The right of the sheriff in that respect is governed by 2 Rev. St. 645, § 33, (5th Ed. Vol. 3, p. 924,) which provided as follows: "For serving an attachment for the payment of money, or an execution for the collection of money, or a warrant for the same purpose, issued by the comptroller, or by any county treasurer, for collecting the sum of $250 or less, two cents and five mills per dollar, and for every dollar collected more than $250, one cent and two and a half mills." By an act of April 12, 1871, the sheriff's poundage was raised to three cents on the first $250, and two cents on all above that sum, except in the counties of New York, Westchester, and Kings. An earlier statute, which is included in the Revision of 1813, provided that the sheriff should receive for "serving an execution, for or under $250, two cents and four mills per dollar, and for every dollar more than $250, one cent and two mills; the poundage on writs of fieri facias, and all other writs for levying moneys, to be taken only for the sum levied." This earlier statute received in several cases a judicial construction that, as applied to a ca. sa., or execution against the person, it entitled the sheriff to full poundage, on the ground that the service of such an execution by arrest was, so long as the imprisonment continued, a satisfaction of the execution, and that the sheriff's liability, in case of escape, was for the whole amount of the execution. The change of phraseology in the later statute is relied on as changing the law in this respect; but I do not think this is the result of the authorities, nor a proper inference to be drawn from the statute itself. The practical construction that has been given to the statute is that it entitled the sheriff to full poundage upon service of the execution against the person. 2 Rev. Laws, 19; Adams v. Hopkins, 5 John. 252; Scott v. Shaw, 13 John. 378; Campbell v. Cothran, 56 N. Y. 279; Cooper v. Bigelow, 1 Cow. 56; Chapman v. Hatt, 11 Wend. 41; Koenig v. Steckel, 58 N. Y. 475. The new provision contained in the Code, which took effect September 1, 1880, does not affect this case.

It is, however, objected that in this case, as the arrest was in the county of New York, the rate of poundage to be allowed

should be that allowed to the sheriff in the county of New York for the same service. It is argued on behalf of the marshal that a uniform rate of poundage is designed to be established by the act of congress, and that the rate should be the highest rate allowed to any sheriff in any county within the state, or at least the prevailing rate allowed to sheriffs. I do not, however, see any difficulty in adapting the rate to those allowed to sheriffs in different counties. I think that by doing so the purpose of the statute is more effectually carried out, and so only is the rate of marshals fees conformed to that of the sheriff for similar services. As the computation was made on the higher rate allowed in other counties, the appeal is to this extent, sustained, and the amount reduced accordingly.

BROWN V. POND and others.

(District Court, 8. D. New York. November, 1880.)

1. ACTIONS TO RECOVER PENALTIES-REV. ST. § 4963-INDORSEMENT OF SUMMONS-PRACTICE-ACT OF JUNE 1, 1872-NOTICE-AMENDMENT -APPEARANCE OF DEFENDANT-WAIVER-PRÆCIPE.

Where the præcipe filed in the clerk's office directed him to issue summons in an "action for statutory penalty; amount claimed, $2,500,” and the defendant served notice of appearance, demanding a copy of the complaint, but "reserving the right to set aside the summons for irregularity or any proper cause," and after a complaint was filed, which showed that the action was brought to recover statutory penalties under U. S. Rev. St. 4963, relating to copyright, the defendant moved to set aside the summons, on the ground that it was not indorsed with a reference to the statute under which the suit for penalties was brought.

Held, that the summons was defective in not containing such an indorsement and must be set aside.

That the indorsement constitutes a positive condition to acquiring jurisdiction of the defendant and affects a substantial right.

That this requirement, found in the statute law of New York, act of February 6, 1788, and re-enacted in the New York Revised Statutes, modifying the form of the indorsement and extending the requirement of an indorsement to all suits for penalties or forfeitures, has been the rule of law also in the United States courts since the tem

porary act of congress passed September 29, 1879, and the permanent law of 1792, adopting for the United States circuit and district courts the "forms of writs" and "modes of process" used in the supreme court of the states respectively, in suits at common law.

That this was the law independently of the act of congress passed June 1, 1872, relating to the practice, etc., in the United States courts, the only effect of which was to modify the practice in respect to the indorsement so far as the state practice had been modified in the reenactment of the act of 1788 in the New York Revised Statutes.

Serving a declaration referring to the statute, at the same time a process is served on the defendant, will be a substantial compliance with the statute, although there be no indorsement on the process itself.

That the defect in omitting the indorsement is not amendable under either the United States Revised Statutes, § 954, or the New York Code of Procedure, §§ 721 to 724.

That the defect may be waived by the general appearance of the defendant without objection; but an appearance for the purpose of taking the objection, or a general appearance, followed by the taking of the objection when the defendant is informed of the nature of the suit, will not be a waiver.

Charles N. Judson and E. H. Bien, for defendants.

Kobbe & Fowler, for plaintiff.

CHOATE, D. J. This is an action to recover penalties under a statute of the United States relating to copyright. Rev. St. § 4963. The summons, dated April 29, 1880, was served April 30, 1880, by the marshal. It was not indorsed with any reference to the statute imposing the penalty. The præcipe, filed April 29, 1880, directed the clerk to issue summons in an "action for statutory penalty; amount claimed, $2,500." The defendant served notice of appearance on the eleventh of May, 1880, demanding a copy of the complaint, but "reserving the right to set aside the summons for irregularity, or any proper cause." The complaint was filed June 14, 1880. It shows the nature of the action to be as above stated. This motion was made on the twenty-first of June, 1880. It is an application to the court for an order setting aside the summons, or, if that is refused, for an order setting aside the complaint, on the ground that it does not conform to the summons. The sole ground alleged for setting aside. the summons, or, in the alternative, the complaint, is that there was not indorsed on the summons a reference to the

statute of the United States under which the penalties sued for were incurred.

By the Revised Statutes of New York it is provided as follows: "Upon every process issued for the purpose of compelling the appearance of the defendant to any action for the recovery of any penalty or forfeiture, shall be indorsed a general reference to the statute by which such action is given in the following form: 'According to the provisions of the statute regulating the rate of interest on money,' or 'according to the provisions of the statute concerning sheriffs,' as the case may require, or in some other general terms referring to such statute." 2 Rev. St. 481, § 7. A substantial compliance with this statute has been held by the courts of the state essential to the court acquiring jurisdiction over the person of the defendant, so that if the indorsement is not made the defendant is not obliged to appear, and cannot be held to be in default, and if he appears especially to move that the process be set aside he is entitled to have the motion granted. Avery v. Slack, 17 Wend. 85; Thayer v. Lewis, 4 Den. 269; Sawyer v. Schoonmaker, 8 How. Pr. 198; Cox. v. R. Co. 61 Barb. 615; Bissell v. R. Co. 67 Barb. 385, and cases cited. The defect being the want of one of the requisites for acquir ing jurisdiction over the person, and not over the subject. matter, the defect may of course be waived by the defendant, and is waived by his general appearance without taking the objection, after being informed of the nature of the suit, so that, at least from the time of such voluntary appearance, the court will be deemed to have jurisdiction, and the action to be duly commenced. An appearance, however, for the purpose of insisting on the want of proper process, or an appearance followed by the taking of the objection, when he is informed of the nature of the suit, will not be a waiver of the defect. (Same cases.) These cases distinctly hold that it was the purpose of the statute to secure to the party sued notice, at the time of the service of the writ, of the fact that he was sued for a penalty; and, at least by a general descrip tion, of the statute imposing the penalty; and that this right secured to him is a substantial right, so that a suit otherwise v.5,no.1-3

commenced is not considered properly or lawfully commenced against him. The object, however, being to give him this notice, if he obtains the notice at the very time of the service of the process, as by service upon him at the same time of a declaration referring to the statute, this will be a substantial compliance with the statute, though there is not a formal or technical compliance by an indorsement on the process itself. (Same cases.)

Under these decisions it appears that the defect in the process was one which the court could not allow to be amended, so as to obtain jurisdiction of the person of the defendant, unless he had waived the objection. It is, however, claimed by the plaintiff's counsel that under the new code of civil procedure the defect is amendable. Sections 721 to 724 are referred to as authorizing such an amendment. Sections 721 and 722 refer only to amendments after judgment, and clearly cannot authorize any amendment before judgment, nor can any amendment properly be allowed after entry of a judgment against a party which was absolutely void for want of jurisdiction over the person of the defendant, so as to make the judgment valid against him. Therefore these two sections may be disregarded as not affecting this question. Section 723 relates to amendments at any stage of the cause. It authorizes the court, "in furtherance of justice," and "on such terms as it deems just," to amend "any process, pleading, or other proceeding, by adding or striking out the name of a person as a party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting an allegation material to the case; or, where the amendment does not change substantially the claim or defence, by conforming the pleading or other proceeding to the facts proved." "And in every stage of the action the court must disregard an error or defect, in the pleadings or other proceedings, which does not affect the substantial rights of the adverse party." These provisions are, however, substantially identical with those of the former Code, §§ 173, 176. Nor do they permit an amendment which would give effect and validity to an original process, ineffectual when served to give