either nul tiel record or assets ultra fraudom, or any other fact properly triable by a jury. Teasdale v. Branton,* 2 Hayw., 377.

§ 1085. Administrator's plea, statute of limitations - But one replication allowed.Where an administrator was defendant, the federal circuit court sitting at Alexandria, D. C., permitted him to plead the statute of limitations at the trial term, to which plea the plaintiff could not make more than one replication. Offut v. Hall, 2 Cr. C. C., 363.

§ 1086. Statute of limitations - Discontinuance of suit within six years.- To a plea of the statute of limitations it is not a good replication that a suit for the same demand was commenced in a court in another state and discontinued within six years. Delaplaine v. Crowninshield, 3 Mason, 329.

§ 1087. leave of court to file several replications, no adjudication of their sufficiency Defenses held bad.— To a plea of limitations in an action of assumpsit, the court under special order allowed the plaintiff to file the following four replications, to which the defendant demurred: (1) A promise for a consideration not to plead limitations. It was held doubtful whether this was matter for replication, as an application to a court of equity to restrain the defendant from the plea would be the proper remedy, but as the defendant made no objection it was allowed. (2) A new promise to pay. This held good. (3) Defendant absent from the state eleven months. This was held to be bad and frivolous, because, if true, it would not follow that six years had not elapsed since the defendant resided out of the state. (4) That an act of congress discharged the defendant from personal liability and substituted the secretary of the treasury in his place, should judgment be declared against the defendant in his official capacity, and that the secretary had promised not to plead limitations and had made a new promise. This was called extraordinary pleading. It was double, and contained no substantial matter of avoidance. The leave of the court to file the several replications was held no adjudication of their sufficiency, which was to be determined afterwards, as shown above. Andreae v. Redfield,* 15 Int. Rev. Rec., 105.

§ 1088. Suit in name of one for benefit of another — Bar to plaintiff not bar to interest of third person. If a suit is rightly brought in the name of the plaintiff for the benefit of a third person, and the defendant's plea shows a sufficient bar against the plaintiff, it is competent for the plaintiff. in his replication, to show that a third person had an equitable interest which ought not to be affected. Brown v. Hartford Fire Ins. Co.,* 21 Law Rep., 726.

§ 1089. Plea, pendency of another suit - Replication, suit dismissed.- When, in a suit on a promissory note, the pendency of another suit in the state court was pleaded in bar, a replication, that since the filing of the plea the suit had been dismissed, was held to be a good replication in Illinois. Chamberlain v. Eckert, 2 Biss., 124.

§ 1090. Where the defendant pleads a record of the same court, the replication denying it concludes with a verification, and a day is given to the parties to hear judgment. If the record be of another court the replication nul tiel record may either conclude by giving the defendant a day to bring in the record, or with an averment and prayer of the debt and damages. In the former case the issue is complete on the replication; in the latter there must be a rejoinder, re-asserting the existence of the record, on which account the former is to be preferred. Bobyshall v. Oppenheimer,* 4 Wash., 388.

§ 1091. Replication must traverse-Statement of facts inconsistent with plea, insufficient. In an action by the United States on a claim assigned to it by a third party, defendant pleaded that the transaction was a private one between him and the assignor and set up the statute of limitations. Plaintiff, without traversing the allegation that the transaction was private, replied that the money belonged to the United States and was advanced by the assignor as an officer of the United States to defendant as an officer. Held, that although these facts were inconsistent with the facts stated in the plea, yet no issue was raised, and judgment must be for defendant. United States v. Buford,* 3 Pet., 12.

§ 1092. Statute of limitations — A replication must answer the plea.- When the plea sets up the statute of limitations a replication that plaintiff lived out of the state is not good, unless this is one of the exceptions provided for in the statute. Jones v. Hays, 4 McL., 521. § 1093. To a plea of the statute of limitations it is a good replication that plaintiff has been hitherto beyond sea. Chomqua v. Mason,* 1 Gall., 341.

1094. Action on sheriff's bond — Whether facts have already been tried by law of state question of law, not subject of replication.- By the laws of Alabama, where property is taken in execution, if the sheriff does not make the money, the plaintiff is allowed to suggest to the court that the money might have been made with due diligence, and thereupon the court is directed to frame an issue in order to try the fact. In a suit upon a sheriff's bond, where the plea was that this proceeding had been resorted to by the plaintiff and a verdict found for the sheriff, a replication to this plea, alleging that the property in question in that trial was not the same property mentioned in the breach assigned in the declaration, was a bad replication, and demurrable. Chapman v. Smith, 16 How., 114.

§ 1095. Rejoinder, excuse for non-performance after plea of performance. After a plea of general performance, a rejoinder stating an excuse for not performing is bad. McGowan v. Caldwell, 1 Cr. C. C., 481.

§ 1096. Rejoinder - Issuable plea.- Debt on auctioneer's bond; plea, general performance; replication, that the auctioneer did not pay over money to A. and B.; rejoinder, that it had not been established, by a judgment, that money was due to them by the auctioneer, is an issuable plea to set aside an office judgment. Alexandria v. Moore, 1 Cr. C. C., 440.

§ 1997. Inducement in rejoinder containing new and substantive matter, bad. To an action in Michigan on a judgment rendered in New York, defendant pleaded the statute of limitations. Plaintiff replied that he had lived continuously in New York from the time judgment was rendered until within a year. Defendant rejoined that both plaintiff and defendant had lived in New York for eight years after the recovery, and traversed the replication. Held, that the inducement in this rejoinder was new and substantive matter not denying the plaintiff's action, being an attempt in Michigan to rely on the New York statute, and the rejoinder was bad. Egberts v. Dibble,* 3 McL., 86.

§ 1098. An issue is made by an affirmative and a negative, and consists of a single point, though this may embrace several facts. McClintick v. Johnston, 1 McL., 414.

§ 1099. Two affirmatives.- Quare, whether two affirmatives may make an issue. Walker v. Johnson, 2 McL., 92.

§ 1100. Plea in abatement-Affirmative with defendant.- When, upon an issue on a plea in abatement, the affirmative rests with the defendant, and the only evidence introduced is wholly in favor of the plaintiff, it is not error for the judge to direct a verdict for plaintiff. Grand Chute v. Winegar,* 15 Wall., 355.

§ 1101. Issue in form one of fact, but in substance one of law.— An issue raised by the pleadings, which is in form an issue of fact, but in substance an issue of law, cannot be heard by the court without overturning all the established principles of pleading. United States v. Sawyer,* 1 Gall., 86.

5. Profert and Oyer.

SUMMARY - Profert unnecessarily made, § 1102.

§ 1102. Profert of a writing being made, though unnecessarily, the writing is presumed to be in court, and oyer may be demanded. Hammer v. Klein, § 1103. [NOTES.-See SS 1104-1132.]

HAMMER v. KLEIN.

(Circuit Court for Ohio: 1 Bond, 590-592. 1865).

Opinion of the COURT.

STATEMENT OF FACTS.- This case is before the court on a motion by the counsel of the defendants for an order on the plaintiff for oyer of the bond and agreement set forth in the declaration.

For the purposes of this motion it is not necessary to state in detail the particulars of the plaintiff's claim as set out in the declaration. The plaintiff's cause of action is based on a bond executed by one of the defendants in the penalty of $30,000, in connection with a collateral agreement signed by the parties, by which the plaintiff bound himself to do certain acts therein specified before the defendants should incur the penalty named in the bond. These acts, the declaration avers, have been performed by the plaintiff, whereby the defendants have become liable to pay the penalty of the bond. The declaration makes profert both of the bond and the collateral agreement.

The counsel for the plaintiff insists that in this state of the case the defendants are not entitled to oyer as prayed for, either by the rules of pleading in this court, or by the common law.

§ 1103. When in a declaration profert is made of any paper, even unnecessarily, oyer may be demanded of it.

There can be no question that, under the common-law system of pleading,

oyer of any instrument of writing of which profert is made in the declaration, may be demanded, and will be granted of course. As to the instruments of writing collateral to the bond, it is clear, if profert is made of them, oyer may be craved, although the profert may have been made without any necessity for it. Profert being made the writing is presumed to be in court, and oyer may be required. 1 Chitty's Pleadings, 363 (Ad. edition); Stephen on Pleading, 447. In this case it seems profert of the agreement was properly made, as it was essential to give the plaintiff a right of action on the bond. It is, in fact, the sole basis of his claim to recovery on the bond, and oyer may be claimed both of the bond and the collateral agreement.

It seems to be supposed by plaintiff's counsel that the right of a party in a case in this court to demand oyer is abrogated by the operation of the seventh rule of this court, adopting certain provisions of the Ohio code as rules of this court. But this rule clearly applies only to such papers or instruments of writing which are to be used incidentally as evidence, and not to such as are in the possession of the plaintiff, and which constitute the basis of the action. Neither the rule referred to, nor any other rule of this court, has abolished the common-law system of special pleading. Though the system has been greatly modified it still exists, and has existed and been recognized from the first organization of the federal courts in this district. And the right to demand oyer in proper cases being a part of this system of pleading, the court has no hesitation in making the order prayed for in this case. Oyer is accordingly ordered.

§ 1104. Profert necessary for oyer.- Where profert is not made oyer cannot be demanded. Campbell v. Strong, Hemp., 265.

§ 1105. Profert of original, copy as oyer.- A copy will not be received as oyer when a profert has been made of the original; and if a copy is offered the defendant may demur. Wellford v. Miller, 1 Cr. C. C., 514.

§ 1106. Subject of oyer part of record.— Where oyer of any instrument is prayed, or there is a demurrer to any part of the pleadings, such instruments or pleadings become a part of the record. Suydam v. Williamson, 20 How., 427.

§ 1107. Oyer of a deed set forth in the first count does not make that deed a part of the record so as to apply it to the other counts in the declaration. Hughes v. Moore, 7 Cr., 176.

§ 1108. Profert is sufficiently made in the declaration in these terms: "As by the said letters patent and specification, all in due form of law, ready in court to be produced, will fully appear." Wilder v. McCormick, 2 Blatch., 31.

§ 1109. Claim of oyer, when too late. After plea, replication, rejoinder and demurrer, it is too late for defendant to crave oyer of plaintiff's letters of administration. Graham v. Cooke,* 1 Cr. C. C., 116.

§ 1110. Letters of administration, profert of, when necessary.— An administrator suing on a judgment obtained by him in such capacity need not make profert of his letters of administration. Biddle v. Wilkins, 1 Pet., 686.

§ 1111. Instrument to be presented to court.— Where profert is made of an instrument, and question is made on that instrument, it ought to be presented to the court. Grunninger v. Philpot, 5 Biss., 82.

§ 1112. Where profert of letters testamentary is made and oyer is not craved the question of plaintiff's right to sue as executor is not open on demurrer. Childress v. Emory, 8 Wheat., 642.

§ 1113. Oyer craved of the condition of a bond does not entitle the party to oyer of the bond. United States v. Sawyer,* 1 Gall., 86.

§ 1114. Upon oyer of the condition of a bond demanded in a plea the condition becomes a part of the declaration and not of the plea. Ibid.

§ 1115. A former judgment is never pleaded with a profert, but this is made in reply to a plea (or replication) of nul tiel record. Burnham v. Webster, Dav., 236.

§ 1116. The plaintiff is not bound to give oyer of a bond on which the action does not rest, of which profert is not made, and which is on file in the clerk's office, equally accessible to both parties. Rockhill v. Hanna,* 4 McL., 200.

§ 1117. Profert of bond, whole instrument before court. When profert is made of a bond the whole instrument is before the court, and it is not necessary to make separate profert of the condition. United States v. Spalding,* 2 Mason, 478.

§ 1118. Oyer of one part of bond not oyer of whole bond.— If defendant wishes oyer of the whole instrument he must pray it. Oyer of the obligatory part is not oyer of the condition, and each must be prayed for if each is wanted.

Ibid.

§ 1119. Profert of bond from which seal is lost. If the seal is torn off a bond with the assent of the obligee, by mistake or by fraud upon the obligor, the instrument may still be declared on as a deed by making the proper averment of the facts upon the profert. Ibid.

§ 1120. Oyer is not demandable of a record, and when defendant, in an action on an appeal bond, craved oyer of the records referred to in the declaration, a special demurrer to his plea was sustained on this ground. Sneed v. Wister,* 8 Wheat., 690.

§ 1121. Oyer of deed in action on bond for performance of deed.— In an action on a bond for the performance of the covenants in another deed, oyer of such deed cannot be craved, but defendant must show it, with a profert of it, or an excuse for the omission. Ibid.

§ 1122. If oyer be improperly demanded the defect will be open on special demurrer, but will be cured by general demurrer. Ibid.

§ 1123. Oyer-Letters patent.— Oyer is not demandable of letters patent. Smith v. Ely, 5 McL., 76.

§ 1124. Oyer of note.- A note sued on is not part of the record unless produced on oyer. Cook v. Gray, Hemp., 84.

§ 1125. Variance - Oyer necessary to sustain demurrer.- A defendant cannot take advantage of a variance between the writ and declaration by demurrer without praying oyer of the writ. Triplet v. Warfield, 2 Cr. C. C., 237.

§ 1126. Letters of administration - Profert necessary for oyer.

Although the plaint

iffs name themselves administrators, yet, if they have not made profert of their letters of administration, they are not bound to give oyer of them. Mason v. Lawrason, 1 Cr. C. C., 190. § 1127. Letters patent, profert of.— A motion having been made in arrest of judgment, on the ground that no description of the patent was set forth in the declaration in a suit instituted for an infringement of such patent, it was held that the profert of letters patent made them, when produced, a part of the declaration, and gave the invention all the requisite certainty. Pitts v. Whitman, 2 Story, 609.

§ 1128. A former judgment is not pleaded with a profert, but a profert is tendered in reply to the plea or replication of nul tiel record. Burnham v. Webster, Dav., 236.

§ 1129. Oyer cannot be twice demanded. After oyer prayed and demurrer by the defendant the plaintiff is not bound to give oyer at a subsequent term.

spread the oyer upon the record. Offut v. Beatty, 1 Cr. C. C., 213.

The defendant should have

§ 1130. Oyer on plea-day, right to plead after.- If the defendant on the plea-day demand oyer, which is not given until the subsequent term, the court will give the defendant time to plead after oyer. Calvert v. Slater, 1 Cr. C. C., 44.

§ 1131. Expiration of rule to plead.— Oyer of the record of a judgment of another state will not be given if not prayed before the expiration of the rule to plead. Cull v. Allen, 1 Cr. C. C., 45.

§ 1132. Oyer of letters testamentary.- Where plaintiff dies, and the appearance of the administrator is entered, he must give oyer of his letters whenever demanded before the expiration of the rule to plead. North v. Clark,* 3 Cr. C. C., 93.

SUMMARY- Bill to state whole case, § 1133.- Must allege facts necessary to the construction of the language involved, §§ 1134–35.— General certainty in bill ordinarily sufficient, § 1136.— Consideration, how stated in bill for fraud, SS 1137, 1138.- Bill charging shareholders of insolvent corporation, § 1139.— Bill to show how each defendant is concerned as party, § 1140.- Parties to suit to enjoin judgment, § 1141.— Allegation of payment of note, § 1142.— Averments of citizenship in removed cause, § 1143.— Bill to dissolve partnership treated as bill for partition, § 1144.— Multifariousness, §§ 1145-48.- Laches under statute of limitations, §§ 1149-51.— Multifariousness, §§ 1152–57.- Discovery, § 115859.-Infringement of copyright, § 1160.

§ 1133. A bill in equity must contain enough matter in itself to sustain the case and enable the court to make a decree therein, without being supplemented by the answer or the evidence. Harrison v. Nixon, §§ 1161-62.

§ 1134. When a decision depends upon the meaning as used in a will of a technical expression having different meanings in different localities, it is absolutely necessary for the bill to allege the testator's domicile, as the language must be construed as used in that locality, and the court must know by what law to construe the expression. Ibid.

§ 1135. If such a bill comes to the supreme court after final judgment in the circuit court, the case will be remanded, that the bill may be amended and proceedings had de novo. Ibid.

A

§ 1136. In most cases general certainty is sufficient in pleadings in equity, and it is only necessary to distinctly apprise defendant of the precise case he will be obliged to meet. prima facie case thus made out should be answered and not demurred to. St. Louis v. Knapp Co., § 1163.

§ 1137. A bill to set aside a conveyance as fraudulent may allege either that the conveyance was without consideration, or that plaintiff has offered to return the consideration, or that plaintiff is ignorant whether or not there was a consideration, and that this fact was known to defendant; but the allegations must be harmonious, and must not charge lack of consideration and inadequacy at the same time. Railroad Co. v. Alley, §§ 1164–65.

§ 1138. Such a bill, if resting on the ground of inadequacy, should state the value of the property specifically and not doubtfully. Ibid.

§ 1139. A bill to charge shareholders in an insolvent corporation must show by averments all the facts necessary to make them liable under the law. United States v. Globe Works, SS 1166-68.

§ 1140. A bill is demurrable which joins a party as defendant without showing how he is liable or is interested as a party. Ibid.

§ 1141. A bill in equity against the holder of a bill to enjoin a judgment obtained thereon, and alleging that the holder had already been paid by the drawer, need not make the latter a party to the suit. Atkins v. Dick, §§ 1169-72.

§ 1142. An allegation that the note was fully paid is sufficient, without giving the details of the method of payment. Ibid.

§ 1143. When a case is removed by defendant from a state to a federal court and an amended complaint is then filed, the jurisdiction of the court is not lost by the omission of the amended complaint to aver the citizenship of the parties. Briges v. Sperry, §§ 1173–75. § 1144. When a bill is filed for the dissolution of a partnership and the sale of the partnership property, and a decree for that purpose is rendered, the decree may be sustained on appeal by treating the bill as if it were a bill for partition, provided sufficient allegations for that purpose are contained therein. Ibid.

§ 1145. The rule as to multifariousness is founded on convenience to defendants, and forbids the joining of distinct matters in one bill, whether against one or many defendants. In each case it is a question of fact and the test is whether one defense may be made to the whole bill. Gamewell Fire Alarm Telegraph Co. v. Chillicothe, § 1176-78.

§ 1146. A bill is not multifarious which is based on several letters patent, when all the inventions therein secured are set out as constituting one machine, the use of which makes the cause of action. Ibid.

§ 1147. No universal rule as to multifariousness can be given, each case necessarily depending on its own circumstances. Sheldon v. Keokuk Northern Line Packet Co., §§ 1179–84. § 1148. A bill is not multifarious in which separate judgment creditors unite in assailing transactions of their common debtor, by which he has concealed all of his property from them. Ibid.

§ 1149. If the question of laches can ever be raised in a suit where the statute of limitation applies, a demurrer insisting upon the lapse of time short of the statutory period should not be sustained unless the bill itself makes out a clear case of unreasonable delay. Ibid.

§ 1150. If consistent with the bill that the fraud charged was not discovered until some time after it was committed, the court will not assume unreasonable delay, after discovery, from the fact that suit was not brought until several years after the fraud. Ibid.

§ 1151. It will not be assumed on demurrer that the fraud charged was discovered more than six years previous to bringing suit merely because the bill does not allege the contrary. Ibid.

§ 1152. Multifariousness is the improperly joining in one bill distinct and independent matters and thereby confounding them. There is no inflexible rule as to what constitutes multifariousness and permits the joinder of questions to a certain extent distinct, when it can be done without inconvenience. Stafford National Bank v. Sprague, §§ 1185-86.

§ 1153. A bill is not necessarily multifarious which is brought to foreclose a judgment lien on certain land, and also to set aside a prior deed of the same land. Ibid.

§ 1154. It is not true, as a general proposition, that where there is a joinder of distinct