Tyler v. HandAnnotate this Case
48 U.S. 573 (1849)
U.S. Supreme Court
Tyler v. Hand, 48 U.S. 7 How. 573 573 (1849)
Tyler v. Hand
48 U.S. (7 How.) 573
A general demurrer by the defendant, assigning reasons why the plaintiff should not recover must be considered and treated as a special demurrer, which is an objection for defects in form.
In this case, none of the reasons are valid as objections to a matter of form, but the Court nevertheless will examine them as if brought forward to sustain a general demurrer.
Where bonds were given to the President of the United States and his successors in office for the use of the orphan children of certain Indians, and the declaration so averred, it was not a good cause of demurrer to allege that they were taken without authority of law. They were valid instruments, though voluntarily given and not prescribed by law, and as the demurrer admitted the facts stated in the declaration, the defendant was estopped from contesting the right of the obligee to sue.
So also it was not a valid reason to say in support of the demurrer that the bonds were given without consideration, and if there was any illegality in the transaction, it should have been pleaded in bar.
Where the defendant demurred, and assigned as a reason that the place of abode of the plaintiff, or his right to sue, was not set forth in the declaration, it was demurring in abatement, and the judgment of the court, if the demurrer be overruled, will be final for the plaintiff.
So also it is not a good ground for the defendant to say that the plaintiff has shown no title to the bonds. It is not a good objection to a matter of form or substance.
Nor was it a good ground of demurrer to say that the cestui que use was not named in the declaration. The demurrer admits that the recital of the use in the declaration was correct, and it was not necessary for the plaintiff to set out the individual uses when the uses were general in the bonds.
The circumstances were these.
By the Treaty of Dancing Rabbit Creek, of 27 September, 1830, the Choctaw nation ceded to the United States the entire country they owned and possessed east of the Mississippi River. The nineteenth article, 7 Stat. 336, 337, allowing certain reservations to be made, by its sixth section provides as follows:
"Sixthly. Likewise, children of the Choctaw nation, residing in the nation, who have neither father nor mother, a list of which, with satisfactory proof of parentage and orphanage, being filed with the agent in six months, to be forwarded to the War Department, shall be entitled to a quarter-section of land, to be located under the direction of the President, and with his consent the same may be sold, and the proceeds applied to some beneficial purpose for the benefit of said orphans."
The number of orphans entitled to the provision above recited was one hundred and thirty-four, and the lands having been selected, the same were sold in quarter-sections at public sale in 1838 by Mr. Aaron V. Brown, under the direction of President Van Buren, for a sum amounting to upwards of one hundred and thirty-five thousand dollars. The purchasers were entitled to a credit of two, four, and six years, were to give security for the payment of the purchase money, with interest, and no title was to be given until the whole amount of principal and interest was paid. Thomas G. Blewett became a purchaser of several pieces of the land, and, together with John H. Hand and John Huddleston, executed joint and several bonds to
"Martin Van Buren, President of the United States, and his successors in office, for the use of the orphan children provided for in the nineteenth article of the treaty with the Choctaws of September, 1830."
The bonds bore the
following dates, and were for the following sums of money, viz.:
The bonds were given as security for the payment of the interest upon certain notes for the principal, which last-mentioned notes were recited in the above ten bonds.
In May, 1843, John Tyler, as President of the United States, brought an action of debt upon these bonds in the District Court for the Northern District of Mississippi, which exercised the jurisdiction of a circuit court.
The declaration contained a count for each separate bond, the first of which was as follows, viz.:
"John Tyler, who is a citizen of Virginia, President of the United States, and successor in office of Martin Van Buren, and trustee for the use of the orphan children provided for in the nineteenth article of the Treaty with the Choctaws of September, 1830, by attorney, complains of Thomas G. Blewett, John Huddleston, and John H. Hand, citizens of the State of Mississippi, being in the custody of the marshal &c., of a plea that they render unto him the sum of thirty-four hundred and fifty dollars, which to him they owe, and from him unjustly detain; for that whereas the said defendants, by the way and style of Thomas G. Blewett, John Huddleston, and J. H. Hand, heretofore, to-wit, on 28 May, A.D. 1838, at, to-wit, in the district aforesaid, by their certain writing obligatory, sealed with their seals, and now here to the court shown, the date whereof is a certain day and year therein mentioned, to-wit, the day and year aforesaid, jointly and severally acknowledged themselves to be held and firmly bound to Martin Van Buren, President of the United States, and his successors in office, for the use of the orphan children provided for in the nineteenth article of the Treaty with the Choctaws of September, 1830, in the sum of three hundred dollars, to be paid to the said Martin Van Buren, President as aforesaid, and his successors in office, in good and lawful money of the United States; and the said plaintiff avers that he is President of the United States, and a successor in office of Martin Van Buren, which said writing obligatory was and is subject to a condition thereunder written, to-wit, that whereas the said Thomas G. Blewett, on 28 May, 1838, at a public sale of the Choctaw orphan lands, had and held in the town of Columbus,
became and was the purchaser of northwest quarter of section thirty-two, township twenty-three, range eight east, for which the said Thomas G. Blewett has executed his three several notes with Thomas McGee, John Huddleston, and John H. Hand, his security, to Martin Van Buren, President of the United States, for the use of the Choctaw orphan children provided for in the nineteenth article of the Treaty with the Choctaws of September, 1830, to-wit, one note dated 28 May, 1838, and due 28 May, 1840, for two hundred and fourteen dollars and twenty-six cents; one other note of same date and amount, due 28 May, 1842; and one other note of the same date and amount, due 28 May, 1844. All of said several bonds or notes, by the terms of said purchase, are to bear interest from their date at the rate of six percent per annum. Now if said Thomas G. Blewett shall pay or cause to be paid interest at the rate of six percentum per annum on said several notes at the expiration of each and every year from the date of the same, in good and lawful money of the United States, at the office of the Commissioner of Indian Affairs in Washington City, then this obligation to be void, otherwise to be good and binding as by the said writing obligatory, and the condition thereof will more fully and at large appear."
&c. (setting out the breach).
To this declaration the defendants filed the following demurrer, viz.:
"And said defendants, by attorney, come and defend the wrong and injury, when &c., and say that the plaintiff ought not to have or maintain his aforesaid action thereof against them, because they say that the declaration and matter therein contained are insufficient in law for the plaintiff to maintain his aforesaid action thereof against them, and that they are not bound by law to answer the same, and this they are ready to verify; wherefore, they pray judgment, and that the plaintiff be barred from having or maintaining his aforesaid action thereof against them, and according to the statute they state and show the following causes of demurrer, viz.:"
"1st. That there is no sufficient averment in the proceedings or record showing the citizenship or place of abode of the plaintiff, or that he is, by reason of the nature of his place of abode and citizenship, entitled by law to maintain said suit."
"2d. That the plaintiff shows no title to the bonds or obligations sued on, nor such an interest in the suit as will authorize him to maintain the same."
"3d. That the parties for whose use the suit is brought (who,
by the laws of Mississippi, are the real plaintiffs, and responsible for costs) are not named in the record."
"4th. That said bonds sued on were taken without authority of law, the said Martin Van Buren, President of the United States, having no such delegated power, and having no right to make the same payable to himself and his successors in office, or to assume to himself or his successors in office a legal perpetuity and succession unknown to the said office and not given by law."
"5th. That said bonds in the declaration mentioned appear, from the face of the pleadings, to have been given without any actual consideration, and by virtue of an assumption of authority on the part of said Martin Van Buren to dispose of said orphan Indian lands at public sale, without any legal right to sell the same. And because the said declaration is in other respects informal and insufficient."
The plaintiffs joined in demurrer, and in December, 1844, the case was argued upon the demurrer, which was sustained by the court.
To review this judgment, a writ of error brought the case up to this Court.
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