Page:Federal Reporter, 1st Series, Volume 5.djvu/47

BSOWN ». POND. 85 �the court jurisdictioh of the defendant. Suoh a defect clearly is one wbich affecta the substantial rights of the adverse party. Section 724 contains nothing which aida the plain- tiff on this question. Eules of practice prescribing particu- lar forms of process, even tbough prescribed by a statute, may be modal merely, and à f ailure to comply with them may in suoh case be cured by amendment. Such were the casea 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 ac- quiring jurisdiction or to the legality of process. and then the defects are not amendable. From the nature and his- tory of this statutory requirement I am satisfied that the defect now in question is of this kind. �This provision of the Eevised 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 com- mon informers, and to prevent malioious informations," it was provided that "upon every process to be sued out upon any such action, etc., to compel the appearance of any de- fendant, shall be indorsed, as well the nàme 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 issu- ing process, contrary to the tenor and provision of this act, fihall f orf eit 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 o£ the same act it is provided, among other things, that any per^ son suing.out process, contrary to the true intent andmean- ing of the act, shall, upon conviction thereof, be forever dis- abled to pursue or be plaintiff or informer upon any suit or information upon any statute, popular or penal ; and for each offence shall f orf eit and lose the sum of {e40,-^one-half to the ����