Malone v. Ryan

14 R.I. 614

Opinion

Per Curiam.

We are of the opinion that the action of “ trespass on the case,” which warrants an arrest under Pub. Stat. R. I. cap. 206, § 9, second clause, is the action ex delicto or in tort, and not assumpsit, assumpsit being now commonly denominated an action of the case, the word “ trespass ” being omitted as more appropriate to tort, and consequently that the defendant in assumpsit for a breach of promise of marriage cannot be arrested without the affidavit prescribed by the third clause of § 9, notwithstanding that the action may technically be properly denominated trespass on the case. A promise of marriage is simply a contract. The breach of it is not a tort, though it may resemble a tort in its consequences. We are not convinced that it is to be regarded as other than a breach of the contract because it is classed with torts for certain purposes in cap. 227, § 1; for, though there classed with torts, it is not classed with them in cap. 226, § 16, as would be natural, if it was intended that it should be generally so regarded. Motion to dismiss granted.

George J. West, for plaintiff. Willard Gayles Henry J. Dubois, for defendant.