Smith v. Merwin

By the Court, Nelson, J. The first count of the declaration is in case, concluding with a reference to the statute, 2 R. S. 400, §43, which gives “ the proper action ” for the injury complained of. This act is merely declaratory of the common law, and the reference to it in the declaration is immaterial, but yet we cannot say such reference is objectionable, as the plaintiff may put his case upon the statute if he see fit. A special action on the case is the appropriate remedy,where damages are sought to be recovered by the aggrieved party. 2 Doug. 566. 1 Phil. Ev.4. 1 Archb.172. 1 Campb. 14. 9 East, 473. 12 Wendell, 638. Assumpsit might, I think, be sustained, where the fees tendered a witness were received by him, under the implied promise arising from accepting the money—and probably it might upon a mere tender and refusal: though it seems to me, upon general princiciples, there would be some difficulty in sustaining it without confounding the two actions. Neither of these positions, however, need be asserted in the present case. The statute, 2 R. S. 400, §43, not only gives “ tfie proper action” for the recovery of the “ damages” sustained in consequence of the non-attendance of the witness, but declares that the delinquent shall forfeit to the party aggrieved fifty dollars in addition to such damages, “ to be recovered in a separate action, or in the same action commenced for the recovery of such damages.” Where no particular mode is prescribed for the recovery of a penalty given by statute, debt is the appropriate action; if the mode is prescribed, it must be followed. [186] 2 Bac. Abr. 280. 1 Chitty’s Pl. 101, 105. 7 Wendell, 280. jjere two remedies are expressly given by statute to recover the penalty, 2 R. S. 480, §1 ; and in page 482, §10 and 11, the forms of the declarations are prescribed. The action may be debt or assumpsit. It should be remembered that these remedies are arbitrary, and are given, together with the pleadings, without much regard to their fitness to the particular cause of action, according to the rules of practice or science of special pleading: for instance, the action o('debt, when appropriately used, is founded upon contract, and to sustain assumpsit,there must be a promise express or implied. It would be difficult to maintain that the liability to pay a penalty in these cases arose out of any contract on the part of the delinquent. The action and pleadings being thus arbitrary, it is no great innovation upon general principles by the legislature, to enact that a count in case, and a count in debt or assumpsit to recover the penalty, may be joined in the same declaration. ' This I think is the reasonable construction of the different provisions. It is true the general issue will be different to the different counts; but that is mere form, there can be no difficulty in making up the record. The second count is a good count in debt, within the 10th section ; and even if we had not arrived at the conclusion that there is no misjoinder, the defendant on a demurrer to that count alone could not have availed himself of it; he should have demurred to the whole declaration. 1 Chitty’s Pleadings, 444, 206. 2 Bos. & Pul. 423. The formal conclusion of the second count in this case was improper under the 10th section, but the objection cannot be taken advantage of under a general demurrer. We do not mean to say but that under the 43d section a count might be so framed as to conclude not only for the special damages, but also for the penalty. Judgment for plaintiff.