Page:Federal Reporter, 1st Series, Volume 7.djvu/58

 e6 FBDBBAL BEPOBTEB. �stitiiting a requirement. Had a writ of protection issued, as one might, there would have been no question but that there was an order to be regarded. But, as before ehown, the act- ual existence of such a writ neither makes nor adds to the protection, The order to take testimony issued under the authority of the court carried with it the protection of the court from the service of foreign process in attending the taking. That protection was an order. McNeil's Case, & Mass, 264. The service of the process was a disobedience of the order. The service of the process in Hall's Case was denominated a disobedience of the writ, in the opinion of the court. 1 Tyler, 274. The conductof the orator consti- tuted a contempt of the authority of the court, whether it was so actually intended or not. The spirit and intention of the statute, if not the letter, warrant and allow punishment for it in the manner provided by statute. It is argued that it should extend to requiring that suit to be discontinued, but the statute only authorizes punishment by fine or imprison- ment. It appears that the suit bas been removed to the fed- eral courts. Had the service been made of process from those courts, it would, on motion made in season, have been set aside. Steiger v. Bonn, 4 Fed. Ebp. 17; Sui^ar Refinerp V. Mathiesson, 2 Cliff. 304. And perhaps it would have been in the state court. Whether such proceedings have been had as to make it too late to make such motion now, does not appear of record. It is due to the proper administration of justice that the suit should be ended before the orator bas relief here. This can be accomplished now by stay of execu- tion until that suit is discontinued, without violating the statute against staying proceedings in a state court. In view of the circumstances, it is deemed proper that the orator should make good to the defendants all expenses incurred by them in consequence of that service of process, and that execution in bis favor in this case be stayed until evidence of the discontinuance of that suit is filed. �The exceptions are overruled, the report is accepted and con- firmed, and a decree ordered for the orator for the amount due, aJlowing interest at 9 per cent, on balance due the defendants. ��� �