(a) Motion to Discharge Before Trial. The defendant may attack an arrest made under a writ of ne exeat or capias ad respondendum by a motion to discharge on such short notice as the court directs. Upon such motion the court shall determine the sufficiency, in fact and law, of the proof upon which the writ was issued, the plaintiff bearing the burden of proof. The defendant may cause the testimony of any person to be taken either before the court on the hearing of the motion or as provided in these rules for the taking of depositions. The court, if satisfied that the writ should not have issued, shall upon terms make such order for defendant’s discharge and the discharge of the bail or bond, if any, as the circumstances require. If the writ was issued as original process, however, the action shall not abate but shall, unless otherwise ordered by the court, proceed as if commenced by summons.
Rule 4:51-3.Motion to discharge writ
Last amended September 1, 1994 · Current through June 18, 2026 · Last verified July 7, 2026
In one sentenceRule 4:51-3 lets a defendant move to discharge a ne exeat or capias writ before trial, with the plaintiff bearing the burden of proving the writ was properly issued, and preserves the same discharge remedy at trial itself.
Full Text of Rule 4:51-3
(b) Discharge at Trial. If a defendant has been held to bail or bond and on the trial the court is satisfied that the writ should not have issued it may make a like order of discharge.
Amendment History
New Jersey publishes each rule’s amendment record in a “History” note beneath the rule. It is reproduced verbatim below; the “R.R.” citations refer to the former Revised Rules numbering the current rules replaced.
Source-R.R. 4:66-3(a) (b) (c); paragraph (a); amended July 13, 1994 to be effective September 1, 1994.
Plain-English Summary
A defendant arrested under a ne exeat or capias writ is not stuck defending against it only at trial. A motion to discharge, on whatever short notice the court sets, puts the burden on the plaintiff to prove the writ was properly issued in fact and law, and the defendant can take testimony either at the hearing or through deposition.
If the court is satisfied the writ should never have issued, it discharges the defendant and any bail or bond — and if the writ served as original process, the case does not die with it; the action continues as though it had started with an ordinary summons. The same discharge remedy is available if the issue first comes up at trial instead.
Frequently Asked Questions
Who has the burden of proof on a motion to discharge a ne exeat or capias writ?
The plaintiff, who must prove the sufficiency, in fact and law, of the proof the writ was based on.
What happens to the underlying case if the writ is discharged?
If the writ was issued as original process, the action does not abate — it proceeds as though it had been commenced by an ordinary summons.
Source & verification. The rule text and amendment history are reproduced verbatim from the
official New Jersey Rules of Court (N.J. Ct. R. 4:51-3). Prescribed by the Supreme Court of New Jersey (N.J. Const. art. VI, § 2, ¶ 3). The plain-English summary is original and written by us. Last verified July 7, 2026. ·
Official source
Also known as: motion to discharge writ of ne exeatchallenging a capias