That the action for a penalty is a civil action, is very fully reasoned, and very clearly shown (as well as directly decided), in the case of Atcheson agt. Sveritt (Cowper, 382).
Its common law form was not on the case ex delicto, but debt on statute; stating that the defendant “ owes to, and detains from the plaintiff,” $100 or whatever sum. And, in the subsequent part of the pleading, that “ defendant is indebted to plaintiffs by force of the statute.” (2 Chitty’s Pl. 384, 501.)
It was never classed among actions ex delicto; but always among those ex contractu ; on the ground that from an indebtedness the law implies a promise to pay. And at common law there was no other form of action for such a case.
The Code, in abolishing farms, has not abolished principles ; and this action is still for a fixed sum of money, which, by force of the statute, the defendant is bound to pay to plaintiffs. And the action is for the recovery of money only, and for a specified sum—a sum certain—one penalty of $50 in each count; the two amounting to $100, as much, and as precisely as if two notes (of $50 each) were sued on.
What should the summons state ? that plaintiffs will apply to the court for the relief demanded in the complaint, when that relief is a judgment for just so much money so due. In common sense, the summons and complaint before me answer all the purposes of a summons and complaint; they contain all the information the defendant can need to apprise him of the precise cause of action, and all the facts a clerk of the court could require, to enter the judgment (in case of default), for the exact amount; and there is no reason in the cases, or out of them, why the court should be troubled with the mere farce of a special application for relief.
*197Besides, I see not how the case fails to come completely within § 176 of the Code; since, if there be, in the summons or complaint, error or defect (as claimed by the defence), it cannot affect “ the substantial rights ” of the defendants, and the court must, in every stage of the action, disregard such error or defect.
Further, the decisions in 5 Abbott, 384, and 6 Abbott, 343, are precisely in point, and I am disposed to acquiesce in them.
The motion to set aside the complaint must be denied, with $10 costs of motion.
At General Term, Albany, March, 1859.
Present, Harris, Gould and Hogebooji, Justices.
After argument on the appeal from the order above made at special term, said order was unanimously affirmed; and the court directed the opinion given at special term to be published as the opinion of the court.