United States ex rel. Alexander v. Ritchie

Mr. Justice Cox

delivered the opinion of the court.

The case of the United States against Joshua A, Eitchie' and others, is a suit brought in tbe name of tbe United States for tbe use of certain legatees, against tbe principal and sureties, on an executor's bond. It is brought to recover tbe sum of fl, 151.66, as a balance due to the legatees', named in tbe will of Einhard Pettit, wbo died in August, 1873, leaving Joshua A. Eitcbie and Louis W. Eitcbie as his executors; Tbe original declaration was demurred to. and it was afterwards amended. That amended declaration was demurred to, and that was again amended, and tbe second amendment, or third declaration, as we may call it, was also demurred to on two grounds; one being that tbe declaration does not make profert of tbe bond sued on, nor make any excuse for tbe failure to make profert thereof, and tbe other that the declaration contains matters of evidence. On the argument, the counsel relied on one ground which was assigned for demurrer to the original declaration, viz., that the suit was brought by several legatees together, instead of each legatee suing for himself; the position being, that although the suit was brought in the name of the United States for the use of parties interested, yet each party interested must sue separately, just as he would have to do if he could sue in his own name.

The precedents have sanctioned this form of suit. In the case of Maddox vs. The State, in 4 Harris & John., we find that the suit was brought on an administrator’s bond, in the name of the State, for the use of the executor of one of the deceased distributees, and of all the surviving distributees. There was no point made about it, and the thing was acquiesced in, and, sub silentio, approved. We find a similar case — that of U. S., use of, &c., vs. John Rose, in 2 Cranch C. C. R., 567 — where no objection was made to the form of the suit. Another is the case of U. S., use of Mackey, vs. Coxe, in 18 Howard, U, S., where the suit was brought for the use of the administrator of the domicile, in the Cherokee Nation, and also of the distributees entitled to the estate of the deceased. And so far as that point was concerned, it was sustained; there were no objections made on that ground at all. We do not think, therefore, the first objection to the suit could be sustained.

The next one to be noticed is the omission to make profert of the executor’s bond. The answer to that by counsel was, that in the same case already referred to — of Maddox vs. The State — and in several cases referred to, it has been decided that where the bond is filed as a public record, it is unnecessary to make profert of it in the declaration. We think this is a sufficient answer. But in addition to that, the neglect to make profert is a matter of form and not of substance, and it could not be taken advantage of on a general demurrer, as only matters of substance can be. We require a demurrer to be for matter of substance. We do not listen to any mere matters of form on demurrer. They were, at common law, subject to special demurrer, and by our rules we have virtually abolished all special demurrers.

Another objection was, that the declaration contained matters of evidence. If it stated nothing else but matters of evidence, it would be bad on general demurrer. But we find, on inspection, that it states the facts necessary to be stated to make a case. It states the receipt of money by the defendants, their obligation to pay, and their refusal to pay, and it simply adds: “Although often requested so to do,” and “ Though directed by the Supreme Court of the District of Columbia, holding a special term for the transaction of public business, to pay over said sum of money as follows,” giving different sums, etc. Now, that may be a mere matter of evidence, but it is simply surplusage, and we do not think it is sufficient ground for general demurrer to the declaration.

The demurrer was sustained below, and we reverse the judgment on /that ground.