The New York herald., 1874-12-04

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WHAT THE DEHEHCB FAILED TO SHOW. t..
General Tracy replied that the defence had faiied
TO show ground for the motion to dismiss. The
allegation was truein regard to the error OF aver
msnt OF residence instead OF citizenship. He had
called General Buffers attention 70 the act by let.
ter at the time he discovered It. and be attributed
stipulation that no objection would be made on
the trial to the complaint In the matter OF aver
tesy the stipulation would noe be denied he had
supposed BE would 60 further and say that he
even doubted that an averment ofresldence Is not
equal TO an averment OF citizenship. 1t Is not me-
cessary to aver any particular State. Az It was,
the question raised was merely technical and forms
no part OF an excuse for the counsel coming into
without DreDaratiOl whafAVer
for trial. The question should have been raised in
demurrer, at ALL Mr.. Tracy cited an authority
In Eupp0rt Of his argument.
Ex-Judge Fullerton said il was OF no moment
whether or no the counsel for plaintiff informed
sner posion as The Want or U' would
still exist The complaint has not been amended
and so long as there exists an allegation that the
plaintiff Ia citizen Of any other State than New
YORK It could not be brought before the Court IN
any shape
General Tracy reiterated his assertion that the
objection was simply technical one and they were
ready, TO which tAe opposing counsel retorted,
Is questioned. On their side they had relied upon
the question, and 1or that reason had not made
the TsSa It s nscessary to make nal
ments or afndaytts to change the objection TO
dismiss the complaint The jury was eInpanelled
was not for the Court 70 inquire whether the com.
plant was defective or otherwise. The objection
On tne tc q sas
OF .'citizen,n was not well taken; but, In view OF
fact tnat defendant failed to prepare for trial
because Of tire advice of his counsel the Court
would accord him Sufficient time. The case was
therefore declared adjourned until Wednesday
next.
General Tracy then moved to amend the COM
plant by inserting the word citlzen" for crest
dent" He said they were anxious to have the
trial proceed this term as the District Judge did
not like to try this cause. IS
Ex-Judge Fullerton SAID that they commended
that His Honor had not the Jurisdiction even for
amendment. The Court took the order TO amend
despite the objection. Mr. Fullerton then asked that
O copy of the complaint be inserted In the order.
and the Court sharply retOrted that it was quite
unnecessary to do so, as 1t was not customary in
United States Courts.
ExJudge Fullerton then said that ne wanted to
prove that tho plaintiff Is not citizen OF Masss-
chusetts, but Is . citizen OF New York, where she
has resided for many years.
The Court said leave wOnld be granted the de-
fendant TO amend his answer on or before Monday
next