The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1859-08-13
THE INDIA RUBBER CONTROVERSY.
statement of Mr. Judson's Counsel
ro THE EDITOR OF THE HERALD.

Ss.i.ment Of Mr. Judson's Counsel.
TO THE EDITOR OF TIE HERALD.
find five columns of your paper to-day occupied
nv letters from Mr. Day and his counsel in reply to
M mdson's statement published by you some days
since: and in the absence OF MIR. Judson from New
York, will take little space to reJon TOR him. as
well as for myself, hoping to dispel the mist which
all this writing has cast on very clear subject
Mr. Judson's statement, endorsed by myself
amounted simply to this that Mr.. Day and he being
both claimants of the right to use vulcanized rub
Der in woven elastic goods, Mr.. Day has brought
some suits in Baltimore against parties selling such
goods, who were common trespassers upon some
ones rights that in the progress OF these suits Mr.
bay and the defendants agreed to make a case for
"fnal hearing out of a mass of er pdrte affida
Wits, the contents of which were in part I'M
known to Mr.. Judson or his COUNSEL; that this
final hearing, thus amicably arranged, was had
before Judge Giles without the aid or procurement
of Mr. Judson, and without tie presence Of counsel
familiar with this elaborate and involved contro-
versy; and that the decision rendered upon this
case proves no more than that Mr.. Day beat Mr..
Stellman upon the thus made, and the argu
ment presented on it. Mr.. Judson asserts further
that his rights are the subject of suit directly
against Day, and will be determined in that suit In
my letter simply stated that, as Mr.. Judson's
counsel, knew nothing of the case made before
Judge Giles and was ignorant that there was to be
final hearing, and that Mr. Judson had, upon due
consideration and advice, decided to take no part
in the controversy at Baltimore.
The effect intended to be produced by this letter
Of Mr. Judson was to guard merchants and Others
against the false impression that his rights had been
settled, and to notify all persons interested that he
was in the due of suit asserting his title,
and that, when established he would hold all per-
sons liable who infringed it.
In reply five long columns Of print are produced,
which, so far as | see, do not deny any statement
made, except that which relates to the final hear
ing although some arguments used to cast doubt
upon their truth. The single question is, whether
Mr., Judsons title is settled by this Baltimore pro-
ceeding? He was not party to the suit; he never
tba IN n. hp a Init
once, for few minutes; he did not know what the
case was which was to be made; but he does know,
as know that he is in possession of much stronger
proof to sustain his title than has yet been produced
in any of these controversies Under these circum-
stances Mr.. Day and his lawyers insist that Mr..
Judson's title is settled l insist than no mans
rights can be settled unless he is party to the
suit and is allowed TO prove his case and be heard
in il. Lawyers know how absurd the proposition
is that any man can be judged without hear
ing; and laymen can easily see how unjust it would
be. One reflection, however, must strike all minds
with force-that Days case must be very despe-
rate one, when the best proof of its validity lies in
the fact that he has beaten stranger to the title
upon a consented hearing although he was beaten
on the same question when Mr.. Judson defended
the parties.
Much stress is laid upon the fact that this Balti-
more suit ended in " final hearing" and Mr.. G. A.
Seward is selected to contradict Mr. Judson in this
particular In his letter he assumes to restate Mr..
Judson's letter in this anguage:-
at is further alleged
al. That this. e.. the Baltimore hearing--was
not final hearing
Now, sir, Mr.. Judson made no such allegation In
his letter. Here are his words:
The facts of the case are as foows:-
a. This was not final hearing except by the
consent of some strangers to me, who have no in
terest whatever in the title, and whose consent is
just as valuable to affect my rights as the consent
of Day is that they shall be Affected"
When SO plain statement as that of Mr.. Judson
can be so perverted in the face of the world what
are we TO expect when statements are made whose
truth is more difficult 10 ascertain!
Mr.. Seward then says:--
First. That this was final hearing, not by con-
sent, but upon peadings and proofs This aver
ment admits of no misconstruction 1t Is either true
or false to the knowledge of Mr.. Seward and his
party-they were there, and cannot be deceived.
Mr.. Seward is a lawyer, and knows what final
hearing is and whether it is one Iby consent or
"upon the pleadings and proofs. He clearly recog-
nizes this distinction, and plainly AYERS that this
hearing was mot by consent" but was upon the
pleadings and proofs"
What this distinction means will explain, in or
der that the public may appreciate the value OF
statements resoIted to in this case.
When plaintiff thinks himself injured, he may
file his bill, and give the defendant notice OF mo-
ton TO be made in court for injunction. The de-
fendant may either oppose that motion or permit
il TO 90 by default, the Baltimore defendants did
ii he choose the latter course, he may file his an
swer, and serve it on the complainant with notice
of motion to dissolve the injunction, which motion
the Court is bound to hear. This was the motion
which supposed Mr.. Marshal was about to make;
and, as any lawyer knows, it would have been the
proper one to make, if the defendants intended to
avail themselves of all legal defences. Day knows
well, for upon such a motion The New England
Car Spring Company" dissolved conditional IN
junction against them, which he had induced Judge
Belts to grant upon the Chafee patent, when he set
up his false claim to it, and filled the newspapers, as
now with his advertisement of that opinion in his IA
vor. After the filing of the answer the parties pro-
coed to take proofs for 'inal hearing ;, and to
alsa tbnsn np
Witnesses are called, examined and crossexamined
in the presence of both parties; irrelevant testi-
mony is objected to, and the truth is sted out by
the most trying process known TO the human intel
lect. When both sides have closed their proofs the
case goes to "tnal bearing and this IS the only
proceeding known to the law las final hearing
upon the pleading and proofs" Ii the reader OF
this have any doubt about the correctness of this
statement, ask any lawyer except Mr.. Seward, and
Mr. Seward in any case except this.
But final hearing by consent" may be any
thing you please. Parties to litigation may con-
sent to go to final hearing upon the pleadings, and
a copy of scotch dictionary if they think fit
The case is in their own possession, and if the de-
PENDANT consents that he has defence, the Court
will so decree but that cannot affect any one but
With this explanation the question recurs whether
the Baltimore hearing was, as Mr. Judson AYERS,
final hearing only by the consent of parties not in
terested in the title, whether it was as Mr..
Seward AYERS, "a final hearing not by consent, but
upon pleadings and proofs" The only evidence
have upon the subject, except letter from Mr..
Marshal, dated July %. is what the public have,
and that sustains Mr.. Judson, if the witnesses
credible. Judge Giles in his opinion, thus states
the manner in which the case was heard
Two agreements have been fled in tbis causecne sst
ting dowp for final hearing and arranging the
of decree, the Court shouid decide in favor Of
the complanante to dispense with the trouble and
ceay Of taking account and the other in reference TO
the testimony which the has been heard So tnat
the been heard tbeee dnal
hearing, and lie now before the Court for final decree
If there could be amy doubt whether the Judge
or Mr. Seward told the truth, that would be dis
PEELED by Mr.. Latrobe's letter. which precedes Mr..
Stewards, on the same page. He thus states it,
Mir. Harsnal, acting for all the parties sued, II was
agreed, with view Of obtaining at The earles. day and
with the eas! expense the decision OF the Supreme Go
uLied Sates TO Bet The down final hearing upon
bill, answer and the testimony that had been before
Jutge lngerso the motion FOR preliminary injunction.
With this view certified copies OF all the New York alda
were procured, additional testimony both sides
Lat n durith ma q