the court jurisdiction of the defendant. Such a defect clearly is one which affects the substantial rights of the adverse party. Section 724 contains nothing which aids the plaintiff on this question. Rules of practice prescribing particular forms of process, even though prescribed by a statute, may be modal merely, and a failure to comply with them may in such case be cured by amendment. Such were the cases cited by plaintiff's counsel. McConn v. R. Co. 50 N. Y. 179; Miller v. Gages, 4 McLean, 436. Others may affect a substantial right, and be, in fact, positive conditions to acquiring jurisdiction or to the legality of process. And then the defects are not amendable. From the nature and history of this statutory requirement I am satisfied that the defect now in question is of this kind.

This provision of the Revised Statutes of New York has been part of the statute law of New York, with some slight modifications, since the sixth day of February, 1788, when, by the first section of "An act to redress disorders by common informers, and to prevent malicious informations," it was provided that "upon every process to be sued out upon any such action, etc., to compel the appearance of any defendant, shall be indorsed, as well the name of the party who pursueth the same process, as also the title of the statute upon which the action or information in that behalf had or made is grounded; and that every clerk making out or issuing process, contrary to the tenor and provision of this act, shall forfeit and lose three pounds for every such offence,—the one-half to the use of the people of the state of New York, and the other half to the party against whom any such defective process shall be awarded,-to be recovered, with costs, in any court having cognizance thereof, by action of debt, bill, plaint, or information." By the ninth section of the same act it is provided, among other things, that any person suing out process, contrary to the true intent and meaning of the act, shall, upon conviction thereof, be forever disabled to pursue or be plaintiff or informer upon any suit or information upon any statute, popular or penal; and for each offence shall forfeit and lose the sum of £40,-one-half to the

people of the state, and one-half to the party grieved thereby. By the tenth section of the act its application is restricted to suits where the penalty is, by statute, given to any person suing for the same. Jones v. Varick, N. Y. Laws, 188. This law continued in force at the time of the revision of the laws. in 1813. 1 Rev. Laws N. Y. 99, 103. It was expressly repealed upon the enactment of the Revised Statutes. 3 Rev. St. (2d Ed.) 149. I have not been able to discover that before the passage of the Revised Statutes it had been modified. It will be observed that in incorporating the act of 1788 into the Revised Statutes the provision as to indorsement was changed. Instead of an indorsement of the title of the statute giving the penalty, the indorsement to be made is a general reference to the statute, and in the following form: "According to the provisions of the statute regulating the rate of interest on money," etc., as the case may require, or in some other general terms referring to such statute. This change is more apparent than real. By embodying all general laws then in force in a few new acts, constituting together the Revised Statutes, each of these new acts embracing a great number of existing prior statutes, a reference in the indorsement to the title of the new act would not give the information designed by the act of 1788 to be conveyed to the defendant sued. Instead, therefore, of referring to the title, the new provision is, in substance, that reference shall be made to that portion of the Revised Statutes in which the the former act re-appears, or to such other statute as might subsequently be enacted under which the action is brought. The penalties on the clerk for issuing such defective process, and on the plaintiff for suing it out, seem not to have been re-enacted in the Revised Statutes; at least, I have not been able to discover them there. But the requirement of an indorsement was still continued, and has never been repealed. Having reference to the origin of this requirement, and the title and provisions of the law of 1788 by which it appears to have originated, and especially the penalties imposed for a failure thus to indorse the process, it is seen that by that law the suing out of such process was an unlawful act, a statutory

misdemeanor, and the subsequent decisions of the courts that its service could give no jurisdiction over the person of the defendant, are clearly right, and in accordance with the terms of the statute. Other provisions in the act of 1788 show that this requirement was part of a system designed to prevent groundless and malicious suits for penalties by informers. It prohibited the redelivery of the process to the plaintiff after its issue, or the compounding of any such suit without leave of the court. The act of congress of September 29, 1789, adopted for the circuit and district courts of the United States the "forms of writs" and "modes of process" in each state, respectively, as then "used and allowed in the supreme court of the states" in suits at common law. 1 St. 93. This act, which was temporary, was continued in force from time to time, and made a permanent law in 1792. 1 St. p. 128, c. 13; p. 191, c. 8; p. 276, c. 36, § 2. This law of congress, regulating the form of mesne process, continued in force, so far as the United States courts in the state of New York are concerned, till 1872, when, by the act of June 1, 1872, § 5, (17 St. 197; Rev. St. 914,) it was provided "that the practice, pleadings, and forms and modes of proceeding in other than equity and admiralty causes in the circuit and district courts. of the United States, shall conform as near as may be to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held, any rule of the court to the contrary notwithstanding." Under this statute the old forms of process for the commencement of common-law suits used in this court have been superseded by the summons conforming to the provisions of the New York Code, except that, instead of being signed by the attor ney for the plaintiff, it is signed by the clerk of the court, and under its seal; this mode of attestation being required still by an act of congress. Rev. St. § 911. I think there is no doubt that, under the act of 1789, the practice of indorsing the process in suits for penalties given by statute to any person suing for the same was adopted as a part of the "forms of writs" and "modes of process" to be used in this court,

and that, independently of the act of 1872, (Rev. St. § 914,) process so indorsed was the proper process to be used in such a case, and that the only effect of the act of 1872 was to modify the practice in this respect so far as the state practice had been modified in the re-enactment of the act of 1788 in the Revised Statutes of New York. These modifications were in the form of the indorsement, as above pointed out, and in extending the requirement of an indorsement to all suits for penalties or forfeitures.

It is argued, however, that the New York statute related only to suits for penalties declared under the laws of New York; and this, in one sense, is correct, since no court in the state would take cognizance of a suit to enforce a penalty declared by any law other than that of the state of New York. But the statute, as a statute of procedure, is not to be thus limited and restricted by construction. The act made in effect a different kind of process necessary in suits for penalties as a general rule of procedure, as well penalties theretofore declared by existing statutes, as to penalties thereafter to be declared by any statute of whatever nature such penalties might be, if given to any person suing therefor. The law was not limited by its terms or reason to those penalties declared by the laws of New York then existing, but it made a distinction between suits for penalties and other suits, which was capable of being applied to suits in the United States courts. And I see no reason why the act of congress adopting the state "forms of writs" and "modes of process" should be so construed as to exclude this distinction. It would be too narrow a construction of the act of congress thus to restrict its operation.

It is argued, also, that the jurisdiction of this court cannot be made to depend upon a state statute, though its forms of procedure may be made so to do; that service of a writ out of this court, under its seal, gives jurisdiction over the perBut where the act of congress adopts the form of process used in the state courts, and the state law has prescribed an indorsed process in a certain class of suits, the use of such indorsed process in that class of suits is, it would seem, also

son.

adopted by the act of congress. And if such process, unindorsed, is an unlawful or prohibited act under the state law, and its service can give the state court no jurisdiction over the person of the defendant, it seems to me that the same effect must follow the service of such process in a similar suit in this court. This is not making the jurisdiction of this court depend upon a law of the state. It is, indeed, making the acquiring of jurisdiction over the person of the defendant depend upon the service of a proper process. But what is proper process is by act of congress left to be determined by the law of the state. I think, therefore, it has, since 1789, been necessary to indorse the process with a reference to the statute in order to make it a proper process in such a suit in this court, and to make the service of such process effectual as subjecting the defendant to the jurisdiction of this court.

Rev. St. § 954, is, however, relied upon as showing that this defect of process is not fatal to the jurisdiction, but is a defect that may be amended. And when this motion was first presented to the court, and the act of 1872 was alone relied upon by the defendant as making the indorsement necessary, and the history of the state statute was not gone into in the argument, this view was acquiesced in by the court, but further examination of the question has brought me to the conclusion that this was erroneous. Section 954 provides that "no summons, writ, etc., in civil causes, in any court of the United States, shall be abated, arrested, quashed, or reversed for any defect or want of form, but such court shall proceed and give judgment according as the right and matter in law shall appear to it, without regarding any such defect or want of form except those which, in cases of demurrer, the party demurring expressly sets down, together with his demurrer, as the cause thereof; and such court shall amend every such defect and want of form other than those which the party demurring so expresses, and may at any time permit either of the parties to amend any defect in the process or pleading upon such conditions as it shall in its discretion and by its rules prescribe." This is a re-enactment of the twentieth section of the judiciary act of 1789, (1 St. 91.) It