The opinion
By the- Court, Bronson, J.
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.