Ex parte Judson

| U.S. Circuit Court for the District of Southern New York | Nov 22, 1853

NELSON, Circuit Justice.

Several grounds of objection are set up, on the part of the witness, to the granting of this motion. Among other things, it is said that the suit is an amicable one; that the contending parties in it are in fact identical; and that the purpose of examining the witness is to obtain evidence from him, to be used, not in the suit in which the subpoena was issued, but in other cases now pending in which the witness is interested, and in which such evidence may be used to his prejudice. It is also intimated, that the suit is a fictitious one, got up to enable the parties to -it to examine this witness. He states, in .an affidavit made by him. that the defendants in the suit claim to derive from him their right to the patent for the infringement of which the suit is brought, and under which they are carrying on their business. We incline to think that we ought not to regard as sufficient these grounds of objection set up by the witness. We are bound to assume that this is a pending litigation, carried on in the usual way and affecting the rights of the parties to it, and that the defendants are entitled to all the usual methods of obtaining testimony. Judson is not a party to the suit, aud seems to be a competent witness. And. if it is true that the defendants claim a right derived from him, so far his testimony may be very material to their rights in the litigation. We therefore think that we cannot look into the matters set up to impeach the good faith of the proceedings, and are bound to presume that they are carried on in the usual way. This is neither the time nor the place •to impeach their bona fides. The proper place to do so is before the court in which they are pending, and, until a determination by that court, condemning them, is procured, we must assume that they are prosecuted in the usual way.

The question of practice involved in this application was new to me, never having arisen before me. I therefore referred to the district judge, who lias had more experience in such cases. I had seen a notice of a case decided by him somé years ago, in which he recognized the principle involved in this motion. Our views in regard to ■ it entirely concur. I mention this that there may be no doubt hereafter on the question. The attachment against the witness must be issued.

[A motion was subsequently made for an attachment against the above party to compel him to answer a question put to him on his examination before a commissioner. It was denied. Case No. 7,563.]