Berry v. Pulliam, 1 Hayw. (N. Car.) 16; Roberts v. Arthur, 2 Salk. 497; Anonymous, 3 Salk. 119; Polk v. Mitchell, I Harr. (Del.) 433

Possession of Writing. - Where there is a profert, it must be remembered that the writing is in possession of the court and not of the party. Bac. Abr., tit. Pleas and Pleadings, (I) 12; Brown v. Jones, 10 Gill & J. (Md.) 335; Birckhead v. Saunders, 2 Har. & G. (Md.) 83; Rex v. Amery, 1 T. R. 149.

The Whole Doctrine of the Law upon the Subject of Proferts is based upon the theory that the court shall be able without the intervention of a jury to settle a question of law arising on the pleadings. Corlies v. Vannote, 16 N. J. L. 324, citing Master v. Miller, 4 T. R. 339. It is, however, insisted by some that profert is not made for this reason, but that it is a relic of one of the original rules of pleading, that every affirmative averment must be supported by an offer of some mode of proof. Stephen's Pleading (Andrews's ed.) 428, and Appendix.

1. See the statutes of the various jurisdictions and the following cases: Clary v. Thomas, 103 Mass. 44; Brown v. State, 44 Ind. 222; Kellogg v. Baker, 15 Abb. Pr. (N. Y. Super. Ct.) 287; People v. De La Guerra, 24 Cal. 73; Vannice v. Green, 14 Iowa 262.

Exhibits. As to the practice of attaching exhibits to pleadings, see article EXHIBITS, vol. 8, p. 736.

2. Chitty on Pleadings (16th Am. ed.) 378. See also Stephen's Pleading (Andrews's ed.), § 226.

(Tex.) 566; McMillan Marble Co. v. Black, 89 Tenn. 118 [citing Union Bank v. Osborne, 6 Humph. (Tenn.) 319; Lowry v. Medlin, 6 Humph. (Tenn.) 451; Walt v. Walsh, 10 Heisk. (Tenn.) 316]; Copewood v. Taylor, 7 Port. (Ala.) 33.

3. Thoresby v. Sparrow, I Wils. 16; Smith v. Woodward, East 585; Wellford v. Miller, I Cranch (C. C.) 514: Powers v. Ware. 2 Pick. (Mass.) 451; Wofford v. Board of Police, 44 Miss. 587; Birney v. Haim, 2 Litt. (Ky.) 262; Auditor v. Wooruff, 2 Ark. 73; Jones v. Simmons, 4 Humph. (Tenn.) 314; Mason v. Buckmaster, 1 Ill. 27; Carson v. Pearl, 4 J. J. Marsh. (Ky.) 92.

In Dugger v. Oglesby, 99 Ill. 405, the court said that "where a profert or an excuse for the want of it is necessary, if the plaintiff make profert of, and thereby profess to produce, the deed, when he is not prepared to do so, and the defendant pleads non est factum, the plaintiff will be nonsuited on the trial, as it will not be sufficient in such case to prove that the deed was lost or destroyed" and then furnish a copy. The plaintiff's course if he has inadvertently pleaded with a profert is to amend. Nothing, when profert has been made, can dispense with the production of the deed itself.

But it was held in New York that profert of a certified transcript of a recorded instrument was sufficient. Clark v. Nixon, 5 Hill (N. Y.) 36.

4. For it is a maxim in law that he who is party or privy in estate, or he who justifieth in the right of him who is party or privy, plead a deed, although he who is privy doth not claim but parcel of the original estate, yet he

An Objection to the Profert is too late when first presented in an appellate court. Holdeman v. Knight, Dall.

4

5

ought to show the original deed to the court; and the reason that deeds being so pleaded shall be showed to the court is that to every deed two things are requisite and necessary; the one, that it be sufficient in law, and that is called the legal part, because the judgment of that doth belong to the judges of the law; the other concerns matter of fact, sc., if it be sealed and delivered as a deed, and the trial thereof belongeth to the country. And therefore every deed ought to prove itself, and to be proved by others: approve itself upon its showing forth to the court in two manners: 1. As to the composure, the words to be sufficient in law, and the court shall judge that. 2. That it be not rased or interlined in material points or places. 3. That it may appear to the court and to the party if it were upon condition, limitation, or with power of revocation, etc., to the intent that if it be conditional, or if there be a limitation or power of revocation in the deed, if the deed be single, or if there wanteth a counterpane of the indenture, the other party might take advantage of the condition, limitation, or power of revocation. * * * And these are the reasons of law that deeds pleaded in courts shall be showed forth in courts.' Leyfield's Case, 10 Coke 88.

* * *

1. U. S. Bank v. Sill, 5 Conn. 106; Hinsdale v. Miles, 5 Conn. 331; Commercial Ins. Co. v. Mehlman, 48 Ill. 313; Regents v. Detroit Young Men's Soc., 12 Mich. 138; Terrell v. Atkinson, 2 Wash. (Va.) 143.

Merely Fixing a Seal to a Simple Contract will not convert it into a specialty of which it is necessary to make profert. Clement v. Gunhouse, 5 Esp. N. P. 83; Baird v. Blaigrove, 1 Wash. (Va.) 170; Austin v. Whitlock, I Munf. (Va.) 487.

Promissory Notes and Bills and assignments thereof when made by indorsement have in some states been placed in the same category as deeds at common law. Beebe v. Real Estate Bank, 4

Ark. 127; Pickett v. R. E. Bank, & Ark. 224; Pryor v. Watson, 8 Ark. 112; Gregory v. Allyn, 10 Conn. 136: Chaplin Soc. v. Canada, 8 Conn. 286; Slocum v. Sanford, 2 Conn. 533; Anderson v. Allison, 2 Head (Tenn.) 122; Everly v. Marable, 2 Yerg. (Tenn.) 113.

And where there were two counts in a declaration upon two notes, profert of both notes at the conclusion of the last count was held sufficient. Hynson v. Ruddel, 11 Ark. 33. See also article NEGOTIABLE INSTRUMENTS, vol. 14, p. 571.

2. See article EXECUTORS AND ADMINISTRATORS, vol. 8. p. 676.

3. This is the general rule. Leyfield's Case, 10 Coke 92. It seems to be the ancient and well-established rule that a person claiming a benefit under a specialty must make profert thereof. Metcalf v. Standeford, 1 Bibb (Ky.) 618. And the principle is that where the deed is not merely the instrument but the foundation of the action, or where the right of action is not created by operation of law but by the act of the party, the obligation or any instrument embracing a contract must be proferted in the pleading. Austin v. Dills, 1 Tyler (Vt.) 308; Smith v. Simms, 9 Ga. 418.

4. Wymarke's Case, 5 Coke 74; Leyfield's Case, 10 Coke 92; Read v. Brookman, 3 T. R. 151; Cutts v. U. S., 1 Gall. (U. Š.) 69; Hendy v. Stephenson, 10 East 55.

The Usual Formula of an Excuse is: "Which said writing obligatory (or other deed) having been lost by lapse of time (or, destroyed by accidental fire, or, being in the possession of the said), the said - cannot produce the same to the court here." Stephen's Pl. (Andrews's ed.), § 226.

5. Instrument Lost or Destroyed. — Hinsdale v. Miles, 5 Conn. 331; French v. Marstin, 24 N. H. 440; Read v. Brookman, 3 T. R. 151. The last-named case is a leading one on the subject, and places the doctrine on the true ground, which is that the law compels

of a third party.1

no one to do an impossibility, holding on the authority of Leyfield's Case, 10 Coke 92, that even though where in great and notorious extremities, as by casualty of fire, a man's evidences are all burned, he may be permitted on the general issue to prove the deed to the jury by witnesses without the production of the deed itself; yet even in such case he should aver everything_material in the deed, with an excuse for the omission of profert. And see Metcalf v. Standeford, 1 Bibb (Ky.) 618; Smith v. Lloyd, 16 Gratt. (Va.) 295; Respublica v. Coates, 1 Yeates (Pa.) 2; Edwards v. M'Kee, 1 Mo. 123; Powers v. Ware, 2 Pick. (Mass.) 451.

Loss After Profert Made. If after profert made the document be lost or destroyed the plaintiff should ask leave to amend. Smith v. Woodward, 4 East 585: Rees v. Overbaugh, 6 Cow. (N. Y.) 746.

Deed Found After Excuse Made. Where an excuse for profert has been made, if the deed be found upon trial it may be produced in evidence. Hawley v. Peacock, 2 Campb. 557.

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1. Document in Hands of Third Party. - Barbour v. Archer, 3 Bibb (Ky.) 8. Wrongful or illegal possession by the defendant of a document declared on, if so alleged, is a sufficient excuse. Robinson v. Curry, 6 Ala. 842. But it is not a sufficient excuse that the deed on which the action is founded was at the time of its execution delivered to a third person for the benefit of the parties. Wheeler v. Miller, 2 Den. (N. Y.) 172.

original cannot be had, and a copy necessarily must be used. Riddle v. Potter I Cranch (C. C.) 288; Moore v. Paul, 2 Bibb (Ky.) 330; Wymarke's Case, 5 Coke 75.

4. Dangerfield v. Thomas, 9 Ad. & El. 292, 36 E. C. L. 143; Francis v. Hazlerig, 1 A. K. Marsh. (Ky.) 93: Bender v. Sampson, II Mass. 42.

5. McCormick v. Kenyon, 13 Mo. 131; Langhorne v. Richmond City R. Co., 91 Va. 364; Grubbs v. National L. Maturity Ins. Co., 94 Va. 589; Duvall v. Craig, 2 Wheat. (U. S.) 45; Whittenton Mfg. Co. v. Memphis, etc., Packet Co., 21 Fed. Rep. 896; Banfill v. Leigh, 8 T. R. 573; Newborough v. Schroeder, 7 C. B. 342, 62 E. C. L. 342; Thriscutt v. Martin, 3 Exch. 454; Com. Dig., Pleader, O 15.

Where Action Is Brought on the Coupons of Bonds no profert of the bonds is necessary, because the bonds are stated merely as inducement. New London City Nat. Bank v. Ware River R. Co., 41 Conn. 542; Nashville v. Potomac Ins. Co., 2 Baxt. (Tenn.) 296.

6. A Stranger to a Deed is not bound to make profert; it is only a party or privy to a deed, or to some estate of another who is a party or privy, who must do so. Shep. Touch. 73. But the obligation can hardly be said to rest in all cases on mere privity, for it seems rather to depend on the question whether the party pleading has come in conventionally as a privy, thus having it in his power to obtain the deed itself, or at any rate to provide for having the use of it whenever it may be necessary; and there are several cases where persons who have come in as privies by operation of law have been excused from making profert of the deeds under which they claimed. Among them are guardians, tenants by statute merchant, staple, or elegit, or in dower. Co. Litt. 2254, 2256; Van

Excuse Specific. - As the excuse for the omission can be traversed, it must be specific. Bolton v. Carlisle, 2 H. Bl. 259; Hendy v. Stephenson, 10 East 55.

2. McMillan Marble Co. v. Black, 89 Tenn. 118.

3. The reason for this is that the