
    Hasbrouck against Baker.
    NEW YORK,
    May, 1813.
    An action on irTa'justice’s a0"ro7nels'resuiajiymbpaness inacause, andUwiio°Unegleets or re-at the suit of whom^he was recove”aeCthe damages sustained in consequence of such default.
    Parol evidence that the defendant confessed that he was subpoenaed, is not sufficient evidence of the fact, where the plaintiff has the subpoena in his possession, and does not produce it.
    IN ERROR, on certiorari, from a justice’s court. Baker brought an action on the case against Hasbrouck, before a justice, recover damages, which the plaintiff had sustained, by reason of the non-attendance of the defendant, as a witness, in a certain cause tried before a justice, in which the plaintiff was defendant, ant* in which Hasbrouck was regularly subpoenaed as a witness, The defendant pleaded the general issue. There was a trial by jury, i de plaintiff offered to prove by a witness, that the defendant had been served with a subpoena in the cause above mentioned, ’out defendant objected to any parol evidence, and insisted that the writ of subpoena ought to be produced; but the justice overruled the objection. The witness testified that the defendant admitted in conversation, that he had been served with a subpoena on the part of the plaintiff, &c. but that he was too unwell to attend, and besides, had business at the time with his congregation, (being a minister.) The plaintiff below admitted that he had the subpoena at the trial, but did not produce it, nor give any reason why he did not.
    The defendant proved that the judgment recovered against the plaintiff was just, and that no such fact existed as the defendant was subpoenaed to prove.
    The jury found a vc-rdict for the plaintiff for 10 dollars, on which the justice gave judgment.
   Per Curiam.

The act for the recovery of debts to the value of 25 dollars, gives the justice power to impose a fine, not exceeding 10 dollars, on a witness who is absent, after being subpoenaed, without reasonable cause. The penalty of 50 dollars, besides a further recompense in damages, given by the act for the amendment of the law, (sess. 24. c. 90. s. 20.) evidently applies only to the case of witnesses making default in courts of record. It is made a question, therefore, whether any remedy, besides the fine of 10 dollars, is given against witnesses making default injustices’ courts. But when we consider that the fine, in such case, does not go to the party aggrieved, but to the poor of the town, there must be a remedy to the party for the injury he sustains, and which ought to be by a special action on the case, for damages.

The suit, in this case, therefore, was well brought. The case, *1ien~ thrns upon the proceedings in the cause. The defendant was not bound to attend, unless regularly subpienaed as a witness; and as the plaintiff admitted that he had the suhpcena in his possession, it ought to have been produced as the highest evidence of the fact. The confession of the party will not, in such a case, supply the omission of such a document. (Jenner v. Joliffe, 6 Johns. Rep. 9.) The proof produced was very feeble; but here was a fatal errar- The judgment must, therefore, be reversed.

Judgment reversed,.  