Cogswell vs. Meech, 12 Wend. 147

By the Court, Savage, Ch.’ J. Whether the nonsuit was directed upon one or both of the grounds taken by the defendant’s counsel, is not stated. Tt is proper, therefore, to express an opinion upon each. 1. The non-attendance of the witness was properly proved by parol evidence. The existence of the suit was shown by the record ; but the record does not prove any thing as to the attendance of witnesses. It is not the duty of the clerk to enter in his minutes the name of every person called by the crier at the request of a party whose cause is about to be brought on.

The attendance of a witness is a fact which may be proved by any person who knows the fact; and so may the non-attendance. There is not necessarily any record or memorandum made by any officer of the court of such non-a.ttendance, and therefore there is no presumption of higher evidence. 2. As to the venue. The

section of the statutes on which the second count is founded, states, that for every failure to attend as a witness, after having been served with a subpoena, without reasonable excuse, the person so failing to attend shall be deemed guilty of a contempt of court; shall be responsible to the party aggrieved for all damages, and shall forfeit to such party the sum of fifty dollars, to be recovered in a separate action, or in the same action commenced for the recovery of damages. 2 R. S. 400, § 43.

Every action for a penalty or forfeiture must be brought in the county where the act was done, upon which such penalty or forfeiture attached. 2 R. S. 482, § 8. Any pecuniary penalty or forfeiture accruing to the party aggrieved, by any act or omission of another, may be sued for and recovered in an action of debt, or in an action of assumpsit. 2 R. S. 480, § 1. And the defendant may plead the general issue. 2 R. S. 482, §13. The present action is brought as well for the damages of the party aggrieved as for the penalty. An action for damages alone is transitory, and an action for the penalty is local.

The evidence of the plaintiff applied equally to both counts. It was not for the court to instruct the jury to separate the counts and apply the evidence to one only. The plaintiff might have done it, and taken a verdict upon his first count, but he did not think proper to do so. I think, therefore, the judge was right in directing a nonsuit. Had the cause proceeded, and the jury given a general verdict, it would have applied as well to the count which is local as to that which is transitory, and must have been set aside for irregularity. Motion to set aside nonsuit denied.