Page:Federal Reporter, 1st Series, Volume 5.djvu/43

 BBOWN ». POND. 81 �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 prevailiiig rate allowed to sheriffs. I do not, however, see any difGiculty in adapting the rate to those allowed to sheriffs in different counties. I think that by doing eo the purpose of the statute is more effectually carried ont, 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 estent, sustained, and the %mount reduced accordingly. ���Brown V. Pond and others. (Diitria Court, S. B. New York. November, 1880.) �ACTIOHB TO RBCOTBB PeNALTIES— ReV. BT. § 4963~llirDOHSBMEHT OF SUMMOKS— PBACTICE— AcT OF JUNE 1, 1872— NOTICB— AmBNDMBNT �— àppbàkasce of Defbitdakt— Waiver— Pe.«:cipb. �Where the prœdpe flled in the clerk's ofllce directed him to issue Bummotts 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 catise," and after a complaint was flled, ■whieh sho-wed that the action was brought to recover statutory pen- alties under TJ. 8. Rev. St. } 4963, relating to copyright, the defend- ant 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 pen- alties was brought. �Hdd, 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 afEects a substantial right. �That thisrequirement, found in the statute law of New York, act of iebruary 6, 1788, and re-enacted in the New York Revised Statutes, modifving the form of the indorsement and extending the require- ment of an indorsement to ail suits for penalties or forfeitures, bas been the ruie of law also in the United States courts aince the tem- ����