New-York tribune., 1874-12-04

the parties. but think 1t would aiu '"o .'-. |
Of justice, If that question could oe propoi'
ard save tha expense of preparation. IN |
% T1a Con,fWha1 order make on the record 10 ne
pursuant TO the orderly disposition oil the CAUSE D''
mss % the sur Fr,leron-Refuse to entertain Jurisdiction
The Court don't tninS that is an orderly course Vi
PTyJndgS Fucrtou-It has been the practice OF the
Courts heretofore. and II have not been mistaken; IL
mnsi be taken into consideration by your Honor in dls
posing OF this question. If the Court has no JulsugeUt
itself aud Thought it proper subject to bring to the
attention Of the Court IN order that IL SO s"' w
GEN. TRACYS REMARKS.
Cen TracyIt seems TO u.s. II your Honor please tha'
they make no ground for the posponemcnt OF hs case
II true rs the counsel the complaint that the
allegation is that OF residence rather than tnat vi
citizenship. That discovered soon ai'er 'ne oo"-
plalnt was served. and on one OCCASION when .he ue
fendant was applying for time TO answer ealeu MS
attention 10 that fact that there was an averment OF
residence rather than citizenship in the COM
plaint and that 1 wanted them 10 give me
stipulation TO amcad the complaint. The coun"
sci objected. saying he had no authority TO
stipulatc, and Gen. Butler had control of the
cause preferred should write to him on the subject
called MI Buffers attention to IT. and requested him
10 send me stipulation 10 amend by striking out the
word rc> ienco" and inserting the word citizenship;
but received answer, and day or two afterward
the defendant IL the called upon me with this
note say. that Gen. Butler had left New York before
II reached um and wanted To know whether he should
purpose aLd rtQuCstcd to send 10 Gen Butler lie
said he would d. SO. and suggested that wouT I'm nn
douhtcdIy hear from Gen. Butler IN n few days. Ine
went on and the answer was fled BY Fnlerton ana
EnCX his t.orncvs OF record IatrIbuted Gen. Buffers
not scu!ua the stipulation 20 inadvertance or enl-
pioNmcnt. and had relied upon the fact that II any
question were raised objection would he made
Gccausc ;h,y knew perfectly well that my attention
had been ccd To II: and had asked for stipulation
profession ouid he made. At least did not doubt
that when Ga, cause moved for tnal proposition
denied Nov thcsc the Obstacles but your Honor
please ro t uether u Is 50 clear mat an aSermehV
ship. Ia m the supreme Court OF the United
states r drnided that ayerment that person IS
citz Of tnr United states, residing within par.eu
lar S.1tc. IS cG"l'alent 70 an aVefhehs 'mnt @
nccossar T. aver citz ,nshp OF particular State; and
it seems o. ae tns covers the question: Al all
mat II thew dii not supulae that might amend in
advance of the trial. We supposed that amenoment
io'uI INV nrc15rlfion to meet the issues they
have set up w their II they wanted 10 raise
~ tSrV na3 done ta formal motion would have been
free to say that wmle 1 think the decision |
have las: cited covers the case, yet Of thus i'm
n"ray, we should not desire TO any doubt upon
the record where II could be waved or clred Dy 50
simple a motion that to amend. And they had notice
tbn we were expecting Try this al this term. and
try it toIly. IDey mad ample notice Tne associate
counsel o tAc gentleman had notice last week tnat niS
cause WOud b. moved aud pressed to trial to-day ana
the that tney supposed IL might be or US
amend cur coinpaut upon the tlai' Ior Una" - ne
most it amounts 10, seems TO me- furnishes no excuse
coming mere cnUftiN W ulcct
the issues they have raised by their answer.
Ex-Judee Folertou-Ihe authority to which the gen.
tlenan aIu,., not help hm Oui OF his teuty 1t
was there held that allegation that the palntlH was
citizen OF the United states was equivalent TO say
Which he re.iici TnaJ the allegation here There
is DO ALI CATION Of citizenship OF the United States They
are euicv silent upon that subject TINS question has
~ -. W az 49, al isbincton and elsewhere of bare
allegation OF residence and nothing else ana there Is no
to be fouud Ia he 6ooA: "1ere' IN an instance
Is "A
were informed the case would be pressed. that
eaHse' bceiuse If they ready Try cause in
court whicl had jurisdiction, OF course ther read-
wond sl cNist aud stll br insisted upon They were
aware OF dc point They acknowedSe that th9y wahted
suIi Ct | was not addressed on the subject at an
What has taken place between my assota'e M anu & Ino
mCut lave not been fully informed Of All do Know
is it has not been amended and lhe objection III NY
Jadse wo6IfaiI inquired if the NewYork Code in
Mr' f'oNSoI the counsel should
,oLnn aUvsut ,re OF TINS by demurrer. That has
heen tIr pr!cre OF The Court. You not bound TO
oenur 10 comp aut declaration on the ground that
the Couri has no jurisdiction. Ii is matter taa can
he taken advantage any time during the progress
of the case NJ consent can give jurisdiction 30 lar as
there is OF proper allegation, II not before the
Cnnrt a al aud cannot before the Court in that
shape. A TO the question Ot anehdineht upon the
trial. not got 10 point where 1t Is necessary
MI Tracy-The point now is whether we are to post
pOne. Tue cIuse beng set down ior tue term they
could not rely upon technical Objection 10 make no
preuAratlOu trial at all. Nucu we redcn Ihe
question Oi anenhmeht' theh ~ Is unc W 'na
Inc question are now considering IS whether II was
not his duty come here prepared Tor rai anu sustain
the issues raised by his answer.
Fx J1dae II cr;on-It technical objection; it
IS considered technical objection where the )ulls
dicton Is called into question. Tue counsel was aware
of cCntOn OF the papers and was not inlsled' ne
Xas i'm condition tnat defect II he saw fiji TO
do so. TAcfc another way before MN where we
could throw 10 obstacle in hls lath ne eOud nave a
nucd 10 the Court amend, he could have dlscOn
Ilnued and brought another action lie was uhder no
Obligations 10 consent to an amendment. nc IS not
rftr.-a
Court wac assured Of that upon our sde we relied upon
gOod IdiH' anu -, .one we nave nor rnaJn
that pre- paratOn the defense OF the case which
was Necessary TO make, and which eau make If time
Is afforded Us.
A POsTPoNEMENT ORDERED.
Judge Woodruff shall decline to enter into the
INQUIRY whether this declaration is defective or not
a disposed however to give some heed to the state
meut of the defendant that he believed and that his
counsel advised him that tie objection would prevail
here and that they accordingly advised their client
that II was an unnecessary and practically useless
expense to prepare himself for the trial OF the
ANY general misapprehenson touching the practice or
the Court and rules OF law, where well settled, should
be known but yet IN the early stages OF the case and
where there is danger Of injustice, the Court VIII
recognize the defendant and take preliminary steps for
his protection and defense. in misapprehension. II
II can be done without serious harm inCOn-
yenence to the adverse party. That can be done
here In this case have other suggestion TO make
in relation to objection, which IS proper considera
non for ne. However well settled it may be that
declaration NUT face show that the Court has
no Jurisdiction there is nevertheless wide distinction
between where II Insisted the Court has not
jurisdiction in fact and suggestion tnat although the
Court has jurisdiction there Is defect 10 properly
averring IL not suggestion OF fact that the Court
should consider that the plantin IS not cluzen OF
Massac II Is not suggestion OF fact that the
has not jurisdiction in tins case but the suggeS
tion is that by oversight otherwise in framing the
declaration counsel omitted 10 use the proper words
And however adhered upon technical grounds
in view Of what appears 10 have passed between |
counsel and the defendant in view Of what has passed
between counsel both SIDES deem II proper ~ allow
this case TO stand over until Wednesday of next week
and that will be the disposition make o. tins motion
not what proper for