
    Smith vs. Merwin.
    Under the provisions of the revised statutes authorizing the recovery of damages and also a penalty against witnesses, for non-attendance when duly subpoenaed, a count in case arid a count in debt may be joined in the same declaration.
    It is not necessary in the count in case to refer to the statute, nor in the count in debt to name the subject matter of the statute under which the action has accrued, as that it had accrued “ according to the provisional of the statute concerning witnesses,” &c.; it is enough .to name the part chapter, title, article and section of the statute.
    Where there is a misjoinder of counts, the defendant can avail himself of the objection only by demurring to the whole declaration: he cannot plead to one count and demur to the other, although the action be in part penal.
    Demurrer to declaration. The declaration contained two counts. The first was in case, for damages sustained by the plaintiff in consequence of the non-attendance of the defendant as a witness when duly subpoenaed, concluding by claiming $ 1000 as such dam ages, according to the provisions of part 3, ch. 7, tit. 3, art. 6, §43 of the revised statutes. The second count was in debt for $50, stating that an action had accrued to the plaintiff to demand that sum from the defendant according to the provisions of part 3, ch. 7, tit. 3, art, 6, §43 of the, revised statutes, and alleging non-payment of that sum, to the damage of the plaintiff of $1000, and therefore he brings suit, &c. The defendant pleaded non cul. to the first count, and put in a general demurrer to the second count. The question upon the demurrer was submitted on written arguments.
    
      A. J. Parker, for the defendant,
    insisted that the second count must be deemed a count in assumpsit. The statute, in a case like this, authorizes that action, 2 R. S. 480, §1, and the conclusion claiming damages, shows that it was so intended by the pleader. Being in assumpsit, it is bad for the want of a promise to pay. If it be deemed a count in debt, it is bad for omitting to show how the indebtedness accrued ; and whether it be a count in assumpsit or in debt, it is defective for not naming the subject matter of the statute under which it is claimed the cause of action has accrued, as that it had accrued “ according to the provisions of the statute concerning witnesses,” &c. 2 R. S. 482, §10, 11. Besides, debt and case cannot be joined in the same declaration. 1 Chitty’s Pl. 199. In penal actions, a general demurre ris equivalent to a special demurrer in other actions, and the defendant therefore may avail himself of formal defects. 1 Chitty’s Pl. 358. 2 East, 353. 6 Cowen, 290.
    
      S. Gordon, for plaintiff.
   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. 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.  