The appeal is from a judgment of the Supreme Court dismissing a writ of certiorari to bring up a rule entered in the Middlesex Pleas quashing an attachment issued out of that court. The attachment issued in ordinary course, based on the usual affidavit of non-residence and indebtedness. The first is not denied: the second, however, was vigorously denied: the Court of Common Pleas made a rule to show cause why the writ should not be quashed; depositions were taken thereunder; the rule was then argued and made absolute by the county court. A writ ofcertiorari was then allowed by Mr. Justice Case, and was heard by him pursuant to statute, R.S. 2:81-5. He filed an unreported opinion calling for a dismissal of the writ, and rule was entered accordingly. The present appeal challenges the propriety of that rule. The determinative question before the Supreme Court was not that of non-residence, as already noted, but was a denial of the truth of the allegation of indebtedness. The affidavit for attachment is in the form specified in R.S. 2:42-5, paragraph (b), and is therefore impregnable as to form. Consequently, if vulnerable at all, it must be so on the ground of untruthfulness. Ordinarily the validity of the cause of action will not be inquired into at this stage, Anspach v. Spring Lake,58 N.J.L. 136: but the rule is subject to exceptions. Day v.Bennett, 18 Id. 287; Morrel v. Fearing, 20 Id. 670;Shadduck v. Marsh, 21 Id. 434; Bisbee v. Bowden, 55Id. 69, and cases cited on pages 70-71. In view of these decisions, the Court of Common Pleas properly inquired into the particulars of the claim: depositions were taken: and it then developed that the claim of a "debt" was in substance the claim of a statutory penalty based on the federal "Fair Labor Standards Act" of 1938 (29 U.S. *Page 136B C.A.) which provides that where an employer is engaged "in commerce or in the production of goods for commerce" (meaning interstate or foreign commerce) an employee is entitled to "time and a half" for all time over forty hours a week. Plaintiff's claim is shown to rest on the theory that defendants were "engaged in commerce" (of which we find no proof even in the depositions) and that he had worked a stated number of hours overtime. Mr. Justice Case pointed out that there was "nothing in the proofs by which such employment is shown or from which it may be inferred."
I think he was correct in so holding, and that the judgment under review should therefore be affirmed.
Mr. Justice Bodine and Judges Wells and Dill authorize me to say that they concur in the views above expressed.
For affirmance — PARKER, BODINE, WELLS, DILL, JJ. 4.
For reversal — THE CHANCELLOR, CHIEF JUSTICE, DONGES, HEHER, PERSKIE, COLIE, RAFFERTY, JJ. 7. *Page 137