"A demurrer is an objection that the pleading against which it is directed is insufficient in law to support the action or defense, and that the demurrant should not, therefore, be required to further plead."

"It is not the office of a demurrer to set out facts; it involves only such facts as are alleged in the pleading demurred to, and raises only questions of law as to the sufficiency of the pleadings which arise upon the face thereof." 23

It is a fundamental rule of pleading that a demurrer can only He for defects which appear upon the fact of the pleading against which it is directed.24 A demurrer, which is founded on matter collateral to the pleading, is called a speaking demurrer, and is bad.25

Demurrers can only raise questions of law which must be decided by the court.

Demurrers may be directed against the declaration or against any subsequent pleading.26

Demurrers are divided into general demurrers and special demurrers. General demurrers lie for defects in substance and special demurrers for defects in form.

22 McKelvey on Common Law Pleading Sec. 139. 23 Ency. of Pleading and Practice, Vol. VI, pp. 276-7. 24 Liegears vs. McCracken, 10 Fed.

Rep., 664; Tuscony vs. Brandeetien, 16 Cal., 516.

25 Williams vs. Davis, 46 III. App., 228; Dennehey vs. Woodsum, 100 Mass., 198.

26 Note the difference between Common Law Pleading and Equity Pleading in this respect.

"Upon a demurrer the court will consider the whole record, and give judgment for the party who upon the whole appears to be entitled to it. This rule does not apply -

(a) On demurrer by the plaintiff to a plea in abatement.

(b) Where, though the right, on the whole record, appears to be with the plaintiff, he has not put his action on that ground.

(c) Where there has been a discontinuance.

(d) The right will be considered in regard to substance, and not form." 27

The general subject of demurrers was discussed by the Supreme Court of the United States in the case of Tyler vs. Hand,28 as follows:

"A demurrer is an objection made by one party to his opponent's pleading, alleging that he ought not to answer it, for 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 part made demurrer 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, not withstanding the objections in substance and form which the defendants have made to the plaintiff's declaration, sufficient matter appears in the pleadings, upon which the court may give judgment according to the very right in the case. Five special causes of 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.

27 Shipman on Common Law Pleading, Sec. 176.

28 7 Howard, 573 demurrer are assigned;

"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.

"2nd. 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 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 the 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, 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 vs. 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 vs. Tingey, 5 Peters, 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 and 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 vs. 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 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.