
    HENRY J. GOTTLOB ET AL., PROSECUTORS, v. CHARLES P. SCHMIDT.
    Argued November 8, 1900
    Decided February 25, 1901.
    1. Section 10 of an act providing for the registration of trade-marks, &c. (Pamph. L. 1898, p. 83), imposing a penalty of not less than $200 and not more than $500, to be recovered in an action of debt in any court of law in this state authorizes the plaintiff in the action to fix the amount for which suit shall be brought.
    2. Suit having been brought for $200, the District Court had jurisdiction.
    On certiorari.
    
    Before Justices Garrison and Garretson.
    For the prosecutors, Joseph A. Beecher.
    
    For the defendant, William J. Hearns.
    
   The opinion of the court was delivered by

Garretson, J.

This was an action brought in the Second District Court of the city of Newark to recover $200. It was brought under an act'entitled “An act to provide for the registration of labels, trade-marks, terms and designs, and to protect and secure the rights, property and interests therein of the persons, associations, organizations and corporations adopting and filing the same.” Pamph. L. 1898, p. 83.

The tenth section of that act provides “that in addition to any other rights, remedies or- penalties provided' by this act and as concurrent therewith, any person or persons, association, organization or corporation that shall violate any of the provisions of this act shall be liable to a penalty of not less than two hundred and not more than five hundred dollars, to be recovered in an action o'f debt in any court of law of this state having jurisdiction in civil causes, by any such person, association, organization or corporation that has adopted and filed, or caused the same to he done as aforesaid, any such label, trade-mark, term or design; which action may be commenced by summons as in ordinary cases and shall be proceeded with therein as ordinary cases in said court.”

The .District Court held that by the foregoing language the legislature intended to confer upon the court, in case of conviction, the duty of imposing the penalty between the limits of $200 and $500, according to the seriousness of the offence in each case; that as, under the act, the extreme penalty was $500, that amount determined the jurisdiction of the court, and as the jurisdiction of District Courts was limited to amounts less than $500, these actions could not be brought in those courts.

The District Court also held that the language of the act, “to be recovered in an action of debt in any court of law in this state having jurisdiction in civil causes,” did not enlarge the 'jurisdiction of District Courts in the matter of amount in actions under this statute. Upon these grounds .a non-suit was granted.

In the case of State v. Zeigler, 3 Vroom 262, this court held that where the legislature authorized the enforcement of ordinances by a penalty not exceeding $50, to be recovered in an action of debt, the council must prescribe a precise penalty for each offence. In McConvill v. Jersey City, 10 Id. 38, an ordinance fixing a penalty not exceeding $50 was sustained because the penalty was not to be collected by an action of debt, and that an action of debt can only be maintained for a sum capable of being ascertained at the time of the action brought.

Under this statute the penalty is to be recovered in an action of debt, and that amount must be ascertained and • fixed by somebody when the summons is issued.

The power of the legislature to authorize a common council to fix penalties, whether to be recovered by actions of debt or otherwise, is not questioned, and we see no reason why the legislature may not also depute to the person for whose benefit the recovery is to be had the right to fix the amount within the statutory limits of the debt for which suit shall be brought. This being so, the plaintiffs brought this action for a debt of $200, which was within the jurisdiction of the District Court as defined by other statutes, and there was nothing in that action from which the question could arise as to whether the court had jurisdiction if suit had been brought for an amount beyond that fixed by other laws as the limit of its jurisdiction.

The question whether the language of the act that the penalty 'should “be recovered in an action of debt in any •court of law in this state having jurisdiction in civil causes” gave the court jurisdiction up to.$500, could not arise in a suit to recover a debt of $200.

Eor these reasons the judgment of the District Court should be reversed.  