15 Wend. 184 | N.Y. Sup. Ct. | 1836
By the Court,
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.
Judgment for plaintiff.