the plaintiff, on executing a writ of inquiry under the statute 8 & 9 W. III. c. 11, must prove that the bond mentioned in the suggestion, and produced to the jury, is that on which the action was brought.(m) *CHAPTER XXIII. [ *586 ] Of OYER, and COPY of DEEDS, &c.; INSPECTION, and COPIES of WRITTEN INSTRUMENTS, BOOKS, COURT ROLLS, &c.; and PARTICULARS of DEMAND, or SET off. HITHERTO we have supposed the action to be rightly brought, and considered what is to be done, when the defendant has no merits. We have seen, that in such case he should compromise or compound the action, confess it, or let judgment go by default. But when the defendant has merits, he should prepare for his defence; and for that purpose may, if circumstances render it necessary, crave oyer and copy of deeds, &c., claim inspection and copies of written instruments, books, court rolls, &c., or call for particulars of the plaintiff's demand; or he may move the court to change the venue, consolidate actions unnecessarily divided, or strike out superfluous counts; or he may bring money into court. Oyer of deeds, &c., is demandable by the defendant, or by the plaintiff. If the plaintiff, in his declaration, necessarily make a profert in curia of any deed, writing, letters of administration, or the like, the defendant may pray oyer of the deed, &c. ;(a) and must have a copy thereof delivered to him, if demanded, paying for the same after the rate of four-pence per sheet:(6) And a defendant, who prays oyer of a deed, is entitled to a copy of the attestation, and names of the witnesses, as well as of every other part of the deed. (c) So likewise, if the defendant in his plea make a necessary profert in curia of any deed, &c., the plaintiff may pray oyer :(d) and shall have a copy, at the like rate:(e) And the party, of whom oyer is demanded, is bound to carry the deed, &c., to the adverse party.(f) In an action on a bond, in which articles are referred to, oyer of the bond may be demanded, but not of the articles;(g) though time to plead may be obtained, till the plaintiff give a copy of them, on an affidavit that defendant has no copy.(g) Formerly, all demands of oyer were made in court, where the deed is by intendment of law, when it is pleaded with a profert in curia;(h) And therefore, when oyer is craved, it is supposed to be of the court, and *not of the party; and the words ei legitur in hæc verba, &c., [ *587] are the act of the court.(aa) In practice, however, oyer is now usu (m) 2 Campb. 121. And for a full account of the proceedings under this statute, see 1 Wms. Saund. 5 Ed. 58, in notis. (a) Append. Chap. XXIII. 3 1. (b) 2 Salk. 497, R. T. 5 & 6 Geo. II. (6), K. B. Willes, 288. Barnes, 363, S. C. (ƒ) 2 Durnf. & East, 40. 6 Mod. 122. (d) Append. Chap. XXIII. § 2. (g) Per Cur. H. 21 Geo. III. K. B.; and see 1 Wms. Saund. 5 Ed. 9. (h) 12 Mod. 598. 3 Salk. 119. (aa) 12 Mod. 598. 3 Salk. 119. 1 Sid. 308; but see 2 Lutw. 1644, contra. ally demanded, and granted by the attorneys:(6) [A] And where the defendant is entitled to have oyer of a deed, it cannot be dispensed with by the court; (b) 6 Mod. 28. [A] The proper mode, of obtaining oyer is by prayer entered on record, to which the opposite party may counterplead, and thereby have decision of the court whether oyer is to be given or not; Pendleton v. Bank of Kentucky, 1 Monr. 171. Oyer must be craved and had, to put a record before the court, but oyer of the officer's return to the process is unnecessary; Commonwealth v. Roby, 12 Pick. 496. Guild v. Richardson, 6 Ib. 364. Slayton v. Chester, 4 Mass. 478. So where oyer is craved of the note declared on, and it is spread upon the record, but oyer is not craved of the indorsements, the indorsements make no part of the record, notwithstanding the clerk may have copied the same into another part of the record; Suggle v. Adams, 3 A. K. Marsh, 429. MLean v. Oustott, 3 Pike, 478. But a defendant who craves oyer of a deed is entitled to a copy of the attestation, and to the names of the witnesses; Smith v. Alworth, 18 Johns. 445. If he is entitled to oyer, he cannot be compelled to plead without it. But if he elects to answer, it is a waiver of the objection that the names of the witnesses were not given in the oyer, and cannot be a ground of demurrer to the declaration; Ib. In an action on a probate bond, the court will not grant oyer of the original bond, but order a copy to be furnished the defendants; Thatcher v. Lyman, 5 Mass. 260. Judge of Probate v. Merrill, 6 N. Hamp. 256. Oyer is not demandable of a record, unless it be a deed enrolled, letters of administration, &c.; the recital of a record must be taken advantage of by plea of nul tiel record; but, if a record be correctly set out in a scire facias issued upon it, and does not show the liability of one of a plurality of defendants, perhaps a several demurrer at his instance should be sustained; Hall v. State, 9 Ala. 827. The profert of letters of administration places them in the hands of the court of whom oyer is craved, and not of the party; and, being in possession, the court must be assured, by an inspection of the letters, of the right of the party to sue, and of the jurisdiction of the court granting them; Brown v. Jones, 10 Gill & Johns. 334. Where there is no oyer craved of a writing mentioned in a plea, such writing does not constitute a part of the record; and it will be taken to be such a writing as it is described in the plea to be; Wriston v. Lacey, 7 J. J. Marsh. 219. Or, where a record is the ground of action, the declaration must refer to it, with a prout patet per recordum. Aliter, if it be merely inducement; Jarman v. Windsor, 2 Harring. 162. Neither is it necessary to crave oyer of the capias ad respondendum; it is a part of the record without it; Pendleton v. Bank of Kentucky, 1 Monr. 171. Nor of the writ, it being part of the record, either party may procure a copy; profert of it, therefore, is not necessary; and it is no more necessary for the other party to crave oyer, in order to obtain a copy; Renner v. Reed, 3 Pike, 339. And oyer of the writ (if in any case demandable,) cannot be craved after the day on which the cause is first set for trial; Layman v. Waynick, 6 Blackf. 189. Craving and obtaining oyer of a bond makes it a part of the declaration; so that on a demurrer the court will give judgment against a plaintiff in whose bond thus produced there is a defect; Commissioners v. Gaines, Const. Rep. 459. It is not necessary to make profert of writings not under seal; Mason v. Buckmaster, Breese, 9. All sealed instruments in the power of the party pleading must be pleaded with a profert ; Bender v. Sampson, 11 Mass. 42. Powers v. Ware, 2 Pick. 451; although a plaintiff is not bound to make profert of a deed to the custody of which he has no legal right; Birney v. Haim, 2 Litt. 262. In an action of debt upon a bond, where the original is filed with the clerk of the court there to remain and become a public record, as in the case of a trustee's bond given in pursuance of a decree of a court of equity, the plaintiff is not required to make a profert of it, not being, in legal contemplation, in the possession of the original; Butler v. State, 5 Gill & Johns. 511. Want of profert of the deed declared on is ground for general demurrer; Metcalf v. Standeford, 1 Bibb, 618. But see Anderson v. Barry, 2 J. J. Marsh, 265. Briggs v. Greenlee, Minor, 123. The covenant of which profert is made is not part of the record, without oyer; Gist v. Steele, 1 Bibb, 571. Writing proffered is not part of the record unless oyer is taken; Adams v. Lacy, Ib. 328. A party is not entitled to oyer where there has been no profert; but, if it has been asked and given, he may make use of it; Story v. Kimball, 6 Verm. 541. Oyer of a bond does not include oyer of its condition; nor é converso. If oyer is wanted, it should be prayed of each; but the plaintiff may have the whole bond enrolled; United States v. Sayer, 1 Gallis. 86. In an action on a judgment, profert of the record is unnecessary; the prout patel per recordum is sufficient, even on special demurrer; Capp v. Gilman, 2 Blackf. 45. If profert is made of the writing declared on, and oyer is not craved, the writing must be taken as set forth in the declaration; Pollard v. Yoder, 2 A. K. Marsh. 264. But oyer cannot regularly be craved of a deed, where profert is not made of the same in the previous pleading; Bettle v. Wilson, 14 Ohio, 257. Where profert is necessary, the omission must be taken advantage of before verdict; Francis v. Hazlerig, 1 A. K. Marsh. 93. If oyer be not taken of a writing declared on, it nor can he be compelled to plead without it, (c) even though the deed be lost. Oyer cannot be granted of a deed operating under the statute of uses:(d) And where a tenant in a writ of entry pleaded such deed, without a profert, and oyer was required to be granted by a judge's order on a given day; the court directed such order to be rescinded; and the demandant having signed judgment for want of oyer, it was also set aside, the order being merely in the nature of an interlocutory proceeding.(d) When the deed is in the hands of a third person, the court will oblige him to give oyer and produce it.(e) When a deed is shown in court, it remains there, in contemplation of law, all the term in which it is shown; for all the term is considered in law but as one day and at the end of the term, if the deed be not denied, the law doth adjudge it to be in custody of the party to whom it belongs; but if it be denied, then it shall remain in court till the plea is determined; and if it eventually turn out not to be a good deed, it shall be destroyed.(ƒ) But letters testamentary, or of administration, are not supposed to remain (c) 2 Lil. P. R. tit. Oyer, 266. 2 Keb. 275. 6 Mod. 28. 2 Str. 1186. 1 Wils. 16, S. C. Totty v. Nesbitt, T. 24 Geo. III. K. B., and Mattison v. Atkinson, E. 27 Geo. III. K. B., cited in 3 Durnf. & East, 153, (n). R. M. 1654, 15. C. P. Pr. Reg. 277. (d) 9 Moore, 593. (e) 2 Str. 1198. Ante, 487. (f) Co. Litt. 231, b. 5 Co. 74, b. 2 Lutw. 1644. forms no part of the record, though certified in the transcript; Palmer v. M Ginnis, Hardin, 505. And oyer of a deed set forth in the first count does not make that deed part of the record, so as to apply it to other counts in the declaration; Hughes v. Moore, 7 Cranch, 176. And where profert is made in the declaration, the actual production of the paper is indispensable; Moore v. Fenwick, Gilman, 214. A profert is necessary in pleading a deed which is necessary ex institutione legis, and the omission of a profert in such case is fatal on special demurrer; Brown v. Copp, 5 N. Hamp. 223. Profert of a specialty is not necessary where it has been pleaded and remains in another court, or in the same court in another action, and where such former profert has been averred; Moore v. Paul, 2 Bibb, 330. The plaintiff declared upon a constable's bond and made profert of the original; on oyer craved he produced a copy, and the defendant demurred for a variance. Held, that the demurrer was sustainable. The fact that, during the argument of the demurrer the original was brought into court, would make no difference; Jones v. Simmons, 4 Humph. 314. Want of profert cannot be taken advantage of after judgment by default, but only by demurrer ; Tucker v. Real Estate Bank, 4 Pike, 429. A party who has obtained oyer of specialty may waive the benefit of it if he please; but, if he professedly set it out upon the record, he is bound to recite it truly and entire. If he do not, the court will, on motion, reject such pleadings, and give judgment for want of a plea, unless leave is obtained to proceed more correctly; Rudisill v. Sill, 4 Blackf. 282. If a party partially states a deed, the defendant may crave oyer of the deed and demur; Hobson v. MArthur, 3 M'Lean, 241. Where a party is bound to give oyer of a deed, he must produce copies of all indorsements and memoranda upon it, and all papers annexed to it; Van Rensselaer v. Poucher, 24 Wend. 316. But a stranger is not bound to give oyer; nor those who become privies by the acts of others, or operation of law; Ib. The time to take advantage of an insufficient compliance with the demand for oyer is at the trial, and not by motion to produce the papers that are wanted; Brooks v. Brooks, 1 Halst. 404. And a party can demand oyer of a bond only once in the same suit; Taylor v. Bank of Kentucky, 2 J. J. Marsh. 564. Oyer need not to be given of an instrument that is lost; Paddock v. Higgins, 2 Root, 482. Respublica v. Coates, I Yeates, 2. But see Metcalf v. Standeford, 1 Bibb, 618. Nor need it be given on an instrument alleged in the declaration to be lost; Paddock v. Higgins, 2 Root, 316. Kelley v. Riggs, Ib. 126. But it is no excuse upon oyer to say that the writing is lost, unless the plea contains also a good excuse for not having it; Branch v. Riley, 1 Ib. 541. In Kentucky, the defendant has a right to oyer of any writing declared on; Anderson v. Barry, 2 J. J. Marsh. 265. Under the statute, in Illinois, it is necessary for the party to have oyer of writings not under seal, on which suit is brought, as he is bound to deny their execution under oath; Mason v. Buckmaster, Breese, 9. And although oyer at common law is only demandable of specialties, the statute of this state has extended the rule, and it there applies to any writings, Giles v. Shaw, Breese, 169. It has also been there held, that, in order to make a note a part of the record, so as to enable the court to notice it for any purpose, the defendant should crave oyer; Sims v. Hugsby, Breese, Ap. 27. in court all the term; for the party may have occasion to produce them elsewhere.(g) Hence it is, that oyer of a deed cannot in strictness be demanded, but during the same term it is pleaded:(h) And as a general imparlance is always to a subsequent term, it follows that oyer of a deed cannot be demanded after such imparlance.(2) A different doctrine is indeed laid down in one case,(k) which must be understood of a special imparlance, to another day in the same term. Though oyer is not in strictness demandable of a record,(1) yet if a judg ment or other matter of record in the same court be pleaded, the party pleading it must give a note in writing of the term and number roll, whereon such judgment or matter of record is entered and filed; or in default thereof, the plea is not to be received:(m) And probably on this account, the party was not anciently permitted to plead nul tiel record of a judgment or matter of record in the same court.(n) But where a judgment or matter of record is pleaded in a different court, the party, not [*588] being *entitled to an account of the term and number roll, must plead nul tiel record. And it seems, that oyer is not demandable of an act of parliament.(a) The defendant was formerly allowed oyer of the original writ, in order to demur or plead in abatement, for any apparent insufficiency or variance.(66) But this indulgence having been abused, and made an instrument of delay, a rule was made, that a defendant be not allowed oyer of an original writ; and that if he demand it, the plaintiff may proceed as if no demand had been made.(c) The demand of oyer is a kind of plea ;(d) and should regularly be made by a note in writing, (e) before the time for pleading is expired.(f) If it be not made till after that time, the plaintiff may consider the demand as a nullity, and sign judgment. But though oyer be not in strictness demandable, yet if it be given, the party demanding has a right to make use of it.(gg) If the defendant would insist upon his demand of oyer, he should move the court to have it entered upon record :(hh) If the plaintiff, on the other hand, would contest the oyer, he may either counterplead it, or strike out the rest of the pleading and demur ;(2) upon which the judgment of the court is, either that the defendant have oyer, or that he answer without (g) 2 Salk. 497. 12 Mod. 598, S. C. (h) 5 Co. 74, b. (i) 1 Keb. 32. 2 2 Lutw. 1644. 1 Durnf. & East, 149. Lev. 142. Freem. 400. 3 Keb. 480, Ld. Raym. 970. Ante, 462, 3. (k) 12 Mod. 99; and see 2 Show. 310. see 1 Ld. Raym. 84. Steph. Pl. 88. 491, S. C. 6 Mod. 28; but see 2 Doug. 476, 7. 1 Durnf. & East, 149, 50; but (m) Keilw. 96, Carth. 454. 1 Ld. Raym. 347, Carth. 517. 1 Ld. Raym. 550. 2 Str. 823. R. T. 5 & 6 Geo. II.(b). K. B. 320. (n) 5 Hen. VII. 24, per Brian. 3 Keb. 76. (bb) Gilb. C. P. 52. 12 Mod. 35, 189. Raym. 970. R. T. 5 & 6 Geo. II. (¿), K. B. 5 Taunt. 653, (a). (c) R. T. 19 Geo. III. K. B. see Bro. Abr. tit. Oyer, pl. 19. (d) 3 Salk. 119. (a) Doug. 476. Godb. 186, contra. 2 Lutw. 1644. 6 Mod. 27. 2 Salk. 498. 2 Ld. Doug. 227, Barnes, 340; and (f) Fowler & Dyer, M. 20 Geo. III. K. B. 1 Durnf. & East, 150. Barnes, 268, 326, 7. 2 Bos. & Pul. 379; but see Cas. Pr. C. P. 72, 3, 96. Pr. Reg. 278, 299, S. C. Barnes, 329. 2 Wils. 413; by which it appears, that formerly oyer must have been demanded, in the Common Pleas, before the expiration of the rule to plead: and vide ante, 469. (99) Doug. 476, 7; and see 1 Wms. Saund. 5 Ed. 317, (2). (ii) 2 Lev. 142. (hh) 6 Mod. 28. 2 Salk. 497; and see 2 Ld. Raym. 970. 1 Wms. Saund. 5 Ed. 9, c. it:(k) On the latter judgment, the defendant may bring a writ of error; for to deny oyer where it ought to be granted is error, but not é converso.([A] There is no settled time prescribed for the plaintiff to give oyer;(m) but the defendant shall in all cases have the same time to plead, or as many pleading days after oyer given, as he had at the time of demanding it:(n) The time allowed for the defendant to give oyer of a deed, &c. to the plaintiff, is two days exclusive after it is demanded :(o) and if it be not given in that time, the plaintiff may sign judgment, as for want of a plea.(p) If given, the plaintiff shall have the same time to reply, after oyer given him by the defendant, as he had at the time of demanding it.(q) *The defendant having demanded oyer of a deed, ought to in- [ *589 ] sert it at the head of his plea; and if he do not, the plaintiff, in the Common Pleas, may insert it there for him, in making up the issue :(a) but it is otherwise in the King's Bench, where the defendant may either set forth the oyer in his plea or not, at his election.(b) If a plaintiff state the legal effect of a deed, the defendant has a right to see it on oyer; and if the meaning vary from that attributed to it in the declaration, he should, in order to take advantage of the variance, plead non est factum, without setting out the deed: If it do not support the breach, he should set it out and demur:(cc) and if he set it out, the court must adjudge upon it, as parcel of the record; though it was not strictly demandable at the time of granting it.(d) If the defendant, however, set out the deed on oyer, and plead non est factum, the only question at the trial of that issue is, whether the deed whereof the tenor is set out, was executed by the defendant or not.(e) But the defendant, in the King's Bench, is not bound to set forth the oyer in his plea ;(f) and if he do not, the plaintiff, if he would avail himself of the deed, must pray it to be inrolled at the head of his replication.(g) If the defendant, after craving oyer of a deed, do not set forth the whole of it, the plaintiff, we have seen, (h) may sign judgment as for want of a plea; but he cannot demur for that cause:(1) or if the defendant, in his plea, set out the deed untruly, the plaintiff by his replication may pray that it be inrolled, and so procure it to be truly set forth :(kk) And if there be any variance, however trifling, between the deed and the oyer, it is fatal at the trial, on the plea of non est factum.(ll)[B] (k) 2 Lev. 142. (2) 2 Salk. 497. 6 Mod. 28. 2 Ld. Raym. 970, S. C. 2 Str. 1186. 1 Wils. 16, S. C. 1 Wms. Saund. 5 Ed. 9, c. 2 Wms. Saund. 5 Ed. 46, b. (7). (m) It seems from the rule of Mich. 1654, 15, C. P., that it ought to be given, in the Common Pleas, before the end of the next term after it is demanded. (n) 1 Str. 705, R. T. 5 & 6 Geo. II. (b). K. B. 8 Durnf. & East, 356, 7. Cas. P. R. C. P. 72, 81, 2; 143. Pr. Reg. 28, 300, 301. Barnes, 238, 254, S. C. Ante, 468. (0) Carth. 455. 2 Durnf. & East, 40. (p) 6 Mod. 122. Cas. Pr. C. P. 95. Pr. Reg. 301. Barnes, 245, S. C. (9) R. T. 5 & 6 Geo. II. (b), K. B. And see further as to oyer, and such points in particular respecting it as relate to pleading, 1 Chit. Pl. 4 Ed. 369, &c. Steph. Pl. 86, &c. (a) Barnes, 327. (b) 2 Str. 1241. 1 Wils. 97; and see Steph. Pl. 88, 9. (cc) 4 Barn. & Cres. 749, 50. 7 Dowl. & Ryl. 257, S. C. per Bayley, J. (d) 3 Salk. 119. Carth. 513. 6 Mod. 27. Doug. 476. (e) 4 Barn. & Cres. 741; and see 11 East, 633. 5 Taunt. 707. (f) 2 Str. 1241. 1 Wils. 97; but see Barnes, 327, C. P. contra. (g) 2 Str. 1241. 1 Wils. 97. (kk) Com. Dig. tit. Pleader, P. 1. (h) Ante, 565. (i) 2 Salk. 602. (U) 1 Marsh, 214. |