#### Hugh McKeon *versus*David Lane.

Dec. Term, 1828.

In an action against a witness for the penalty imposed upon him by the statute, [1 *R. L.*524.] for not attending at a trial, when duly subpoenaed, the declaration must state specially, among other tilings, that the *fees*of the witness were *paid*or *tendered to 1dm,*and it is not sufficient to allege that the witness was “ legally subpoenaed according to the practice of the court.”

This was an action of debt upon the statute, [I *R. L 524. Sec.*20.] against the defendant, to recover of him the penalty of fifty dollars, for not appearing as a witness in a certain cause in which the said Hugh McKeon was plaintiff, and one James Caherty was defendant.

The declaration' averred, that on the first Monday of September, of the September term of this court, in the year 1829, the plaintiff impleaded one James Caherty in said court, in an action on the case on promises, and such proceedings were thereupon had, that upon issue joined, the said cause came on to be tried in its regular order upon the calendar of said court on the 11th day of October, in the year aforesaid, before a jury. That the plaintiff, in order to maintain the issue on his part, “ believing the said defendant to be a material witness for him” “ upon the trial of said cause,” and being so advised, did cause the said defendant to be *legally subpoenaed*as a witness on his behalf, “ according to the course and practice of the said court.” But the defendant, “ not regarding the statute in such case made and provided,” although solemnly called, “ did not appear to give his testimony,” “ although he had no reasonable let or impediment to the contrary, but refused and neglected so to do, in contempt of the statute.” By reason whereof, and because the evidence, which the defendant would have given was material to the plaintiff, “ for “ want of the testimony of the said defendant,” “ the plaintiff “ could not safely proceed with the trial of the said cause, but *u*was thereby compelled to pray the court to allow him to witihdraw the trial of the said cause before the said court and jury.” By reason whereof, Sa\

*320The defendant pleaded first *nil debet*Second, that the plaintiff ought not to maintain his action, because, although the defendant being solemnly called on said *eleventh day of October,*did not appear, yet the plaintiff “ was thereupon allowed by «the said court to withdraw his record, and continue the “ said trial to another day in the said term, to wit, on the 16th “ day of October,” &c. “ in the year aforesaid,” “ on which day “ the said cause came on to be tried in its regular order upon the tc calendar,” “ and the said defendant did appear pursuant to the “ subpoena aforesaid,” and “ was then and there in the presence “ of the said court and jury: which said jury, upon that occasion, “ notwithstanding the testimony given by the said defendant, then “ and there” “ rendered a verdict in favour of the said James *“*Caherty, the defendant in the said suit,” <$-c.

The defendant also pleaded a third plea, in which he alleged, “ that the said cause, on the 16th day of October,” aforesaid, “ came on to be tried in its regular order,” &c.; that the defendant, “ then and there, in obedience to the process aforesaid, at- *“*tended said court, and was then and there presented and offered " as a witness on the part and behalf of the *defendant*in said “ cause; and upon being so produced and offered as a witness, *“*was then and there *objected to by said plaintiff as an incompetent*“ witness.” That the defendant, nevertheless, gave his testimony at the trial, and, notwithstanding such testimony, the jury rendered a verdict in favour of Caherty, the defendant in that suit, See.

To these two special pleas, the plaintiff demurred, and the defendant joined in the demurrer.

*Mr. D. Graham,*in support of the demurrer, now contended;

I. That the defendant had, in his pleas, misconceived the plaintiff’s cause of action. The statute upon which this action is brought, gives the party who is aggrieved by the non-attendance of a witness, fifty dollars as a *penalty, besides*his *damage*actually sustained. In this case, the plaintiff claims the penalty only, and he neither seeks special damage, nor has he laid any such in his declaration. The defendant, by his pleas, admits that he did not appear at the trial when the cause was. called, on the *321llth of October; that he had no excuse for not appearing, and that the plaintiff was compelled, by his non-appearance, to postpone the trial of his cause to a subsequent day. Here, then, is an injury admitted upon the face of the pleadings, and the statute has prescribed the penalty. The pleas, therefore, are no answer to the action, and cannot be sustained. *[Doug.*556. *Pearson v. Iles.]*The plaintiff claims the *forfeiture,*and it is sufficient, if he set forth substantially the *cause*of the forfeiture and his *right*This he *has*done; for the declarations set forth, 1. A suit pending. 3. The due and legal service of the subpoena. 3. The non-attendance of the witness; and fourthly, the injury to the plaintiff.

The first special plea is bad, because it confesses the fact of non-attendance, and the injury to the plaintiff, but does not avoid the effect of that confession by any sufficient matter. The excuse arises from matters *ex post facto,*and cannot be any answer to an allegation of injury previously perpetrated.

The third plea is bad, on the ground of departure, and this objection is fatal on general demurrer. [Sterns *v. Patterson,*14 *John. R.*132.] What if the defendant did appear at the trial of the cause, and what if he were offered as a witness by the *defendant*in that cause, and was objected to by the plaintiff? Is that any excuse for not appearing on the llth of October, at the plaintiff’s requisition ? The plaintiff complains that the defendant did not appear when his cause was called, whereby he was compelled to postpone the trial. The defendant replies—true it is, I did not appear when *you*were ready for trial, but I appeared afterwards when your *adversary*was ready, and I testified in *his*behalf, and you lost your cause: *ergo,*you were not injured by my non-appearance on the llth of October, although the whole expense of that day’s attendance and preparation was thrown upon you by my neglect! The plea, goes further: it admits, that under the statute, it was the defendant’s *duty*to attend when called, and it admits a violation of that duty, without the semblance of an apology for it. The pleas are bad on every ground, and cannot *be*supported.

*322*Mr. Anthon, contra,*contended,

I. That as this was a penal action, the plaintiff ought to have set forth in his *declaration*all the circumstances, which are made necessary by the statute to bring the party within the penalty, it being a settled rule in declaring for offences against penal statutes, (where no form is expressly given,) that the plaintiff shall set forth the facts specially which constitute the offence. *[Bigelow v. Johnson,*13 *J. R.*428.]

The declaration must show *what has been done,*that the court may judge whether an offence has been committed, and the conclusion, *contra formara statuti,*will not aid the omission of the facts. [1 *Chit. Plead.*357. *Barnes v. Talbot.*1 *Salk.*212.]

II. The statute imposes the penalty only in those cases where the party has been subpoenaed, and has been tendered his allowance for travelling to, attending at, and returning from, the court, including one day’s attendance only. These matters are not averred in the declaration, and it is bad for this reason.

The plaintiff has not set forth enough to put the witness in default, for he was not bound to attend the court until his fees were tendered. There is nothing to show that the plaintiff pursued the steps required by law, and the defect is not cured by the allegation, that the witness was “ *legally subpoenaed.”*That is a conclusion of law, not the statement of a fact, and the pleader was bound to allege *the facts,*that from them the court might judge whether the witness was *“legally subpoenaed”*or on, [5 *Mod. R.*353. 3 *Chit. P.*457.]

III. There is no direct averment as to the materiality of the witness; neither is there any averment of the plaintiff’s being aggrieved. The withdrawing of the record was no grievance, and the penalty is given only to the party aggrieved. [ *Cro. Ca.*522. 541.]

IV. The whole term being one day, an effectual appearance by the witness, pursuant to the subpoena, and the giving of his test!*323mony at the trial, form an answer to the claim for the penalty.

1. Because the witness obeyed the subpoena.

*2.*Because the plaintiff has not been aggrieved. This is the substance of the first special plea, which is therefore good.

V. The second special plea shows the appearance of the witness according to the exigency of the subpoenathat he was objected to by the plaintiff, but admitted as a witness, and that the verdict was for the defendant. This plea is good, because it shows, 1. Obedience to the process. *2.*The immateriality of the witness, so far as the plaintiff was concerned; and thirdly, the absence of all grievance on his part,

VI. The plaintiff, to maintain this action, after conforming to all the requisites of the statute, ought to have submitted to a non-suit, or at all events, he ought not to have brought his cause to trial at the same term. ■ This last act relieved him from all grievance, and was a *waiver*of all claim to the penalty. But at all events, the witness’ default, under the circumstances, exposed him to an attachment only, and he is not liable in this action.

*Mr. Graham in reply*contended,

that the declaration set forth all that good pleading required. It avers that the defendant was “ legally subpoenaed, according to the course and practice of the court,” and the legal service of the subpoena includes the showing of the original, the delivery of a copy, and a tender of the fees. The facts are stated with such certainty, that they may be understood by the opposite party, the court, and the jury. This is all that good pleading requires. *[Com. D. Pleader, C.*17. 1 *Ld. Ray.*680. 9 *East.*473.] If the omission to state the particulars were a defect, still the defect is of such a nature, that it could be reached only by a special demurrer to the declaration. By *pleading,*the defendant has waived all objection to the defect, and he cannot now take advantage of it under the plaintiff’s general demurrer. [6 *Com. Dig.*208. Steph. *on Plead.*162.]

*324II, But here it is said there has been no damage. But the cause was called, and the jury empanelled. The plaintiff, not being able to go on with the trial because of the defendant’s absence, was compelled to withdraw his record, postpone the trial, and pay the costs. Here is special damage following, as a natural consequence, the defendant’s neglect of duty, and that is sufficient to sustain the action. But the plaintiff is not bound to allege or prove special damage, for his action is given by the statute, which allows the party aggrieved to have the penalty. How aggrieved *1*By the *absence*of the *witness,*not by the *loss*of his *cause.*In order to sustain this action, it is not necessary for the plaintiff to prove *that he would*have *prevailed*.at the trial, if the witness had been present, for this would compel us" in an action upon a statute, to go into the merits of a matter entirely collateral.

*Per Curiam.*

Without going into any examination of the defendant’s pleas, we are compelled to decide this demurrer against the plaintiff. By the course of pleading adopted by himself, he has enabled the defendant to avoid a justification of the matter set up by him as a defence to the action, and go back to defects in the declaration. Upon a general demurrer, the rule is familiar, that the judgment must be against the party who commits the first fault, and here the plaintiff is in that predicament. He has not set forth enough to enable the court to judge whether the defendant was bound to appear at the trial. True it is, there is an allegation that the defendant was legally subpoenaed, but that is not sufficient. The plaintiff’s attorney is not to be the judge of that, but he is to set forth all the facts of the case, that the court may judge of their effect. The declaration must have sufficient "certainty upon its face to enable us to know what has been done. Facts are to be stated, not inferences or matters of law; and the party succeeds upon facts alleged and proved.

Now in order to convict this defendant, the plaintiff must prove at the trial, that a subpoena was exhibited to the witness under the seal of the court; that a copy thereof v/as served upon him, and that he was tendered such fees as the law allows to him. These facts are not all to be embraced in one conclusion by the pleader; *325for if they were stated, the defendant has a right to deny and form an issue upon them, But we give judgment against the plaintiff upon this point alone, namely, that the declaration contains no averment that the fees of the witness were paid or tendered to him. This must be expressly averred in the count, and proved at the tria;, in order to convict the defendant. The case cited from Douglas, sustains this position, and does not aid the plaintiff. But we were referred to a precedent in Brown’s Entries. Upon looking at that precedent, we find that the averment is there expressly made, and there must be judgment for the defendant on the demu? rer. But the plaintiff may amend his declaration on payment of costs.

*Judgment for the defendant on the*demurrer.

[D. Graham, Jr. *Att’y for the plff.*J. R. Whiting, *Att’y for the deft.]*