The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-08-02
Judge Beta and MIR. O'Conor.
NEW YORr. Julv 40. 165

SUo&S 0Stt1 ana ME- O'VOnoTs
New YoRK, July 30, 1854.
TO TIE EDITOR OF THE NEW YORK HERALD
SR-The enclosed letter from Mr.. O'Conor to \
Gerard relates to an occurrence in the India rubb
suit of Day against the New England Car Sprir
Company, which elected from Judge Belts, at Il
close Of that case, observations recently pubisht
in the HERALD, with editorial comments. It seen
Just that Mr.. O'Conor's letter should also appear
your columns. Considering the public use made
the Judges decision and remarks, it is proper
state that the proof offered was not objected to fro
any desire to prevent the most thorough insestie
ton Of Mr.. Judson's conduct, but because the con
sci for the company, including Aessfs. O'Conor a
Gerard, were certain that by the well settled ru
of law the proposed testimony was clearly inadm
sable, and that if all Mr.. Judson said or did We
proved nothing would appear to invalidate the til
of those who claimed under him, or to convict b
Of any moral wrong. 1t was therefore deemed Q
yisable to prevent if possible, the useless consun
ton Of time that would occur in adducing the pre-
offered. Respectfully your obdt servt.,
JAMES T. BRADY
IN THE CIRCUIT COURT OF THE UNITED STATES
THE SOUTHERN DISTRICT OF NEW YORK.
Horace III. Day us. the NeU England Gar Swl
Company-Early in July, 1863, Horace II. Day
came assignee of all the then subsisting interest,"
Edwin n. Chaffee in the extension Of pat
granted to said ChafSee. The defendants had q
the patented Improvement subsequently to such
signment, and this action at common law '
brought to recover damages for such uses o. an
fringement. The defendants set up in their defel
certain agreement in writing between Chafsee
one William Judson, dated September s, 1850, 6
license to the defendants, made by Judson,
fessedly under and In pursuance Of thep powers ves
in him by the said agreement. The cause was {,
before the Hon. Samuel R. Belts, District JUG
and jury. In the progress Of the case, it was
serted by counsel that the instrument dated
tember s, $780, was not duly sealed by Chafiee. n
before any doubt was suggested as to that fact.
after the subscribing witness had sworn that CT
fee, when Of full age and sound mind, lsbOrinr
der no incapacity, with full knowledge Of the
tents Of the paper, had knowingly and intentions
sealed and delivered the same, as his act and d.
the following question arose upon the trial =,
plaintiff proposed to prove, by oral testimony Of
nesses, that Judson was the attorney Of Chane
procuring the extension; that in order to ind
Chaffee to consent to and to execute the said agl
ment, he had threatened unjustly to harass and
W.
out Of employment, and had made divers false
fraudulent representations touching matters Of
and fact to him, with o view to deceive and defr
him, (said Chafee) and induce him to consen
execute said paper, and become party thereto
There was, Of course, no p Pretence that the g
Part 8, Oh. Z; Title 8, Art. 8; II Howard's U. s.
36l TO 367-or that the New York Code Of Prac
was applicable.
The counsel for the defendants objected to
said evidence, on the ground that an agreement
writing, under seal, could not be impe ached in
action at law between privies-such Is the pre-
action was conceded to be-by any such evidel
that upon the trial Of such case before iutv
evidence was wholly inadmisible for the purI
Of vacating annulling or impairing the effect Of
agreement, and that the only mode Of obtaining |
kind Of relief upon such testimony was by bill |
equity,
But the Judge said that, Of common right, ftM +
lent representations, (though not In any wis p
fecting the fact of due execution,) and by which
party was deceived and induced to execute an q |
ment under his seal, might be proven by parol |
fore jury in an action at common law, for the
pose Of avoiding the agreement, to the same ext I
as in equity; and that, II satisfactorily proven,
would render the agreement void at law. And
accordingly ruled that the evidence SO offered
the plaintiff was admissible.
The learned Judge promised this decision BY
ing the attention Of the jury to his remarks .
also referred to the great and unusual length |
time which had been consumed in the argument
this Incidental point, and stated that the primo
announced in his decision and the practice undo
were so familiar that he did not doubt but q
sion to the same effect could be found in every
lume of Johsson's Reports.
Now, my dear sir, having been the counsel
alone argued the said points for the defendants
having occupied abou. four out Of the six OF q
hours which were devoted TO its discussi
am constrained 10 regard the remarks Of the LEI
"a Judge as involving an impeachment Of my
sonal and professional character. His Honorsst
ment clearly imputed gross and inexcusable il
rance upon point with which every law student
wilful waste Of valuable time in urging at a
length an objection which was sure to be overr
BY any Judge Of ordinary learning and experiel .
Therefore, to vindicate myself as far a. practice
from such public aspersion, hereby deposit
you my check for 81 900, payable to your orr
George Belts, II, at any time within six monthsfi |
the date Of this letter, he shall produce you any
such decision in any volume Of Johnson's Repo
OF II ne shall produce to you certificate in writ
rom any OF the aforementioned persons that th
In the opinion Of the writer Of the Certificate,
Aforesaid opinion and decision of Judge Belts
conformable to law. The persons. any of VII
may give such certificate, are as follows:--The
judges Of the Supreme Court Of the United States;
Cus Iuages q the Court Of Appeals Of this States
a.
the six Judges Of the Superior Court; the til
Judges OF the New York Common Pleas; and
judges OF the District Courts Of the United Ste
trict. 'S---e 'A's
u this offer was made to the author OF the
cision, 1t might not be deemed entirely respectful
the Court; and therefore il ia made to one who, b
rom MS relation to the learned Judge, and from
circumstance OF his being Of counsel for Mr.. Day
some Of these lnaia rubber controversies, will fer
natural and proper readiness to vindicate the
rectness Of the decision.
II the point were not as familiar az the lear
Judge himself stated it to be, and as every Iawye
any experience will admit it to be, It might be
proper to suggest reference Of it in this form
any judicial person. But when a useful pHrp,
may De served thereby, presume Judge n
the common legal truisms which are uniyersa
known and admitted by the bench and the bar.
IL may not be amiss to add, as an additional rea
lor TINS conclusion, that his Honor's decision cam
come under consideration hof.,ro orx, (torr< Of