L. 15. This statute does not so provide.
Third: The next insistence is that the paper purporting to be the bond is not such "because neither ...