Samuel Nelson

“ It does not, per se, give us any action for any money. But our action is not founded on the decree, but on a covenant anterior to it.
In the sealed instrument containing that covenant, it is acknowledged, in such form as to estop any proof to the contrary, that certain lands belonging to this plaintiff and McArthur were to be paid for by the United States; that a controversy existed as to their relative rights to the land, which had led McArthur to commence a suit in chancery to enjoin the payment of the money by the United States ”

“ Every material fact which constitutes the ground of the plaintiff's action must be alleged in the declaration, and no proof at the trial can make good a declaration which contains no ground of action. ”

“ Upon this state of things the covenant is made; providing that the parties shall stand, as to the money, in statu quo, until the determination of the suit; and that if, directly or indirectly, by any decree to be made in such suit, it should be held that the $11,500 was less than Hobson's portion of the whole sum, or if such a result should in any way flow from any decree, then McArthur covenants to pay any excess that Hobson might be entitled to. ”

“ In other words, must we introduce all our evidence into our declaration? Unquestionably we must, on the trial, prove the allegation, that the liability to pay more than the $11,500 resulted from the covenant and the decree. We admit that, but cannot admit that we must spread all the evidence out in the declaration.
There are instances in which the mere averment of the fact is not good, without showing the manner; as where there is a covenant to pay money on the release of all actions. An averment that the plaintiff executed a release will not do, for it must appear how the release was made, i. ”

“ Stanbery, for defendant in error.
There are three causes of demurrer stated specially:--
1. That plaintiff has not shown any cause of action against McArthur, or his administrator.
2. That he has shown no breach of the covenant.
3. That there is nothing to show the plaintiff entitled to demand the said sum of $3,201, and interest.
The three grounds of demurrer are in effect one,-that no cause of action is shown; and though called, or intended for, a special demurrer, is in truth a general demurrer, for it relies on matter of substance, not of form. ”

“ This is a writ of error to the Circuit Court of the United States, held in and for the District of Ohio by the district judge.
The questions presented arise upon the record of judgment, no bill of exceptions having been taken to the rulings of the court at the trial. It is insisted that the declaration is fatally defective, and the judgment for that reason erroneous.
The action is covenant, brought by Matthew Hobson against William McDonald, as administrator of Duncan McArthur, deceased. ”

“ The only exception to the rule, that the virtute cujus, pretextu, or per quod, are not traversable, is when they are compounded of law and fact, which are connected together. Then a traverse may be taken for the purpose of trying the fact which is connected with the law. ”

“ It was to remedy this inconvenience, and to enable the parties to possess themseves of the fund, pending the controversy, that the agreement in question was entered into, and which was, in substance, as follows. McArthur was to receive the whole of the money from the government, and at once pay over to Hobson $11,500, retaining in his possession the residue; and if, in the suit then pending, it should be determined, directly or indirectly, that Hobson was entitled to a larger amount for his share, then McArthur would pay such additional sum, with interest, at the Bank of Chillicothe ”

“ And whereas, (as is further recited by said article of agreement first herein mentioned,) the said parties, to wit, the said Matthew and Duncan, were then mutually willing and anxious that the said money, so appropriated by the said act of Congress, or such part of it as should await the determination of said suit, should not remain inactive, and did therefore wish to put the whole matter in such state as would make the fune available and profitable, pending the same suit, but without in any manner affecting, or being held, or interpreted as affecting, their said controversy ”