Page:Federal Reporter, 1st Series, Volume 5.djvu/45

 EROWS V. POND, 33 �statute of the United States under which the pônalties sued for'were incurred. �By the Eevised Statutes of New iork it is provided as fol- tows : "Upon every process issued for the purpose of com- pelling the appearance of the defendant to any action for the recbyery of any penalty or forfaiture, shall be indorsed a gen- erai reference to the statute by vrhich such action is given in the foUowing form : 'Aocording to the provisions of the statute regulating the rate of interest on money,' or 'according to the provisions of the statute conoerningsherififs,' as the case may require, or in some other general terms referring to such statute." 2 Eev. St. 481, § 7. A, Bubstantial compliance •with this statute has been held by the courts of the state esseniial to the court acquiripg 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 pro- cess be set aside he is entitled to have the motion granted. Avery y. Slack, 17 Wend. 85; Thayer v. Lewis, e Den. 269; Sawyer v. Sclwonmaker, 8 How. Pr. 198; Cox. v. R. Co. (51 Barb. 615; Bissell v. B. 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 ap- pearance 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 eeeured to hira is a substantial right, so that a suit otherwise �v.5,no,] — 3 ����