The opinion
Choate, D. J.
This is like the case between the same parties decided to-day, \supra, 31,] except that the complaint has been served. The prcecipe directs the clerk to issue summons in an action for “statutory penalty; amount claimed, $80,000.” It is shown by affidavit, and is not contradicted, that the defendant was first informed of the nature of the plaintiffs claim on the sixteenth of June, 1880, upon the service of an affidavit 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.