Page:Federal Reporter, 1st Series, Volume 5.djvu/44

 32 FEDSBAL BEFOBTEB. �porary act of congress passed September 29, 1879, and the pennanenS law of 1792, adopting for the United States circuit »nd district court* the "forma 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 pasaed 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 modifled in the re- enactment of the act of 1788 in the New Yorls Revised Statutea. . 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 ia not amendable un- der either the United States Revised Statutes, f 954, or the New York Code of Procedure, ij 721 to 724. �That the defect may be waived by the general appearanee of the defendant without objection ; but an appearanee for the purpose of taking the objection, or a general appearanee, 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 de Fowler, for plaintiff. �Choate, D. J. This is an action to recover penalties under a statute of the United States relating to copyright. Eev. 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 pracipe, filed April 29, 1880, directed the clerk to issue sum- mons in an "action for statutory penalty; amount claimed, $2,500." The defendant served notice of appearanee on the eleventh of May, 1880, demanding a copy of the complaint, but "reserving the right to set aside the summons for irregu- larity, 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 ����