CHAPTER VI. OF OYER. Profert in curia. How oyer given. In actions upon instruments under seal, as a bond, &c., it is generally necessary to make a profert in curia of the instrument, or to allege an excuse for not doing so :1 and in all cases where the plaintiff necessarily makes a profert, the defendant may have oyer. So likewise if the defendant in his plea make a necessary profert of any deed, &c., the plaintiff is entitled to oyer.4 Unless there have been a profert, however, oyer cannot be prayed; and therefore if a deed be pleaded without a profert, the other party should demur specially for the want of it, particularly if it be essential to his plea, &c., that the deed should be set forth.5 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 ; and it is accordingly supposed to be read in 1 1 Com. Dig. Pleader, O. 1, 2, 3. 22 Salk. 597. 1 Saund. 9. b. 1 Tidd. Pract. 635. 6 Mod. to 5 2 Archbd. Pract. 216. Craving oyer of a bond, &c., is hear it read; the generality of defendants in the times of ancient simplicity being supposed incapable to read it themselves, 3 Black. Com. 299. 712 Mod. 598. 3 Salk. 119. court, and is so entered upon the record. In practice, however, oyer is now usually demanded and granted by the attornies; and in general, copies of the instrument are filed and served with the declaration, without any formal demand of oyer. It is in some cases absolutely necessary that the defendant should crave oyer, and set forth the deed upon the record; as for instance, where he pleads performance of a condition or covenant,1o or demurs to a declaration for a variance from the instrument on which it is founded. be dispensed court. 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." And where the defendant is enti- Oyer cannot tled to have oyer of a deed, it cannot be dispensed with by the with by court, nor can he be compelled to plead without it, nor will the plaintiff at the trial be allowed to give secondary evidence of its execution and contents, even though the deed be lost:12 for in such case the plaintiff, instead of making profert, ought to have alleged that the deed was lost, and thus have excused himself from producing it;13 though he still will be allowed to amend his declaration.11 Where the deed is in the hands of a the variance; the circuit judge re- 19 How demand made. In what time oyer must be to plead. third person, the court will oblige him to give oyer, and produce it at the trial.15 The demand of oyer is a kind of plea,16 and should regularly be made by a note in writing, before the time for pleading is expired;1 if made afterwards, the demand is a nullity.18 Though oyer be not in strictness demandable, yet if it be given, the party demanding has a right to make use of it:19 but a profert will not entitle to oyer, where otherwise it would not be demandable.20 If the defendant would insist upon his demand of oyer, he should move the court to have it entered upon the record;21 and on the other hand, if the plaintiff would contest the oyer, he may either counterplead it, or strike out the rest of the pleading and demur;22 upon which the judgment of the court is, either that the defendant have oyer, or that he answer without it.23 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 e converso.24 There is no settled time prescribed for the plaintiff to give given; time oyer 25 but the defendant in all cases has the same time to plead after the delivery of oyer, that he had when he demanded it.26 The time allowed the defendant, to give oyer to the plaintiff, according to the English practice, is two days exclusive after it is demanded;27 and if it be not given in that time, the plaintiff may sign judgment as for want of a plea.28 15 Com. Dig. Pleader, P. 1. 17 Com. Dig. Pleader, E. 2. 19 Doug. 476, 7. et vide 1 Saund. 23 2 Lev. 142. 24 2 Salk. 497. 6 Mod. 28. 2Ld. Raym. 970. 1 Wils. 16. 1 Saund. 9. b. 2 Saund. 46. n. 7. 25 2 Tidd. Pract. 637. and n. i. 26 14 Johns. Rep. 328. 8 Term 20 1 Saund. 9. b. Salk. 497. Rep. 356. et vide 8 Cowen. Rep. Where oyer has been demanded, and given, but different from the deed as set forth in the declaration, and the defendant pleads non est factum, the plaintiff cannot, on serving a new oyer, setting forth the instrument correctly, after the expiration of twenty days, enter judgment by default.29 But if correct oyer has once been given, and the plaintiff afterwards amends his declaration, it is not necessary to serve new oyer with the amended declaration.30 81 33 tween decla oyer, &c. If there be a variance between the declaration and the oyer, Variance bethe defendant may demur specially on that ground; but he ration and cannot take advantage of it at the trial. But of a variance between the deed and oyer,2 or the deed and the declaration, he may take advantage at the trial, under the plea of non est factum. If, however, the defendant plead without calling on the plaintiff to set forth the attestation and names of the witnesses in the oyer, it is a waiver of the objection, that they were not given.34 And if the variance be such as could be When variamended by the court after verdict, it will be disregarded on the disregarded. trial, unless it be calculated to surprise and mislead the adverse party.35 ance may be original writ. The defendant was formerly allowed oyer of the original No oyer of writ, in order to demur or plead in abatement for any apparent insufficiency or variance.36 But this indulgence having been abused, and made an instrument of delay, it has been settled in the king's bench, that the defendant shall not be allowed oyer of an original writ; and that if he demand it, the plaintiff may proceed as if no demand had been made.37 Bond and condition distinct. A bond, and the condition of a bond, are considered as distinct, the bond being complete without the condition; therefore there may be oyer of the one without any of the other; and praying oyer of the one does not entitle the party to oyer of the other, but it must be demanded of both if wanted.$8 If the defendant, after craving oyer of a deed, do not set forth the whole of it, the plaintiff may sign judgment as for want of a plea;39 but he cannot demur for that cause: .40 or if the defendant in his plea set out the deed untruly, the plaintiff, by his replication, may pray that it be enrolled, and so procure it to be truly set forth." But if the defendant only crave oyer of the bond, he is not bound to set out the condition, although the plaintiff has given him oyer of it.42 38 1 Saund. 9. b. 289. n. 2. Com. Dig. Pleader, P. 1. 1 Gallison, 87. 39 4 Term Rep. 370. 5 Term Rep. 662, 663. 40 2 Salk. 602. 41 Com. Dig. Pleader, P. 1. 1 Gallison, 86, 7. 42 1 Saund. 289. n. 2. |