II. APPEARANCE AND DE FENCE. name to that in the writ, whether in abatement or in bar, the statement of his appearance must not have been, "and the said C. D. comes, &c." but should be" and C. D. (the real name) against whom the said A. B. hath exhibited his said bill by the name of E. D. by his attorney comes and defends," &c. (o). In general the appearance might be stated to have been in person or by attorney, according to the fact (p), but in an action against a feme covert sued alone, it was essential to allege that she had appeared in person (q); and an infant must always have pleaded by guardian (795), and not by attorney or prochein ami (r); and this though he be sued with others in a representative character as administrator (s). Nor could common bail be filed for an infant under the statute, even when he was sued jointly with other defend[*462] ants (t). And in pleas to the jurisdiction, *the appearance must be stated to DEFENCE. have been in person (u). And though several attornies in partnership may be retained by the defendant, he can only plead by one, and not in the name of the firm (v), and therefore a plea should be in the name of that one attorney only who appeared (x). A defendant may plead in person to an information by the crown (y)• ̧ After the statement of the appearance follows that of the Defence, which has been defined to be the denial of the truth or validity of the complaint, and does not merely signify a justification. It is a general assertion that the plaintiff has no ground of action, and which assertion is afterwards extended and maintained in the body of the plea (z). This was so essential in pleading, that formerly if no defence were stated in the commencement of the plea, though the plea were in other respects sufficient, judgment was given against the defendant (a). In scire facias, however, no defence used to be stated (b); and it was not necessary in a plea of ancient demesne (c), or in a plea to the jurisdiction of an inferior Court having no jurisdiction of the matter, though it was otherwise when the plea related rather to the person than to the subjectmatter of the action (d). Where, however, an attorney of the Common Pleas was sued in the King's Bench, and pleaded his privilege without any com (y) 1 Tyr. 351. (z) 3 Bla. Com. 296; Co. Lit. 127 b; Yelv. 210. This denial is mere matter of form, for it is used, although the plea in the body of it, so far from denying the matters alleged in the declaration, confesses and avoids them. See Stephen, 2d edit. 480. The word " defends" in this place means denies the supposed wrong or injury. Asto defence in general, see the same references, and Bac. Ab. Pleas, D. and 8 T. R. 631; Steph. 2d ed. 478. (a) Co. Lit. 127 b; 3 Lev. 240; Bac. Ab. Pleas, D.; Willes, 41. But see Skin. 582. See Steph. 2d edit. 482, 483. (b) 3 Lev. 182. (c) Id.; Ld. Raym. 117. (795) Vide Mockey v. Grey, 2 Johns. Rep. 192. And if an infant he may bring a writ of error coram vobis to reverse the judgment. Johns. Rep. 460. {See Moore v. M'Ewen, 5 Scrg. & Rawle, 373. 1 Dall. 165. } defend by attorney, Dewitt . Post, 11 Silver v. Shelback, II. APPEARANCE AND DEFENCE. mencement of defence, it was held sufficient (e). Defence was of two descriptions, first, half defence, which was as follows, "venit et defendit vim et injuriam et dicet, &c." or secondly, full defence, "venit et defendit vim et injuriam quando, &c." (meaning "quando et ubi curia consideravit," or when and where it shall behove him), " et damna et quicquid quod ipse defendere debet et dicit," &c. (f). It was a maxim that the words "quando, &c." ought not to be added when only half defence was to be made, and that after the words "venit et defendit vim *et injuriam," the subject-matter of the plea should im- [463] mediately be stated (g). It had however of late become the practice in all cases whether half or full defence were intended, to state it as follows: "and the said C. D. by his attorney, comes and defends the wrong) or in trespass, 'force,') and injury, when, &c. and saith, that, &c." which would be considered as half defence in cases where such a defence should be made, but as full defence when the latter was necessary (h). If full defence were made expressly by the words, "when and where it shall behove him," and "the damages and whatever else he ought to defend," the defendant would be precluded to the jurisdiction or in abatement, for by defending when and where it shall behove him, the defendant acknowledges the jurisdiction of the Court, and by defending the damages he waives all exceptions to the person of the plaintiff' (i). Want of defence being only matter of form, the omission was aided on a general demurrer (k). Rule Hil. present The Reg. Gen. Hil. Term, 4 W. 4, reg. 10, orders that no formal defence The recent shall be required in a plea, and it shall be commenced as follows:-"The Pleading said defendant by his attorney (or in person,' &c.) says that, &c., so T. 4 W. 4, that the venit or comes is to be omitted.. And it has been observed that by r. 10, and this clause the distinction between whole defence and half defence is abolish- forms and ed (1), although formerly, and indeed in modern times, that distinction was practice. much insisted upon. It has been observed that although this recent pleading rule orders that every plea shall commence in the prescribed form, still that a slight variation, or the adoption of the ancient full formal defence, would not be any ground of demurrer, but at most would be the ground of summons or motion to strike out the part objected to as an unnecessary prolixity with costs (m). (e) 1 Salk. 30; Bac. Ab. Pleas, D. (ƒ) Co. Lit. 127 b; Bac. Ab. Pleas, D.; Rast, Ent. 652; Willes, 41; Gilb. C. P. 188; 8 T. R. 633. See the forms, 3 Bla. Com. Appendix, No. III.; post, vol. iii. (g) Gilb. C. P. 188; 8 T. R. 632; 3 B. & P. 9, n. a. (h) 8 T. R. 633; Willes, 41; 3 B. & P. 9; 2 Saund. 209 b, n. 1; Stephen on Pleading, 2d ed. 481. III. OTER (m). [*465] In what cases demandable. III. OF OYER. Oyer is a prayer or petition recited or entered in pleading (n), that the party may hear read to him the deed, &c. stated in the pleadings of the opposite party, and which deed is by intendment of law in Court when it is pleaded with a profert (o)(796). The statement of the prayer of oyer, and that the deed has been read to the defendant, (setting it out) used to follow the defence, and precede the entry of the imparlance, if any (p). But now it is to be stated immediately after the statement of the appearance. *It is a principle of pleading, that a party relying upon a deed, &c. either as the foundation of a cause of action, or as a ground of defence or answer to the pleading of his opponent, shall make a profert of the instrument, that is, produce it (nominally) in Court (q). But in alleging the deed the plaintiff need not in his pleading show more of it than answers his own immediate purpose; and even that part which he states may be set forth according to its legal purport or in substance. The obtaining oyer therefore becomes fre quently important, especially on the part of the defendant, not only to ascer tain the authenticity of the instrument, but also for the purpose of rendering available other parts of the deed which may restrict or explain that portion of the instrument which is shown in the adverse pleading. It is demandable by either party, whether plaintiff or defendant, and in every action, whether real, personal, or mixed, If the plaintiff in his declaration, or the defendant in his plea, have necessarily made a profert of any deed, probate, letters of administration, or other instrument under seal, the other party may pray oyer, which cannot in such case be refused by the Court (r). If the deed be lost or destroyed, the party, instead of making a profert thereof, should state the excuse for omitting it; and then the opponent, though he may traverse the truth of the excuse alleged, will be precluded from praying oyer (s). But if a profert be unnecessarily made, the defendant must plead without oyer (1); though if it be craved and given, he has a right to make use of it (u). The defendant cannot crave oyer except where profert has been made. Oyer was formerly allowed of (m) As to demanding oyer and form of demand, see 3 Chitty's, Gen. Prac. 618. (n) See the form, ante, 460, 461. At the present day oyer is demanded before the party pleads, by a note in writing addressed to the attorney of the party on the other side; and it is given by providing the party requiring it with a copy of the deed, &c. at his expense, showing him the original if desired, Tidd, 9th ed. 586; Stephen, 2d ed. 93, 94. (0) 3 Bla. Com. 299; 3 Salk, 119; 12 Mod. 598; Bac. Ab. Pleas, I. 12, 13; 1 Sid. 308, acc.; Lutw. 1644, contra. The practice relative to the demand of oyer has been so fully considered in the works referred to in this note, that it will be sufficient here to confine our attention to such points as relate to pleading. Tidd, 9th ed. 586; 1 Sel. 261, 285 to 291; 1 Saund. 9, and notes; Com. Dig. Pleader, P.; Steph, 2d ed. 92. (p) Ante, 460, 461. But see instances of oyer after imparlance, 1 Saund. 3, 289. (q) See as to the profert, ante, 398. (r) 2 Stra, 1186; 3 T. R. 151; Tidd, 9th ed. 587. (s) Ante, 239, 446. (t) 2 Salk. 497; 1 T. R. 149, 150; ante, 399. (u) Doug. 476; 1 Saund. 317, note 2; 9 a, note (d). (796) Where oyer of a deed pleaded with profert, is not prayed, no part of the deed will be noticed by the Court, but that which the plaintiff has declared on. Bender v. From❤ berger, 4 Dall, 131. the original writ, in order to demur or plead in abatement for any insufficiency 1. oyer. or variance between the writ and declaration; but that practice was altered by. rule of court, and if the defendant demand oyer of the writ, the plaintiff may proceed as if no such demand had been made (x). Oyer is not demandable of a record (y); nor of a recognizance (z); nor of a private act of parliament (a); nor of letters patent, though pleaded with a profert (b); nor of a writ of re-summons (c); nor of the precept or warrant of a justice of the peace (d). And oyer cannot be craved of an agreement, a note, or other instrument not under seal (e); nor of a demise to a stranger, where the party pleading it was neither party nor privy to it (f). As it cannot be granted of any deed, &c. which is not presumed to have been brought into Court (g), the defendant cannot, in an action upon a bond conditioned for the performance of covenants in another deed, crave oyer of such deed, but he, and not the plaintiff, must show it or the counterpart with a profert or an excuse for the omission; but it seems that the Court will compel the plaintiff to give the defendant a copy to enable him to plead, by granting the defendant time to plead until the copy be provided, or the defendant making an affidavit that he has no copy (h). In scire facias on a judgment on a deed, the defendant cannot demand oyer of the deed, for the scire facias is founded not on the deed, but on the judgment; if, however, oyer be improperly craved and granted, and the deed be stated upon it, the defect in the plea will be aided on a general demurrer (i). demanded. Though a party be entitled to crave oyer, yet he is not in general bound to When it do so (k). But in some cases it must be craved. Thus, if the defence be should be founded upon any objection to the form of the bond, as where a bail bond has been given to the sheriff, but not by his name of office, and the defect do not appear upon the face of the declaration, oyer must be craved, and after setting forth the bond, the defendant may demur (1)(797). And in an action at the suit of an administrator, the defendant should crave oyer, and set out the [*466] letters of administration, if he wish to avail himself of any variance in the statement of them in the declaration (m). The instances in which oyer should be demanded, if the defendant's contract be not truly stated in the (797) So, in debt on award, if it be mis-stated in the declaration, the defendant cannot take advantage of the error by pleading no award, but must crave oyer and demur. James v. Walruth, 8 Johns. Rep. 410. Ut semble. Sed quære; for an award under seal need not be pleaded with profert, and the insertion of a profert will not entitle to oyer. III. OTER declaration, will be hereafter considered (n). In pleading payment or per Refusing oyer. formance of the condition of a bond, if the condition be not set out in the If oyer be denied when it ought to be granted, the party making the claim should move the court to have the prayer of oyer entered on record, which entry is in the nature of a plea; and the plaintiff may counterplead the right to oyer, or strike out the rest of the pleading following the oyer and demur; upon which the judgment of the Court is, either that the defendant have oyer, or that he answer without it (r). On the latter judgment the defendant may bring a writ of error, for to deny oyer when it ought to be granted is error; but not è converso (s). How The oyer of a deed that has been altered by a stranger must be of the deed given. as originally drawn, and must be so set out in the pleading, or the variance [*467] will be fatal (t). If oyer of a bond *only be craved, the other party is not bound to give oyer of the condition, unless that be craved also (u). But if there be a condition or other matter indorsed on a deed, and which was indorsed before execution, oyer must be granted of the indorsement as well as of the deed (x). And a party craving oyer is entitled to a copy of the attestation and names of the witnesses (y). But, as before observed, on oyer of a bond and condition, the copy of a deed referred to in the condition need not be furnished (z). What ad Oyer having been granted, the defendant has, it seems, at least in the vantage to King's Bench (a), an election whether or not he will set forth the deed in his be taken of oyer, and the man tage. (n) Post, 467. (0) Com. Dig. Pleader, 2 V. 4; 2 Saund. ner of tak- 409, n. 2; 1 Id. 9 b, n. 1. In Lil. Prac. ing advan- Reg. Oyer, it is said that the defendant may plead, if he please, without oyer; for he may take upon himself to remember the bond without hearing it; but see Hutt. Rep. 33; 1 Keb. 513; 1 Saund. 317, note 2; Com. Dig. Pleader, 2 W. 33; Vin. Ab. Oyer, D. (P) See ante, 465; 1 Saund. 10, n. 1; (798) And the omission is fatal on a writ of error. United States v. Arthur and Patterson, 5 Cranch, 257. (799) Oyer of a deed of which profert is made in the first count of a declaration, does not make it part of the record so as to apply to the other counts. Hughes v. Moore, 7 Cranch, 176. |