hat, owing to the
demurrer, everything will be in confusion, if matters are not
conducted and brought into court as they ought to be; that is to
say, if it is either pleaded against a man it ought not, or with an
improper penalty, or with an improper charge, or at an improper time;
and this principle applies to any confusion of every sort of tribunal.
Those three statements of cases then, which are not susceptible of any
decisions, must be treated in this manner. At present let us consider
the question and its divisions on general principles.

XXI. When the fact and the name of the action in question is agreed
upon, and when there is no dispute as to the character of the action
to be commenced; then the effect, and the nature, and the character of
the business is inquired into. We have already said, that there appear
to be two divisions of this; one which relates to facts and one which
relates to law. It is like this: "A certain person made a minor his
heir, but the minor died before he had come into the property which
was under the care of guardians. A dispute has arisen concerning
the inheritance which came to the minor, between those who are the
reversionary heirs of the father of the minor,--the possession belongs
to the reversionary heirs." The first statement is that of the next of
kin--"That money, concerning which he, whose next of kin we are, said
nothing in his will, belongs to us." The reply is--"No, it belongs
to us who are the reversionary heirs according to the will of his
father." The thing to be inquired into is--To whom does it rightfully
belong? The argument is--"For the father made a will for himself and
for his son as long as the latter was a minor, wherefore it is
quite clear that the things which belonged to the son are now ours,
according to the will of the father." The argument to upset this
is--"Aye, the father made his own will, and appointed you as
reversionary heir, not to his son, but himself. Wherefore, nothing
except what belonged to him himself can be yours by his will." The
point to be determined is, whether any one can make a will to affect
the property of his son who is a minor, or, whether the reversionary
heirs of the father of the family himself, are not the heirs of his
son also as long as he is a minor. And it is not foreign to the
subject, (in order that I may not, on the one hand, omit to mention
it, or, on the other, keep continually repeating it,) to mention a
thing here whic