Page:Federal Reporter, 1st Series, Volume 10.djvu/619

 MATTHEWS V. PUPFER. 607 �of the defendants as "doing business" at Boston and New York, and as being citizens of the United States. �In opposition to tke motion it was shown by affidavits on the part of the plaintiff that the defendant served had a place of business in the city of New York, and one also in Boston. In regard to him the plaintiff said, in an affidavit : "His place of residence in New York is not knownto me, and I have been unable to ascertain it." The defendant, after hearing the affidavits in opposition to the motion, chose to submit it for decision, and did not ask leave to withdraw it and renew it on further papers, or to put in further papers. The court, in denying the motion, said : "It does not anywhere appear that A. D. Puffer is a citizen of Massachusetts, or is not a citizen of New York, or does not reside in New York. The bill alleges that he does business at New York and is a citizen of the United States. It is shown that he has a place of business in New York city. The motion is denied." �The defendant now, without leave, renews the motion on papers showing that at the time of the service he was a citizen and a resi- dent of the state of Massachusetts. This was a fact which the defendant was called upon to show on the first motion. It is not a newly-discovered fact. It was involved in and pertinent to the first motion. Itwas called to the attention of the defendant bythe oppoa- ing papers, and yet the judgment of the court was invoked on the case. The court had jurisdictiou of the subject-matter of the suit. The service of the subpœna was made on the defendant personally in this district. The objection to the service, as made while the defendant was protected by a privilege, was one which the defendant jBOuld waive, and one ^hich he might waive by not making it when he ought to make it, or by not making it in a proper way, as well as by not making it at all. It is one of those irregularities which must be promptly availed of. In the present case it must beheld that the defendant lost his right to show that he was a citizen and resident of Massachusetts, and the motion to set aside the service of the sub- pœna is denied. �Note. A party going into another state as a witness or as a party under prooess of a court, is exempt from process in such state while necessarily attending there in respect to such trial. Brooks v. Fanoell, 4 Fed. Eep. 167 ; citing Parlier v. Hotchkiss, 1 Wall. Jr. 269 ; The luneau Bank v. McSpedan, 5 Biss. 64; and see In re Healy, 24 Alb. Law J. 529. Se a party while in another state, attending a regular examination of witnesses, ia privileged. PUmpton v. Winslow, 9 Fed. Rep. 365. — [Ed. ��� �