Gaulkin, Foley and Lewis. The opinion of the court was delivered by Lewis, J.A.D.
Plaintiff Robert J. Hamilton appeals, with leave of this court, from an interlocutory order quashing a writ of capias ad respondendum and discharging defendant Sidney Schwadron from civil bail.
In Hamilton's affidavit verifying his complaint it is alleged in substance: On October 11, 1962 plaintiff was induced to purchase a lady's diamond ring from Schwadron for the sum of $6,500. He relied upon defendant, the seller, who held himself out to be an expert in diamonds and who represented that the ring was readily resalable on the retail market for $8,000 to $9,000. The purchase price was paid by cash of $3,500 and a ring delivered in trade at an agreed value of
$3,000. A subsequent appraisal revealed that the ring he had purchased was worth only $5,500. On January 29, 1963 plaintiff delivered it back to Schwadron for the purpose of receiving from him, on or before January 31, 1963, a refund of $6,500 or a diamond ring having a true value of that amount; otherwise, the ring was to be returned. Defendant failed to perform any of said conditions and, notwithstanding demands made upon him, he "wilfully and maliciously" withheld said ring "and has at all times refused and neglected to deliver up the same."
Although not mentioned in the complaint, Hamilton's affidavit further stated:
"I am informed by Albert A. F. McGee that he called the present place of employment of Sidney Schwadron on Thursday, June 20, 1963 and said Sidney Schwadron had not come to work that day, had not called in, and was otherwise unaccounted for thus showing an intention on the part of defendant to remove from the State of New Jersey."
Parenthetically, we note that such an assertion, which was corroborated by McGee, would not furnish a basis for the issuance of a capias in an action founded upon tort as contemplated by N.J.S. 2A:15-41(c). It was insufficient evidence to meet the statutory requirement of clause (c) that "defendant is a nonresident or is about to remove from the state." The mere conclusion of an affiant that an alleged debtor is about to abscond from the jurisdiction will not warrant the circumscription of human freedom. Clyde v. Parillo , 25 N.J. Misc. 492, 55 A. 2 d 810 (Sup. Ct. 1947). Compare Fidelis Factors Corp. v. DuLane Hatchery, Ltd. , 47 N.J. Super. 132 (App. Div. 1957).
On the day the complaint and supporting affidavits were filed (June 26, 1963), a judge of the Superior Court, Law Division, judicially determined that plaintiff's "demand is founded in contract and that the said defendant fraudulently incurred said obligation." An order was thereupon entered that a writ of capias ad respondendum issue and that defendant be held to bail in the sum of $6,500.
On July 1, 1963 Schwadron moved to quash the writ and discharge the bail order. At the hearing on the motion (July 8, 1963), defendant did not produce any testimony, by deposition or otherwise, as he is permitted to do under R.R. 4:66-3(a). The trial judge, temporarily assigned to the Superior Court, adjudicated that plaintiff's proofs did not establish that Schwadron had committed "a fraud as a ground under 2A:15-42," and accordingly he granted defendant's motion. On appeal, it is urged that the trial court erred in its disposition of defendant's motion and that the original order to hold to bail should be reinstated.
Plaintiff contends that a capias arrest is authorized by N.J.S. 2A:15-42(d) under circumstances where, as here, an action is based upon contract and the proofs establish "that defendant fraudulently contracted the debt or incurred the demand."
Schwadron argues that his challenged representations to plaintiff related only to the value of a particular article and that R.S. 46:30-18 (see Uniform Commercial Code N.J.S. 12A:2-313(2)) specifically provides, "No affirmation of the value of the goods, nor any statement purporting to be a statement of the seller's opinion only, shall be construed as a warranty." That ...