Wilkie vs. Chadwick, 13 Wend. 49

By the Court, Savage, Ch. J. The judge was right in refusing to nonsuit the plaintiff. It has been decided in Cogswell v. Meech, 12 Wendell, 147, that an action of this kind is local, in so far as the plaintiff seeks to recover the penalty,but transitory if he seeks merely to recover damages. By 2 R. S. 482, § 8, every action for a penalty or forfeiture shall be brought hi the county where the act was done upon which such penalty or forfeiture attached; and if brought in the supreme court, the venue in such action shall be laid in such county.

The service of the subpoena and the default of the defendant were in the county of Onondaga, where the venue in this suit was laid. The judge was right also in saying that' the defendant. must have a reasonable time to travel to court according to the usual modes of public conveyance, without being - to travel on the Sabbath; but that he was not entitled iv at the rate of 30 miles per day.

Even if the evidence offered should have been received, it could not have varied the result; for the judge stated to the jury that if there was time for the defendant, by the usual public conveyances, to travel from his residence to the place where the subpoena was returnable on Mond ay morning, without travelling on the Sabbath, the plaintiff should recover. This is all the plaintiff could ask, if he had shown a special agreement that no longer notice should be given than was absolutely necessary.

Under such a stipulation, the court would not hold the defendant should be compelled to travel • on the Sabbath, when the statute says he shall not New trial denied.