The thing to be decided is—­“Whether the atrocity of the injuries is a sufficient reason why, while that point is before the tribunal, a previous decision should be given concerning some greater crime, concerning which a tribunal is prepared.”  And this is the example.  But in every cause the question ought to be put to both parties, by whom, and by whose agency, and how, and when it is desirable that the action should be brought, or the decision given; or what ought to be decided concerning that matter.

That ought to be assumed from the divisions of the law, concerning which we must speak hereafter; and we then ought to argue as to what is usually done in similar cases, and to consider whether, in this instance, out of wickedness, one course is really adopted and another pretended; or whether the tribunal has been appointed and the action allowed to proceed through folly or necessity, because it could not be done in any other manner, or owing to an opportunity which offered for acting in such a manner; or whether it has been done rightly without any interruption of any sort.  But it is a common topic to urge against the man who seeks to avail himself of a demurrer to an action, that he is fleeing from a decision and from punishment, because he has no confidence in the justice of his cause.  And that, 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