Pursuant to the order and notice, one of the defendants went to Keokuk for the purpose of attending upon the taking the depositions, and was there on the morning of the day named, when at 15 minutes before 10 o'clock the orator, by his attorneys there, who were also acting as his attorneys in this cause here, caused process by summons to be served upon him in a suit in the state court of Iowa in favor of the orator against these same defendants, upon the same contract and cause of action involved in this suit. The defendants filed in this cause a motion for an attachment as for contempt, to which the orator appeared and avowed the bringing the suit there, and an intention to prosecute until that cause or this should be ended; but alleges that he had no expectation that any of the defendants would personally attend the taking the testimony, nor intention of bringing the suit there at the time of procuring the order and giving the notice. This motion has been heard on argument of counsel. This order for the taking the testimony was one which the master was fully authorized to make by the provisions of equity rule 77. The privilege to parties to judicial proceedings, as well as others required to attend upon them, of going to the place where they are held, and remaining so long as is necessary and returning wholly free from the restraint of process in other civil proceedings, has always been well settled and favorably enforced. It is mentioned in the Year Book, 20 Henry VI. 10, and enforced to protect not only the body of a suitor from arrest, but his horse and other things necessary for his jour ney, which would otherwise be attachable, by the custom of London, from seizure for debt. Bac. Abr. "Privileges," 4, 17, 55; Sellon's Pr. 123; Meekins v. Smith, 1 H. Black. 636; Norris v. Beach, 2 John. 294. It extends to every case where attendance is a duty in conducting any proceeding of a judicial nature, (Bac. Abr. "Privilege," B 2; 1 Greenl. Ev. § 317;) to attending upon an arbitrator under a rule of court, (Spence v. Stewart, 3 East, 89;) upon commissioners in bankruptcy, (Arding v. Flower, 8 T. R. 534;) to witness giving a deposi tion under an order of court, (1 Greenl. Ev. § 317; U. S. v. Edine, 9 Serg. & Rawle, 147;) and to a party inquiring after

evidence under leave of court, (Bac. Abr. "Privilege," B 2.) The privilege arises out of the authority and dignity of the court where the cause is pending, and protection against any violation of the privilege is to be enforced by that court, and will be respected by others. Hurst's Case, 4 Dall. 387. A writ of protection issued out of that court is proper, but is not necessary, except for convenient and authentic notice to those about to do what would be a violation of the privilege. It neither establishes nor enlarges the privilege, but merely sets it forth, and commands due respect to it. McNeil's Case, 6 Mass. 264; 1 Greenl. Ev. § 216.

In Hall's Case, 1 Tyler, 274, a writ was actually issued. It commanded all civil officers, and other persons, to abstain from executing or serving any civil process upon the body. The court said that the object of the privilege was that the person should not be drawn into a foreign jurisdiction, and there be exposed to be entangled in litigation, far from his home, which must ever be attended with augmented expense, and that the writ suspended all civil process against him. The service made in that case was by arrest, which was common at that time, but an exposure to service by summons would be equally an exposure to distant and vexatious litigation, and within the mischiefs mentioned by the court. party who could not attend to his suit without being liable to such service, would be under personal restraint from which those engaged in the administration of justice have a right to be free. Halsey v. Stewart, 1 South. 366.

A

In Miles v. McCullough, 1 Binn. 77, the defendant, while attending that court, was served with a summons at the suit of the plaintiff, and moved that the service be set aside upon the ground of privilege. The plaintiff contended that he was privileged from arrest alone. The court said that it had been repeatedly ruled that he was equally privileged from the service of a summons, and set the service aside. This service, so near the time of commencement of proceedings, was probably in the constructive presence of the authority acting under the order, which would of itself be a contempt. Blight v. Fisher, 1 Pet. C. C. 41. It was imposing upon the defendants

the defence of litigation there, from which they had the right to be free, by those who knew all the facts on which the exemption rested. Bac. Abr. "Privilege," B 2. The most difficult question is whether they can have relief here. It is said that this court has no jurisdiction over the proceedings in a state court, which is true. The statute regulates this. Rev. St. U. S. § 720. Watson v. Jones, 13 Wall. 679. But this statute did not prevent the United States circuit court from releasing a defendant from process out of the supreme court of Pennsylvania, violating its protection. Hurst's Case, 4 Dall. 387. The object is not to restrain proceedings in the state court, but is to prevent abuse of the privileges of this court. This proceeding, of itself, has no relation to the subject of litigation in the state court, but rests upon the fact that a litigant in this court has been drawn into litigation there in violation of the protection which all courts furnish to litigants before them, without regard to the subject of that litigation. That subject has been alluded to merely to show full knowledge on the part of those engaged. The proceeding rests upon the idea that what was done was a contempt, which the court should punish. 1 Greenl. Ev. § 216; McNeil's Case, 6 Mass. 264. Still, this court, as are all federal courts, is limited in its power to punish for contempt. Their power extends only to misbehavior in presence of the court, or so near as to obstruct the administration of justice, or of officers of the court, and to disobedience or resistance to any lawful writ, process, order, rule, decree, or command of the courts. Rev. St. U. S. § 725.

The master was acting under the authority of the court when he made the order. A disturbance of the master's proceedings would have been a contempt of the court; and, had any one undertaken by force to prevent the defendants. from attending the examination of witnesses ordered, probably no one would contend it was not a contempt. This interference was of the same nature; still, it is not punishable as a contempt unless it was done in disobedience of, or resistance to, an order of the court. This does not mean a written order always, but only an exercise of authority, con

stituting 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 shown, the actual 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, 6 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 conduct of the orator constituted 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 imprisonment. It appears that the suit has been removed to the federal 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. REP. 17; Sugar Refinery 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 It is due to the proper administration of justice that the suit should be ended before the orator has relief here. This can be accomplished now by stay of execution 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 his 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 confirmed, and a decree ordered for the orator for the amount due, allowing interest at 9 per cent. on balance due the defendants,

with five-sevenths of the orator's costs, after deducting twosevenths of the defendants' costs, and the expenses to the defendants of the suit in Iowa, including reasonable counsel fees, to be taxed by the clerk, which are allowed as a fine against the orator, with a stay of execution until evidence of the discontinuance of that suit is filed.

EGBERT and others v. CITIZENS' INS. Co. OF MISSOURI.

(Circuit Court, E. D. Missouri. March 28, 1881.)

1. DEPOSITION-CAPTION-NAMING PARTIES.

Where depositions are taken de bene esse, under the act of congress of May 9, 1872, in a case in which there are several parties plaintiff and defendant, it is not necessary to state in the caption the names of all the parties to the suit. It is sufficient to give the style in the case thus: A. B et al., plaintiff's, v. C. D. et al., defendants. 2. SAME-SAME.

A caption sufficiently shows the reason for taking depositions if it states where the depositions are taken, without giving the distance from the place of taking to the place of trial, if the distance is in fact, and is well known by all parties to be, more than 100 miles. 3. SAME-CERTIFICATE.

Where an officer by whom depositions are taken seals them up, marks the style of the case on the envelope, directs them to the clerk of the court in which the case is pending, and writes the usual indorsement across the seal, and the depositions are received by the clerk to whom they are addressed, through the mail, held, that the certificate to the depositions should be deemed sufficient, though it fails to state that the officer delivered the depositions to the court in which the cause was pending, or that he sealed them up and deposited them in the post-office.

Motion to Suppress Depositions.

E. T. Farish, for plaintiff.

O. B. Sansum, for defendant.

TREAT, D. J. The several plaintiffs named in this suit, according to the petition, were copartners doing business in San Francisco, California. The defendant, being a Missouri corporation, had an established agency in the former place, and its agents there drew a bill of exchange on the defendant