James Moore Wayne

“ 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. ”

“ 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. ”

“ To take securities for the lands sold, if it should be deemed most advantageous for the interests of the Indian orphans that they should be sold on credit, was not only an incident to the power to make the sale, but an obvious duty incumbent on the President. ”

“ 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 palce 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. ”

“ 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 special cause alleged for demurring be matter of abatement. ”

“ III. There is no law requiring a plaintiff who sues as trustee to name in the record the parties for whose use the suit is brought; and if there were, it could not apply to a case like the present. It is presumed the demurrer is based upon the thirtieth section of the process act of Mississippi, which falls far short of sustaining the position assumed by the defendants. ”

“ The other reservations in the nineteenth article are to certain parties by name, and to certain, classes of the Indians who had made improvements, and furnish no argument to illustrate this case. These reservations stand on a very different footing from those of the orphans. ”

“ Mr. Adams contended that the court below did not err in sustaining the demurrer, and that the judgment should be affirmed: 1st. For the reasons that the President had no authority to sell, had no title in himself, nor obligation upon others to make title; that he was not a trustee with power to sell for the benefit of the Indians, or otherwise ”