allegations contained in that part of the plea, because the law, in furtherance of justice, requires that the proceedings of grand juries should be conducted in secret, and that the secrets of the jury room should not be revealed. The jurors, as has been shown, are sworn to secrecy the secrets of the cause, their own and their fellows', they will duly observe and keep.

The allegations in that part of the defendant Davis's plea in abatement, which is now under consideration, could not, if they are true, be proved, except by the testimony of the grand jurors themselves. The grand jurors could not have been allowed to give testimony in respect to them. And the admission of the state's attorney could not be received by the court in proof of them. When the plea containing those allegations was filed, the state's attorney should have objected to its allowance; and the court, upon such objection, would have ruled it out. But as that course was not adopted, the demurrer to the plea cannot be allowed to operate as an admission of the truth of the allegations pleaded, or to have any other operation or effect than an objection or exception to the filing and allowance of the plea.1

AMORY AND OTHERS v. M'GREGOR.

SUPREME COURT, NEW YORK, AUGUST, 1815.

[12 Johnson, 287.]

THIS was a special action on the case for negligence in the transportation of goods.

The first count stated, that the defendant, at the time of the making of the promise therein mentioned, was the owner of a ship, called the Indian Hunter, then in the port of Liverpool, in Great Britain, and bound to New Orleans; and that the plaintiffs, on the twenty-first of July, 1812, at Liverpool aforesaid, at the special instance of the defendant, caused to be shipped on board the said ship, whereof James L. Stevens was master, divers goods, wares, and merchandise, to wit, nine trunks and one bale of merchandise, and 127 crates of earthenware, in good order and condition, of the value of 15,000 dollars, to be taken care of, and safely and securely carried and conveyed by the defendant to New Orleans, and there to be safely and securely delivered, in the like good order and well conditioned, all and every the dangers and accidents of the seas, and navigation of whatsoever nature and kind excepted; and in consideration thereof, and of certain freight, the defendant undertook to take care of, and securely carry and con

1 Brooke v. Widdicombe, 39 Md. 386; Bower v. Chess, 83 Miss. 218 Accord. In this case the demurrer did not admit the allegation in the plaintiff's bill that a tax deed reciting that the tax sale was made in 1897 for the taxes of 1897 was the result of a clerical error in writing “taxes of 1897" instead of "taxes of 1896.” — Ed.

vey, and deliver the goods, the dangers and accidents of the seas and navigation excepted. And although a reasonable time for carrying and delivering the said goods had elapsed, yet that the defendant, not regarding his duty nor his said undertaking, but contriving, etc., did not, nor would take care of, and safely and securely carry and convey, the goods to New Orleans, and there safely and securely deliver them to the plaintiff, and although no dangers and accidents of the seas and navigation did prevent him; but that, on the contrary, the defendant so fraudulently, negligently, and carelessly behaved and conducted himself with respect to the goods, that by, and through the mere fraud, carelessness, negligence, and improper conduct of the defendant and his agents, in that behalf, the goods became, and were totally lost to the plaintiffs.1

To this count there was a general demurrer.

Per Curiam. This case comes before the court on a general demurrer to the declaration. And the ground upon which it has been attempted to support the demurrer is, that the day laid in the declaration is during the existence of hostilities between this country and Great Britain; and that, of course, the contract set forth in the declaration is void, being contrary to the laws of the United States. Without giving any opinion upon the validity of the contract, if, in point of fact, it was made at the time laid in the declaration, it is sufficient, in this case, to say, that the day being immaterial, the plaintiff would not be obliged to prove the contract to have been made on the day laid. Nothing appears upon the face of the declaration, showing the contract to be illegal or void. And it is a general rule, that a party cannot demur, unless the objection appears on the face of the pleadings. And so are all the cases referred to, and relied upon, by the defendant's counsel. In Cheetham v. Lewis, and Waring v. Yates, it appears, from the declaration, when the suit was commenced, and that the cause of action arose afterwards. The plaintiff must, therefore, have judgment, with leave to the defendant, however, to plead to the declaration.*

Judgment for the plaintiff.

1 The second count and the argument for the plaintiff are omitted. — Ed.

23 Johns. Rep. 42.

10 Johns. Rep. 119.

4 Similarly, a demurrer does not admit the amount of the damage alleged, if the claim is for unliquidated damages. Lamphear v. Buckingham, 33 Conn. 237; Daniels v. Saybrook, 34 Conn. 377; Crogan v. Schick, 53 Conn. 186; Randel v. Chesapeake Co., 1 Harringt. 234; Lindley v. Miller, 67 III. 244; Minear v. Hogg, 24 Iowa, 641, 645; State v. Peck, 60 Me. 498, 503; Darrah r. Lightfoot, 15 Mo. 18.

See also the following cases deciding that upon a demurrer superfluous allegations will be ignored. Lord v. Houston, 11 East, 62; Alderson v. Johnson, 2 M. & W. 70; Johnson r. Killian, 6 wrk. 172; Martin v. Warren, 11 Ark. 285; McDaniel v. Grace, 15 Ark. 465, 485; Gillette . Peabody, (Colo. Ap. 1904) 75 Pac. R. 18; Childs v. Griswold, 15 Iowa, 438; Tucker v. Randall, 2 Mass. 283; Loomis . Youle, 1 Minn. 175; Hurt v. Southern Co., 40 Miss. 391; Eichlin v. Holland Co., 68 N. J. 78; Tappan v. Powers, 2 Hall, 277; Groesbeck v. Dunscombe, 41 How. Pr. 302, 321. — Ed.

BARBER AND ANOTHER v. SUMMERS.

SUPREME COURT, INDIANA, JUNE 8, 1840.

[5 Blackford, 339.]

ERROR to the Rush Circuit Court.

DEWEY, J. This was an action of debt commenced before a justice of the peace. It was founded on a bond conditioned for the delivery of certain property, which had been taken by a constable on executiop in favor of the defendant in error against Gosnel, one of the plaintiffs in error. The bond was filed before the justice as the cause of action; the plaintiff below also filed with the justice a declaration setting forth the bond and condition, and assigning the non-delivery of the property as the breach of the condition. The defendants pleaded, 2dly,' that the articles mentioned in the condition belonged to Gosnel, and that at and before the period when they were to have been delivered, Gosnel claimed them from the constable as being exempted from execution by law, "on the ground that Gosnel had not personal property of the value of 100 dollars, including said articles," and that he had a family; the plea then avers that Gosnel had not "100 dollars' worth of personal and household property over and above the property" levied on. The plaintiff demurred generally to the second plea; the demurrer was sustained; and upon a trial of the issue of fact, the justice rendered judgment for the plaintiff. The defendants appealed. The Circuit Court also sustained the demurrer.

The second plea is evidently an attempt to set up the benefit of the statute, which entitles the head of a family to claim property to the value of 100 dollars as exempt from execution, in bar of an action on the delivery bond. The plea, however, is too defective to bring the question of the validity of such a defence before us in this case. If the allegation, that the execution defendant claimed the exemption "on the ground" that he had not property to the value of 100 dollars, including that taken on the execution, can be considered as an averment that all his property was not worth that sum, it is inconsistent with the subsequent averment that his property, exclusive of that levied on, did not amount in value to 100 dollars. And a plea, which contains repugnant allegations respecting material matter, is bad on general demurrer; the contradictory averments destroy each other. Gould's Pl. 155. But the averment in the plea, that the execution debtor claimed the property levied on from the constable, as being exempt from execution, on the ground that he had not property to the value of 100 dollars, is not, in truth, a direct allegation that his property was not worth that sum. It tenders no issue as to that point. The only statement in the plea as to the value of his property is that which avers, that, exclusive of the articles taken in execution, Gosnel 1 Only so much of the case as relates to this plea is given. — ED.

did not own 100 dollars' worth of property. The plea, with this de fect, certainly cannot bar the action.

Per Curiam. The judgment is affirmed, with 1 per cent. damages and costs.1

MILLARD v. CYRUS BALDWIN.

SUPREME JUDICIAL COURT, MASSACHUSETTS, SEPTEMBER TERM, 1855.

[Reported in 3 Gray, 484.]

ACTION of contract, commenced at June term, 1854, of the Court of Common Pleas. The declaration alleged that the defendant and Cyrus Hewitt, by agreement in writing, submitted certain matters in dispute between them, relating to the late copartnership between Hewitt and Charles A. Baldwin, to the arbitration of Ralph Taylor, William Stoddard, and Orrin Curtis, their decision in the premises to be final and binding upon the parties; that the defendant bound himself to Hewitt to assume, so far as Charles A. Baldwin was concerned, all the debts and liabilities of said partnership; that there was then due from said partnership to the plaintiff a debt of one hundred and twenty-five dollars, which was submitted to said arbitrators, and which the defendant "was, in and by said award, ordered to pay to the plaintiff, and is by law bound to pay the same. And the plaintiff says, the defendant owes him one hundred and twenty-five dollars, the sum so awarded to him by said arbitrators." 2

The defendant demurred, on the ground that the declaration did not state a legal cause of action substantially in accordance with the rules contained in statute 1852, c. 312; and particularly assigned the following cause of demurrer: "That said plaintiff is not a party to any agreement or award between the defendant and said Hewitt, and the plaintiff cannot sue on any agreement or award set forth in said declaration, or in the copy to said declaration annexed."

I. Sumner, for the defendant.

J. Branning, for the plaintiff.

The allegation in the last clause in the declaration, that the defendant owes the plaintiff one hundred and twenty-five dollars, the sum so awarded by said arbitrators (the truth of which, as of all other facts distinctly stated, is admitted by the demurrer), is of itself a

1 King v. Stevens, 5 East, 244 (semble); Jacksonville Co. v. Thompson, 34 Fla. 346, 352 (semble); Fla. Co. v. Ashmore, 43 Fla. 272; So. Co. v. Covenia, 100 Ga. 46; Bower v. Chess, 83 Miss. 218 Accord.

Nevil v. Soper, 1 Salk. 213, is an extreme, not to say fantastic, evidence of repugnancy. "In covenant against an apprentice the plaintiff assigned for breach that the apprentice, before the time of his apprenticeship expired, and durante tempore quo servivit, departed . from his master's service. The defendant demurred, and had judgment, because the declaration was repugnant, for it should have been durante tempore quo servive debuit." — ED. 2 Only so much of the case is given as relates to the question of the demurrer. - ED.

sufficient declaration, under the new practice act (statute 1852, c. 312), and all that precedes may be rejected as surplusage.

METCALF, J. This demurrer must be sustained.

The last clause in the declaration cannot aid the plaintiff; for it is not an allegation of fact, and as such admitted by the demurrer, but a mere statement of the plaintiff's conclusion of law resulting from the facts already alleged. Gould, Pl. c. 9, § 29.

Declaration adjudged bad.1

1 "A demurrer admits the truth of such facts as are issuable and well pleaded; but it does not admit the conclusions which counsel may choose to draw therefrom, although they may be stated in the complaint. It is to the soundness of those conclusions, whether stated in the complaint or not, that a demurrer is directed, and to which it applies the proper test." Branham v. Mayer, etc., 24 Cal. 602.

v. Mallett, 5 C. B. 599, 615; Mallan v. May, 11 M. & W. 653; Seymour v. Maddox, 16 Q. B. 326; White v. Crisp, 10 Ex. 312, 320 (semble); Metcalf v. Hetherington, 11 Ex. 269; Dutton v. Powles, 30 L. J. Q. B. 169; Grenville v. Clarendon, 9 Eq. 11; Chilton v. London Co., 7 Ch. D. 735; Moss v. Riddle, 5 Cranch, 351; Pennie v. Reis, 132 U. S. 464; U. S. v. Arnold, 1 Gall. 348; Savage v. Walsh, 26 Ala. 619; Wood v. King, 57 Ark. 284; Wadsworth v. Champion, 1 Root, 393, 395; State v. Sykes, 28 Conn. 225, 228; Hayden v. Manuf'g Co., 29 Conn. 548, 560; McCune v. Gas Co., 30 Conn. 521; Hewison v. New Haven, 34 Conn. 136; Compher v. People, 12 Ill. 290; Binz v. Tyler, 79 Ill. 248; Johnson v. Roberts, 102 Ill. 655, 658; Fish v. Farwell, 160 Ill. 236; Ill. Co. v. Three States Co., 90 Ill. Ap. 599; Goddard v. Stockman, 74 Ind. 400; Worley v. Moore, 7 Ind. 567 Harkins v. Edwards, 1 Iowa, 426, 430; Games v. Robb, 8 Iowa, 193, 199; Stucksleger & Smith, 27 Lowa, 286; Alston v. Wilson, 44 Iowa, 130; Minn. Co. v. Hiams, 53 Iowa, 501; Freeman v. Hart, 61 I 525; State v. Nichols, 78 Iowa, 747; Parish v. Municipality, 8 La. An. 145; Brooke v. Widdicombe, 39 Md. 386; Shepherd v. Baer, 96 Md. 152; Sistermans v. Field, 9 Gray, 331; Hollis v. Richardson, 13 Gray, 392; Read v. Smith, 1 All. 519; Everett v. Drew, 129 Mass. 150; Jones v. Dow, 137 Mass. 119; Haskell v. Equitable Co., 181 Mass. 341; Griggs v. St. Paul, 9 Minn. 246; Wilson v. Clarke, 20 Minn. 367; Perkins v. Gay, 55 Miss. 153; Bradley v. Franklin Co., 65 Mo. 638; Kleckamp v. Meyer, 5 Mo. Ap. 444; American Co. v. State, 46 Neb. 194; Belleone Co. v. Kayser, (Neb. 1903) 95 N. W. R. 499; State v. Porter, (Neb. 1903) 95 N. W. R. 769; Cal. Co. v. Patterson, 1 Nev. 150, 157; Van Doren v. Tjader, 1 Nev. 380, 392; Tinsman v. Belvidere Co., 26 N. J. 148 (semble); Neinaber v. Weehawken, (N.J. 1904) 57 Atl. R. 267; Kennedy v. North Co., (N. J. 1905) 60 Atl. R. 40; First Bank v. Lewinson, (N.Mex. 1904) 76 Pac. R. 288; Starbuck v. Murray, 5 Wend. 148, 159; Kinnier v. Kinnier, 45N1.535, Kip v. N. Y. Co., 67 N. Y. 227, 230; Bonnell v. Griswold, 68 N. Y. 294; Lange v. Benedict, 78 NY. 12; Buffalo Inst. v. Bitter, 87 N. Y. 250; Walsh v. Trustees, 96 NY. 427, 438; Bogardus v. N. Y. Co., 101 N. Y. 328; Masterson v. Townshend, (123 N. Y. 458, Talcott v. Buffalo, 125 N. Y. 280; Park Co. v. Nat. Ass'n, 175 N. Y. 1; Boyce Brown, 7 Barb. 85; Hall v. Bartlett, 9 Barb. 301; Angell v. Van Schaick, 56 Hun, 247; Douglas v. Phenix Co., 63 Hun, 393; Armatage v. Fisher, 74 Ilun, 167; Rector v. Huntington, 82 Hun, 125; Supervisors v. Seabury, 11 Abb. N. C. 461; Rauh v. Board 66 How. Pr 368; Farrar v. Lee, 10 N. Y. Ap. Div. 130; Baxter v. McDonnell, 18 N. Y. Ap. Div. 235; Swan v. Mutual Ass'n, 20 N. Y. Ap. Div. 256; Burdick v. Chesebrough, (N. Y. Ap. Div. May, 1904) 88 N. Y. Sup. 13; Schenck v. Taylor, 2 Duer, 675; N. Y. Co. v. McGrath, 23 N. Y. St. Rep. 209; Johnstown v. Rogers, 20 N. Y. Misc. Rep. 262; Mauney v. Ingram, 78 N. Ca. 96; Hamilton Co. v. Cincinnati Co., 29 Oh. St. 341; Watts v. Ruh, 30 Oh. St. 32, 41; Peterson v. Roach, 32 Oh. St. 374; R. R. Co. v. Moore, 33 Oh. St. 384; Crockett v. McLanahan, (Tenn. 1903) 72 S. W. R. 950; Catlin v. Glover, 4 Tex. 151; Holman v. Criswell, 13 Tex. 38, 44; Blaisdell Co. v. Citizens' Bank, 96 Tex. 626; Best v. Nix, 6 Tex. Civ. Ap. 349; Prokop v. Gulf Co., (Tex. Civ. Ap. 1904) 79 S. W. R. 101; Kellogg v. Larkin, 3 Pinn. (Wis.) 125; State v. Collins, 5 Wis. 339, 347; Sherwood v. Sherwood, 45 Wis. 357; Brown v. Phillips, 71 Wis 239.

See to the same effect Rex v. Knollys, 1 Ld. Ray. 111; Burton's Case, 5 Rep. 69; Brown a 12 Col. 957.

In Rauh v. Board, supra, LAWRENCE, J., said: "It is equally well settled, however, that the demurrer only admits the facts that are relevant and well pleaded, but not conclusions of law. . . . So, too, averments in a complaint as to the meaning or contents of a paper set forth therein, or annexed to and made part thereof, are not admitted by a demurrer." -ED.

64N.W.711

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