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.
Page 48 U. S. 574
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
Page 48 U. S. 575
following dates, and were for the following sums of money,
viz.:
image:a
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,
Page 48 U. S. 576
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."
"Nevertheless,"
&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,
Page 48 U. S. 577
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.
Page 48 U. S. 581
MR. JUSTICE WAYNE delivered the opinion of the Court.
This suit is brought upon ten bonds payable 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 Choctaw Indians of September,
1830.
The principal and interest due upon the bonds are demanded, and
the plaintiff in the action, John Tyler, sues as successor of
Martin Van Buren and trustee for the orphan children.
The defendants have demurred to the plaintiff's declaration,
pursuing the usual form of a general demurrer, and have added
thereto several special causes of demurrer. There is a joinder in
demurrer. Upon these pleadings, the court below sustained the
demurrer of the defendants. It is that judgment which is now before
this Court by writ of error.
In our opinion, there is error in the judgment. We shall reverse
it, with an order to the court below to enter up a final judgment
for the plaintiff.
The cause is not before us on the grounds upon which it was
placed in argument by the counsel of the defendants, except as to
the insufficiency of the facts averred in the plaintiff's
declaration to entitle him to recover, or to enable the defendants
to sustain their demurrer.
A demurrer is an objection made by one party to his opponent's
pleading, alleging that he ought not to answer it, for
Page 48 U. S. 582
some defect in law in the pleading. It admits the facts, and
refers the law arising thereon to the court. Co.Lit. 71
b;
5 Mod. 132. The opposite party may demur when his opponent's
pleading is defective in substance or form, but there can be no
demurrer for a defect not apparent in the pleadings. This being so,
the question now is whether or not, notwithstanding the objections
in substance and form which the defendants have made to the
plaintiff's declaration, sufficient matter appear in the pleadings,
upon which the court may give judgment according to the very right
of the case. Five special causes of demurrer are assigned; they
were of course meant to be objections for defects in form, as none
other can be assigned in a special demurrer. A general demurrer
lies only for defects in substance, and excepts to the sufficiency
of the pleading in general terms, without showing specially the
nature of the objection. A special demurrer is only for defects in
form, and adds to the terms of a general demurrer a specification
of the particular ground of exception.
Our first remark, then, is that neither of the special causes of
demurrer alleged in this case is for a matter of form. They are as
follows:
"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 Stats,
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 case, then, is before the Court upon a general demurrer,
Page 48 U. S. 583
in which must be considered the whole record, and judgment
should be given for the party who on the whole appears to be
entitled to it.
Le Bret v. Papillon, 4 East 502. It cannot
be better shown in this case for whom the judgment should be than
by showing that the special causes of objection assigned, supposing
them to have been made as matters of substance, are not sufficient
in law to prevent a recovery by the plaintiff. We will first speak
of the fourth and fifth, because they are the chief reliance of the
defendants to show that no judgment can be rendered against
them.
The fourth is that the bonds given by the defendants were taken
without authority of law. The fifth is that it appears from the
face of the pleadings they were given without any actual
consideration. Neither of these points can be raised in this case
by a demurrer. As to the first of the two, it was not necessary to
aver in the declaration that the bonds were taken with the
authority of law -- nor is it so averred. The bonds are made to the
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 Choctaw Indians of September, 1830.
They are so recited in the declaration, and are admitted by the
defendants to have been given by them. In point of law, then, they
are valid instruments, though voluntarily given, and not prescribed
by law.
United States v.
Tingey, 5 Pet. 115. It is not the case of a bond
given contrary to law or in violation of law, but that of bonds
given voluntarily for a consideration expressed in them to a public
officer, but not happening to be prescribed by law. Nor does it
matter that they are made to the President of the United States and
his successors in office, if the political official character of
the President is recognized in them and is so averred in the
declaration. This cause of demurrer, whether well taken or not,
admits the fact that the bonds were given, and estops the
defendants from denying it as a matter of form or from contesting
by a demurrer the right of the obligee and his successors in office
to sue the obligors at law. As to the alleged want of consideration
for these bonds, as stated in the fifth special cause of demurrer,
that affords no ground for a demurrer, as a bond cannot be avoided
at law either for a want or failure of consideration, and anything
illegal in the consideration can only be pleaded in bar to the
action.
Fallowes v. Taylor, 7 T.R. 475.
But it is said that these bonds were given without any actual
consideration, the President, as it is alleged, having no authority
to dispose of the land. What of that? The declaration does not
state of whom the purchase was made, or by
Page 48 U. S. 584
what authority the sale took place. The defendants admit that a
sale did take place, that they were purchasers of the lands, and
that they gave the bonds voluntarily, according to the terms of
sale. Neither of these questions, then, can be raised under the
demurrer of the defendants, and could not have been the foundation
of the judgment given in their favor.
Having disposed of the fourth and fifth special causes of
demurrer, we will now inquire, in their order, whether or not the
judgment which was given can be sustained upon either of the other
alleged grounds.
The first is
"That three is no sufficient averment in the proceedings 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 this suit."
This cannot justify the judgment, because it is demurring in
abatement. In such a case, the plaintiff is entitled to final
judgment. If the matter of abatement be extrinsic, the defendant
must plead it. If intrinsic, the court will act upon it upon
motion, or notice it of themselves.
Dockminique v.
Davenant, Salk. 220. But it does not follow, because a
demurrer in abatement cannot be available for the defendant, that
it is to be rejected altogether from the pleading if tendered in
proper time. It will be received, but being erroneously put in, it
entitles the plaintiff to final judgment, so that for this reason
the judgment of the court below would have to be reversed.
Perhaps the best exposition of this point of pleading anywhere
to be found is that given in
Furniss v. Ellis and Allen in
2 Brockenbrough's Reports 17, by Chief Justice Marshall. He
says,
"The cases quoted to show that the demurrer is not good, do not
show that even in England it ought not to be received if tendered
in proper time. In 5 Bac.Abr. 459 it is said if a defendant demur
in abatement, the court will, notwithstanding, give a final
judgment, because there cannot be a demurrer in abatement. This
does not prove that the demurrer shall be rejected, but that it
shall be received, and that the judgment upon it shall be final. A
judgment on a plea in abatement or on a demurrer to a plea in
abatement is not final, but on a demurrer which contains matter in
abatement it shall be final, because a demurrer cannot partake of
the character of a plea in abatement. Salk. 220 is quoted by Bacon,
and is to the same purport, indeed in the same words. These cases
show that a demurrer, being in its own nature a plea to the action
and being even in form a plea to the action, shall not be
considered as a plea in abatement, though the
Page 48 U. S. 585
special cause alleged for demurring be matter of abatement. This
Court will disregard these special causes and, considering the
demurrer independently of them, will decide upon it as if they had
not been inserted in it."
And then the Chief Justice adds, in respect to the particular
case then in hand, that
"these cases go far to show that the court would overrule the
demurrer, and decide the cause against the party demurring, not
that it should be expunged from the pleadings."
The second ground of special demurrer is 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 an action on
the same. Neither fact stated is a matter of form, and cannot
therefore be a cause for a special demurrer. But taking them as
matters of substance, the insertion of them in the plaintiff's
declaration is not necessary to show his right to sue and recover
upon these bonds, or material for the defendants in their plea.
This objection will not avail to sustain the judgment.
The remaining objection to be considered is the third in order
stated, and may be as briefly and as satisfactorily disposed of as
some of the rest have been. It is that the parties for whose use
the suit is brought are not named, who by the laws of Mississippi
are the real plaintiffs, and responsible for costs. We remark that
for whose use the bonds were taken is not recited as personal to
any of the Choctaw orphans, but as an aggregate for all such as
were entitled to lands under the nineteenth article of the treaty.
The demurrer admits that the bonds were so made by the defendants,
and that the recital in the declaration is as the fact is expressed
in the bonds. The inquiries, then, into who are individually the
orphan children residing in the Choctaw nation, or who by name are
entitled to a quarter-section of land, or any such averments in the
plaintiff's declaration, were not necessary to entitle him to
recover, and could not be shown either as a cause of special
demurrer or be urged under a general demurrer, to prevent a
recovery in this case.
All of us are of the opinion that there is nothing in the causes
of demurrer which were shown in argument, or in the special causes
assigned, to sustain the demurrer, and thinking as we all do that
nothing has been shown to lessen the obligation of the defendants
to pay these bonds or their liability to be sued for them at law,
we shall direct the judgment of the court below to be
Reversed with costs, and shall order the cause to be
remanded to the district court with directions to that court to
enter judgment in this case (principal and interest) for the
plaintiff in that court.
Page 48 U. S. 586
Order
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the Northern
District of Mississippi and was argued by counsel. On consideration
whereof it is now here ordered and adjudged by this Court that the
judgment of the said district court in this cause be and the same
is hereby reversed with costs, and that this cause be and the same
is hereby remanded to the said district court, with directions to
that court to enter judgment in this case for both principal and
interest for the plaintiff in that court.
