BROWN V. CHURCH.
4:1
BROWN
v.
POND
and others. November, 1880.)
Wistrict Court, S. D. New York.
Where the prmcipe directing the clerk to issue summons in an action for "statutory penalty; amount claimed, $80,000," is followed by the service of such a summons on the defendant, who was first informed of the nature of the plaintiff's claim in an affidavit accompanying an order extending plaintiff's time to serve a complaint: Held, that a motion made to set aside the summOns must be granted for the same reasons that apply in the case between the same parties heretofore decided, [supra, 31. )
Charles N. Judson and E. H. Bien, for defendants. Kobbe ,J Fowler, for plaintiff. CHOATE, D. J. This is the case between the same parties decided to-day, [supra, 31,J except that the complaint has been served. The prcecipe directs the clerk to issue summons in an action for "statutory penalty i amount claimed, $80,000." It is shown by affidavit, and is not contradicted, that the defendant was first informed of the nature of the plaintiff's claim on the sixteenth of June, 1880, upon the service of an affi· davit accompanying an order extending plaintiff's time to serve his complaint. This motion to set aside the summons was made on the twenty-first of June. For the reasons stated in the other case between the same parties the motion must be granted.
CHURCH
(District Court, 8. D. New York.
In an action to recover penalties incurred under Rev. St. + 4963, relating to copyright, the summons was indorsed as follows: .. For $2,500 deht for a penalty imposed by title 60, c. 3, of an of congress entitled 'An act to revise the statutes,' etc., approved JUne 20.
HEFERENCE TO STATUTE-PRACTICE.
49
FEDERAL REPORTER.
1874," and from the complaint served the nature of the action fully appeared. Held, that the indorsement was sufficiently definite and certain to notify the defendant of the statute upon which suit was brought. That, although it misdescribed the date, there was a sufficient reference to the "Act to revise and consolidate the statutes of the United States," etc., approved June 20, 1874, it appearing that the provisions imposing the penalty sued for were found in title 60, c. 3, of that &C't, and that it was the only act of congress containing & title 60 and chapter 3. Also that the substantially complied with the role .of practice (Broun v. Pond, snpra, 31) and that the defendant waaRot misled by the error of date.
Charles N. Jltdson and E. H. Bien, for defendant.
Kobbe Ii Fowler, for plaintiff. CHOATE, D. J. This is a suit to recover penalties incurred under Rev. St. § 4963,£or marking as copyrighted articles subject to copyright for which no copyright had been obtained. The complaint has been served, from which the nature of the action fully appears. A motion is now made to set aside the summons as irregular and unlawful on the ground that it was not duly indorsed with a reference to the statute imposing the penalties. The indorsement was as follows: "For $2,500 debt for a penalty imposed by title 60, c. 3, of an act of congress entitled 'An act to revise the statutes,' etc., approved June 20, 1874." It is objected that no such act as is here described or r!3ferred to was approved on the twenty-second day of June, 1874, and that this is not a sufficient reference to the"Act to revise and consolidate the statutes of the United States," etc., approved June 20, 1874. The act last referred to contains in title 60, c. 3, relating to "copyrights," the provisions imposing the penalties sued for. The act is evidently misdescribed as respects the date of its approval, hut the reference to it by the other descriptive terms is, I think, sufficiently certain and definite to give the defendant notice of the statute under which he is sued. The requisites of the notice on the summons, in order to be in substantial eompliance with the statute of New York, are fully considered :in the case ofB'rown v. Pond, [supra, 31,] heretofore decided, a.nd within the decisions cited in thatoase. I think it is clear ,
UNITED STATES .,. KINDRED.
43
that there was in this case a substantial compliance with the rule of practice, and that the error of date is immaterial and cannot have misled the defendant. In fact, there· is no other act of eongress containing a title 60, c. 3. except that approved June 20, 1874, and that act is suffioiently and properly referred to as an "Act to revise the statutes," etc. Motion denied.
UNITED STATES 11. KINDRED.
(Oircuit Oourt, E. D. Virginia. 1. JUSTICE OJ!' TIm
December 10,1880.)
PEACE-ACT OJ!' CoNGRESs-INDIC'fMENT-F'EDlllRAL CoURT.-The wilful and corrupt violation of an act of congress by a. justice of the peace of a. state, in the exercise of his office, will render him liable to indictment in federal court.-[ED.
Motion to Quash Indictment.
L. L. Lewis, U. S. Att'y, appeared for the prosecution. John Lyon, for the defence, relied in support of his plea, demurrer, and motion on Broom's Legal Maxims, 66-7; Mis80uri v. Lewis, 91 U. S. 31;' Ex parte Virginia, 90 U. S. 344; Bradwell v. State, 16 Wall. 139; Slaughter-hou8e Oases, ld. 77; Lane Oounty v. Oregon, 7 Wall. 76; Kentucky v. Dennison, 24 How. 107; Ableman v. Booth, 21 How. 516; 18 St. at Large 355; and Queen v. Badger, 45 Eng. C. L. R. 468. HUGHES, D. J. This indictment charges the defendant with unlawfully and corruptly endeavoring to influence, ob· struct, and impede. the due administration of justice in the district court of the United States for the eastern district of Virginia, in having, upon a warrant sued out by one William Myrick, dealt with J. P. Davis, a witness under recognizance in the United States court, in tp.e manner Bet forth in the ,indictment; that is to say, the indictment, after setting out the facts connected with the warrant, including whipping and unlawful imprisonment, charges that Kindred did issue said
