The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-10-10
Before Hon. Judge Roosevelt.
THE CASE OF THE INDICTED ALpERhEs-PLEA IN
ABATEMENT.

Before Hon Judge Roosevelt
THE CASE OF THE INDICTED ALpERhEs-PLEA IN
ABATEMENT.
cf.S-At the sitting o5 the Court this morning the
Judge read written decision refusing the motion 70
auash the main feature which reported in yes
te-day's Herald.
Mr. Brady then read the plea Of Alderman Herrck TO
the indictment II is in abatement, and denies the quaih
cations Of the foreman OF the Grand Jury, has compe-
ucy TO administer oath, by Of hs non-resi
dence in New York This plea was verified in the usual
manner by afdavits Of persons residing in Flushing,
who stated to the best Of their belief that he had been
z resident OF that town since the spring Of 1851
The District Attorney remarked that he had his doubts
the sucency in law OF this plea but ne had no
waive any demurrer thereto, being perfectly well salts
fed that he could prove that the foreman was amply
qualified to act SUCH He proposed therefore to hie
replication to the plea which he accordingly drew
upon the spot and read TO the Court II denied the tact
set up in the plea and prayed that theissuc joined might
be tried by the Court.
Mr. Brady objected to this form Of the replication.
Tho District Attorney replied that the form was cor
rect, issue joined plea in abatement, wnicn is
datory plea always tried before ne 'our Without
the intorposition of jury.
Mr. Brady commended that the issue was nevertheless,
one Of fact all such issues could be tried only by
they .hey trial re asAe' 'A' ''1'' "pp0'-' - ' - -
The Court thought that the rule heremust be the
as IN civil cases Ia which issues OF this description Joined
on a diatory plea, always 60 to jury
Mr. Whiting explained, at considerable length, the law
Of subject settled by practice and by various Eng
hsh statutes from which have been modelled.
He conended that it was well settled that issues of fact
diatory pleas should always go TO a jury. In the
present case II the verdict should be against the defen
the issue raised by his plea he might plead to the
charge contained in the indictment.
The Court remarked that it did not remember to have
instance where plea in abatement had not
gone 10 O jury, either ia civil or criminal suits.
The District Attorney under the impression that
he had never known instance in which such plea
rad been tried by jury but upon consulting the books
he consented to waive his point and 70 alter the replica
sion, that should pray that the issue might be tried
by Jury, and no. by the Court.
Mr. Brady again urged that day be set down FOR Al
herman Berrcks trial, ard suggested Monday before
which time he could not be prepared Tor the trial The
Court remarked that great deal Of the time Of the
Court seemed to 30 wasted IN these constant postpone
ents Of business Two circuits had been assigned for
feared The calendar would be welIed
tent while he sitting here doing comparatively no
thing
he asked why the calendar Of this Court could not be
relieved OF all the murder cases in accordance with the
act OF the last Legislature allowing such 20 be
transferred to the Court Of General Sessions The Dis
rie Attorney replied that after next week there would
be nothing 70 occupy the Court until November, the
murder casee with the exception OF those connected
with the death OF Poole would then be transferred, and
the OF the indicted officials disposed Of He had
also given notice 10 Judge Stuart to hold himself in
diness for trial on Monday next.
Mr. Brady proposed to The District Attorney to fiji up
the interval BY trying Aldermen Drake and Moser who
ready and anxious for trial This, the District
Attorney declined for already stated by him. In
the exercise Of his discretion he had decided TO have
Herrick tried first, and the others afterward He
ready to try Herrck tomorrow but the order OF trials
must be preserved.
should be set down Tor the trial Of Alderman Arson
Uegrick.