PLIMPTON 'V. WINSLOW.
(Oircuit Oourt, S. D. New York. November 12,1881.)
1. ST.tTE COMl'rY-SERVICE OF PROCESS.
A party to a suit which has 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 commenced in a circuit court in another' state, while attending there a regular examination of witnesses in the former suit.
In Equity. E. N. Elliot, for plaintiff. Wetmore, Jenner et Thompson, for defendant. BLATCHFORD, C. 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 c'husetts. Prior to November 2,1881, it had' been verbally agreed between Mr.Rol>erts, the counsel for the defendant; and Mr. Clark, the counsel for :the plain· tiff, in the suit in Massachusetts, that, the. defendant might have testlimQny on his behalf taken the city of New York for·use that suit .bf3fore Mr. Thompson, as a special examiner, and Mr. Clark verbally agreed to atten,d befor8 Mr. Thompson at any time, on telegraphic notice, for the purpose. Such notice was given that, the plaihtiff, 'together with the defendant and Mi. 'Roberts, attended in New 'York,before Mr. Thompson, on November2d/! Mr. Clark was not: present on that day. Witnesses were examined on' that day <)n behalf of the defendant, before 1fr. Thompson, by Mr. Roberts, as cOUnl!l1l1 for the defendant, with the of the plaintiff, who was '1ll.\ring the examination, and It between the plaintiff and Mr. Roberts that Mr. Clark should have the right to afterwards cross-examine the sald'witnesses 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. Roberts, signed a stipulatlon In writing, dated November 2d, and entitled In the Massachusetts suit, stipulating anli agreeing that Mr. Thompson might be appointed a special examiner by the court of Masl!lachusetts to take the testimony for the defendant in the suit in New York, 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 left the building where the examiner's office was, and a few steps therefrom, with a subprena 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 mo,ves to set aside the service of the subprena and the other papers on the ground that the privilege of the defendant was violated.
It is very clear that the motion must be granted. The defendant attended as a party before the examiner. The regularity of the examination was recognized by the attendance of the plaintiff, by the arrangement he then and there made for future cross-examination by . Nlr. Clark, and by the antedated written stipulation which Mr. Clark signed the next day. The examination was thus made a regular proceeding in the suit in Massachusetts. The defendant had a right to attend upon it in person, whether he was to be himself examined as a witness before Mr. Thompson or not, and he had a right to be protected, while attending upon it, from the service of the papers which were served in this suit. He attended in good faith, the examination was pending and unfinished, and he was served during the interval of an adjournJll.ent. The privilege violated was a privilege of the MasSaG1}.usetts court, and one to. be liberally construed for the due administration of justice. Juneau Ba,nk v. McSpedan, 5 Biss. 64; Brook8 v. Jj'arw(!ll, 4 FED. REP. 166; Bridge8 v ·. Sheldon, 7 FED. REP. 17,42. The only objections urged against the motion are technical onestha.t'the written stipulation was not signed till after the service was made; that there waS no order as to the examination entered in the Massachusetts court; that no formal written notice of the intended e;x:amination was served; that the sitting before the examiner was, ,therefore, unauthorized; and that the written stipulation cannot have an effect as of a date earlier than November 3d.lf these objections were allowed to have force, the plaintiff would only be place<i in the pdsitionof having, by the prior verbal arrangements made, sancti'oned by the subsequent action of himself and his counsel there. under, decoyed the defendant to visit New York by deceptive inducements,' and thus the case would be brought within the prjnciple laid down' in Union Sugar Refinery v. Mathie88on, 2 Cliff. 304, and in Steiger v. Bonn, 4: FED. REP. 17. The plaintiff and his counsel, by what they said and did, represented to the defendant that the proceed'ing before )lfr. Thompson was' regular and orderly and authorized, apd induce'd him to rely on .that view. He had a right, as a party to the Massachusetti;l \:mit, to attend a regular examination of witnesses' in that suit in New York, and to be protected,whileso attending, frqmthe service 6f the papers in this suit. The plaintiff is estopped from raising the objection as to regularity. The motion is granted.
MARVIN 'V. ELLIS.I)
((Jircuit Oourt, E. D. Louisiana. November 15,1881.)
PROMISSORY NOTES-ACTION ON-PARTms. .
The assignee of a mortgage note can bring suit upon it, whoever the rea} owner may be, unleBB it was assigned for the purpose of depriving the mortgagor of a substantial ground of defence against the real owner.
The circuit court has no jurisdiction of a cause on the ground of the citizen.' ship of the parties, where tho nominal parties to the suit are not the real.par.. ties, but have been made parties collusively, to bring the controversywit;hin the jurisdiction of the court.
In Chancery. On demurrer to croBB-billfor injunction· .Complainant filed a bill in equity to foreclose his mortgage upon the plantation of defendant, and, under the statutes of Louisiana, prayed for a writ of seizure and sale, dJrected to the marshal to seize and sell the to pay his debt, which writ duly issued, and the plantation was seized and advertised for sale. The defendant then appeared, and, under a rule of this court, filed a cross-bill, in the nature of what is known in the state practice as an opposition to the writ of seizure and sale, and alleged that the plaintiff was not the true and lawful owner of .the mortgage notes sued upon, but was a party interposed for the purpose of giving jurisdIction to'this court i the real holders and owners being Citizens of the saine ,tate as defendant, an!l against whom defeI!dant had equities to plead,'which he sets up. Complainant then filed a general demurrer to the cross-bill, and the case was argued on. that·
.Geo. L. Bright, .for compHiinant.· . ,NiehaUs cf; GarroU, for defenda;nt.
PARD:E1E, C. J. Everything alleged in the petition or cross-bill of defendant may be true, with the exception hereafter noted, and yet he¢an have no relief-is entitled to none;. assignment to Matvin of the notes sued on, no matter what the interest actually conveyed, vests the title sufficiently in him to sue; and Louisiana authority is clear to that effect. Defendant. has no right. to inq1lire the plaintiff, in whom the legal title, appears to be ves.ted, an or the real owner, unless, by a fictitious assignment, it be attempted to deprive him o.f substantial grounds of defence whichpe may have against the true owner. The judgment will be res ad;iudicata everyone who might afterwards claim an interest in the note Or biil. See Hennen's Digest, 180, No.5, 8,nd authorities there cited, larly 14 La. 256. The plaintiff having a sufflcient title to bring suit, tl,nd being a citizen of another state, while the. defendant iaa citizen of this· state, the suit may be brought in this court. . See section 10f
-Reppl'ted byJ.oseph P. Horner; Esq.,ofthe New Orleans bar.