The act for the recovery of debts to the value of 25 dollars, gives the justice power to impose a fine, not exceeding 10 dollars, on a witness who is absent, after being subpoenaed, without reasonable cause. The penalty of 50 dollars, besides a further recompense in damages, given by the act for the amendment of the law, (sess. 24. c. 90. s. 20.) evidently applies only to the case of witnesses making default in courts of record. It is made a question, therefore, whether any remedy, besides the fine of 10 dollars, is given against witnesses making default injustices’ courts. But when we consider that the fine, in such case, does not go to the party aggrieved, but to the poor of the town, there must be a remedy to the party for the injury he sustains, and which ought to be by a special action on the case, for damages.
*251The suit, in this case, therefore, was well brought. The case, *1ien~ thrns upon the proceedings in the cause. The defendant was not bound to attend, unless regularly subpienaed as a witness; and as the plaintiff admitted that he had the suhpcena in his possession, it ought to have been produced as the highest evidence of the fact. The confession of the party will not, in such a case, supply the omission of such a document. (Jenner v. Joliffe, 6 Johns. Rep. 9.) The proof produced was very feeble; but here was a fatal errar- The judgment must, therefore, be reversed.
Judgment reversed,.