Page:Federal Reporter, 1st Series, Volume 9.djvu/380

 PLIMPTON V. WINSLOW. 865 ���PlIMPTON V. WiNSLOW. {Circuit Court, 8. D. New York. November 12, 1881.) �1. State Comity — Sbbticb of Procesb. �A party to a suit which haa been brought in a circuit court of the United States is protected from the service of process and papers in another suit between the same parties for the same cause of action, which has been' com- menced in a circuit court in another" state, while attending there a legular examination of witnesses in the former suit. �In Equity. �E. N. Elliot, for plaintiff. �Wet.more, Jenner e Thompson, for defendant. �Blatchfobd, g. J. a suit in equity brought by the plaintiff in this suit against the defendant in this suit, for the infringement of letters patent, is pending in the circuit court for the district of Massa- chusetts. ^ : j �Prior to November 2, 1881, it had' been verbally agreed between Mr. Kob- erts, the eounsel for the defendant; and Mr. Clark, the counsel for the plain- tiff, in the suit in Massachusetts, that the. defendant might have testimcny on his behalf taken in the city of New York for use in that suit bpfore Mr. Thompson, as a special examiner, and Mr. Clark verbally agreed to attend before Mr. Thompson at any time, on telegraphie notice, for the purpose. Such notice was given that. the plaitttifE, together with the defendant and Mr. Koberts, attended in New York, before Mr. Thompson, on November 2a.' Mr. Clark was not present on that day. Wilnesses were examined on that day on behalf of the defendant, before ilr. Thonipson, by Mr. Eoberts, as counsQl for the defendant, with the acquie^ence of the plaintiff, who was present 4v\r- ing the examination, and it wag agreed between the plaintiff and Mr. Eoberts that Mr. Clark should have the right to afterwards cross-examine the said wit- nesses and enter objections to all questions in the direct testimony; and the examination was adjourned to November 3d. On that day Mr. Clark appeared and cross-examined the said witnesses, and also, in conjunction with Mr. Eob- erts, signed a stipulation in writing, dated November 2d, and entitled in the Massachusetts suit, stipulating and agreeing that Mr. Thompson might be appointed a special examiner by the court of Massachusetts to take the testi- mony for the defendant in the suit in New Yorli, under the sixty-seventh rule in equity, as amended. After the adjournment on the second of November, and on that day, the defendant was served personally in the street in New York, after he had lef t the building where the examiner's office was, and a few steps therefrom, with a subpœna to appear and answer in this suit, and with a copy of the bill and other papers in this suit, and notice of a motion to be made for an injunction herein. The bill in the suit was filed November 2d, and is a bill for the infringement of the same letters patent. The defendant now moyes to set aside the service of the subpœna and the other papers on the grouud that the privilege of the defendant was violated. ��� �