pleading, was complied with by reading the instrument aloud CHAP. XIII. in open court. The demand is now complied with by exhibit- In general. ing, and, if required, (as is usually the case), by making out a copy of the instrument, (including the names of the witnesses by whom it was attested (e)), and delivering it to the opposite attorney(f), who must pay for it at the rate of 4d. per sheet (g). Where the plaintiff is an executor, and oyer is craved of the letters testamentary, of which profert is made, the will, as well as the letters testamentary, must be set out (h).. hands of third Party. If the deed, &c., be in the hands of a third person, the When in court, upon application, will by rule oblige him to give oyer of it, and produce it if necessary (i); but they will not dispense with the oyer by substituting a copy of the original or otherwise (k). Oyer. Refusal of Oyer.] To refuse oyer when it ought to be granted Refusal of is error(). In order to bring error, the party insisting upon oyer must enter his prayer upon record; and this being in the nature of a plea, the other party may either counterplead, or demur to it, and the court will thereupon give judgment (m); upon which judgment the writ of error may be brought. Error, however, does not lie for granting oyer where it is not demandable(n). It may be added that the court cannot dispense with or modify the right to oyer (0). after Oyer. Proceedings after Oyer.] After oyer is granted, it is optional Proceedings with the party whether he set it forth in his plea or not (p). If, however, he undertake to set it forth, and do not set forth the whole deed, or if he mis-recite it, the plaintiff may either sign judgment as for want of a plea (g), or he may pray that the deed be enrolled, and thereupon have it truly enrolled, and demur(r). But this must be understood as extending to cases only where the whole of the deed relates to the matter of action; for if it contain other matters besides those which are to be performed by the party craving oyer, it seems to be unnecessary to set out the irrelevant matter,-it is sufficient for him to set out verbatim the whole of the matters which relate to him (s); otherwise, in some cases, the record might run to an immoderate length(t). dant should If the declaration do not set out the deed accurately, and When Defenthe defendant intend taking advantage of it on account of a set out the variance, he should plead non est factum, without setting out Deed or not, (e) Longmore v. Rogers, Willes, 288: and see Cook v. Remington, 6 Mod. 237; 2 Salk. 498, S. C. (f) Page v. Divine, 2 T. R. 40. (g) R. T., 5 & 6 G. 2. (h) Daley v. Mahon, 6 Dowl. 395; 4 Bing. N. C. 235; 5 Scott, 606, S. C. (i) White v. Earl of Montgomery, 2 Str. 1198; 1 Sellon, 262. If the deed be in the possession of a court, as in the case of an administration bond, the course may be to apply for a mandamus to compel the production. (See 3 Bing. N. C. 789). (k) Archbishop of Canterbury v. Tubb, 3 Bing. N. C. 789; 5 Dowl. 627. S. C. Longvill v. Hundred of Thistleworth, 6 Mod. 128: Soresby v. Sparrow, 2 Str. 1186; 1 Wils. 16, S. C. (m) Mayor of London v. Gorrey, 2 Lev. 142: Langavil v. Hundred of Isleworth, 2 Salk. 498; 2 Ld. Raym. 969, S. C. (n) 1 Saund. 9 b; 2 Id. 46 b. (0) Archbishop of Canterbury v. Tubb, 3 Bing. N. C. 789; 5 Dowl. 527, S. C. (p) Weavers' Company v. Forrest, 2 Str. 1241. (9) Wallace v. Duchess of Cumberland, 4 T. R. 370: Cole v. Hulme, 3 M. & R. 86, n. (r) Com. Dig., Pleader, P. 1. And see Wallace v. Duchess of Cumberland, 4 T. R. 370, n. (8) Wallace v. Duchess of Cumberland, 4 T. R. 370; 1 Saund. 317, n. (2). (t) 1 Saund. 317, n. (2); and see I Saund. 9, 52: Cook v. Remington,6 Mod. 237. PART I. BOOK IV. the deed on oyer, or the variance would not be available on such a plea after setting out the deed (u). But if the deed, as set out, do not support the breach assigned, then the mode of taking advantage of the defect is by craving oyer of, and setting out the deed, and demurring (x). When Party who grants Oyer may set By R. H., 2 W. 4, r. 44, "If a defendant, after craving oyer of a deed, omit to insert it at the head of his plea, the out the Deed. plaintiff on making up the issue or demurrer-book may, if he think fit, insert it for him; but the costs of such insertion shall be in the discretion of the taxing-officer" (y). If the plaintiff craving oyer of a deed, &c., do not afterwards set it forth in his replication &c., the defendant, in his rejoinder, &c., may (if he wish to have it set forth) pray that the deed be enrolled, and then set it forth, or at least such parts of it as relate to the matters in dispute (z). (u) Waugh v. Russell, 5 Taunt. 707; 1 Marsh. 214, S. C.. and see Wilson v. Woodfries, 6 Moo. & Sc. 341: Snell v. Snell, 4 B. & C. 741: 7 D. & R. 249, S. C.: Ross v. Parker, 2 D. & R. 662; 1 B. & C. 358, S. C. (x) Anon., 3 Salk. 119: Longavil v. Hundred of Isleworth, 6 Mod. 27: Jeffery v. White, Doug. 476. (y) Such was formerly the practice of the Common Pleas (Barnes, 327); but the practice of the Queen's Bench was different, in which court the defendant might either set forth the oyer in his plea or not, at his election. (The Weavers' Company v. Forrest, 2 Str. 1241: Symmonds v. Parmenter, 1 Wils. 97; Tidd, 9th ed. 589). (2) Com. Dig., Pleader, P. 1. CHAPTER XIV. INSPECTION AND COPIES, &c., OF INSTRUMENTS. CHAP. XIV. Instruments dant. WHERE a plaintiff declares upon a written instrument In what Cases not under seal, or where the action is founded upon such an Inspection of instrument (a), the defendant may, in general, have a copy of will be grant it, by taking out a summons before a judge at chambers, who ed to Defenwill thereupon make an order that a copy of the instrument in question be forthwith delivered to the defendant or his attorney, and that all proceedings in the action be stayed in the meantime (b). This is analogous to oyer of deeds &c. (ante, 1019). Also, in policy causes, a judge at chambers will make an order for the assured to produce to the underwriters, upon affidavit, all papers in his possession relative to the matters at issue (c). And in an action for general average the defendant is entitled to inspect the statement of the general average, but not the document from which it is drawn up (d). In other cases, the plaintiff has been even ordered to produce his books at the trial(e); and Lord Mansfield is said to have laid it down as a rule, that, whenever a defendant would be entitled to a discovery, he should have it here, without going into equity (ƒ). The court or a judge, however, will not at present interfere to this extent (g), unless, perhaps, in insurance causes, as above mentioned, or there be some good reasons why inspection should not be granted; and therefore, in an action to try the title to land, the court refused a rule to compel the plaintiff, or his landlord, to permit the defendant to inspect or take a copy of one of the landlord's title deeds to the estate (h). But if it appear that a discovery is necessary to the defence, they will give the defendant a further time to plead, to enable him in the meantime to obtain the discovery by a bill in equity (i). Where only one part of an instrument exists, a party has no right to an inspection and copy, unless the person who has it in his hands holds it for the benefit of both, or can be considered as a trustee for the party seeking the copy (k). The court have refused to compel the plaintiff to give, or allow defendant to take, a copy of an agreement, to enable him to plead in abatement, that the agreement was signed jointly by (a) Charnock v. Lumley, 5 Scott, 438. (b) Tidd, 589, 591: Imp. B. R. 286: Threlfall v. Webster, 7 Moore, 559; 1 Bing. 161, S. C.: Blogg v. Kent, 6 Bing. 614; 4 Moo. & P. 433, S. C.: Suister v. Coell, 1 Sid. 386: Whittaker v. Izod, 2 Taunt. 114. The court will not always stay the proceedings. (Charnock v. Lumley, 5 Scott, 438). (e) Goldsmidt v. Maryatt, 1 Camp. 562: 19 G. 2, c. 37, s. 6. (d) Tunzell v. Allen, 7 Dowl. 496. (e) Goater v. Nunneley, 2 Str. 1130: but see Whitter v. Cazelet, 2 T. R. 683. (f) Tidd, 9th ed. 591. (g) See Whitter v. Cazalet, 2 T. R. 683. (h) Pickering v. Noyes, 1 B. & C. 262; BOOK IV. In what Cases it will be granted to Plaintiff. himself and others (1). In an action for freight and demurrage by shipowners against the charterer, the Court of Common Pleas would not grant the latter an inspection of the logbook kept during the voyage, the defendant not stating the facts and reasons why he required it (m). In an action on an instrument, of which plaintiff is not bound to make profert, the court will not compel him to grant an inspection of it on the ground that the defendant suspects it to have been forged (n), or on a forged stamp (o). In an action on a bill of exchange, the defence being that the defendant was liable only as surety, and that time had been given to the principal, the defendant was held not to be entitled to the inspection of a deed in the plaintiff's possession, by which, as it was alleged, time had been given to the principal, to which the defendant was not a party (p). And it seems that, in general, an inspection will not be granted, unless where the party applying is a party to the deed, or the other party holds it as his agent or trustee. Also, where the defendant is possessed of any written instrument, of which it is material that the plaintiff should have inspection, a judge at chambers, under particular circumstances, will order that the plaintiff may have leave to inspect it; that the defendant shall give him a copy of it at his (the plaintiff's) expense; and that the defendant shall produce it at the trial, if called upon to do so (g); or that he shall produce it to the plaintiff's attorney, in order that he may ascertain the names of the witnesses so as to subpoena them (†). But in another case, the court said they would not compel the defendant to produce the deed at the trial(s). In a recent case, in an action against the marshal for an escape, the court compelled him or his officer to permit the plaintiff to inspect the writ of habeas corpus and return, and the committitur indorsed thereon (t). And in a later case, the assignee of a bankrupt was compelled to allow an inspection of the partnership books, in an action on a contract entered into with the bankrupt (u). In an action against a sworn broker of London for negligence in making a contract, the court, on motion, compelled him to produce his books, to enable the plaintiff to inspect and take a copy of the contract (x). But in an action for goods sold and delivered, the court would not compel a defendant to allow an inspection of the goods, to enable the plaintiff to give evidence of their identity (y). Nor would the court order inspection of a writ in the hands of the sheriff, in (1) Neale v. Bird, 2 D. & R. 419. (m) Rundle v. Beaumont, 1 Moo. & P. 396; 4 Bing. 537, S. C. (n) See Hilliard v. Smith, 8 Moore, 586: (0) Chetwind v. Marnell, 1 B. & P. 271. 386: Bateman v. Phillips, 4 Id. 157, 161: King v. King, Id. 666. (r) Anon., 2 Chit. Rep. 230; 2 Camp. 95, n. (8) Doe v. Slight, 1 Dowl. 163. (t) For v. Jones, 7 B. & C. 732; M. & R. 570, S. C.: see Cooper v. Jones, 2 Moo. & Sc. 202. (u) Whitbourne v. Pettifer, 4 Moo. & Sc. 182. (x) Browning v. Alwyn, 7 B. & C. 204: but see Rowe v. Howden, 1 Moo. & P. 334; 4 Bing. 539, S. C. (y) Bell v. Taylor, 6 D. & R. 388: see Croft v. Peach, 1 Hodg. 110. order to enable the plaintiff to bring an action against him (2). CHAP. XIV. The Court of Common Pleas have refused to a plaintiff in replevin, inspection of a deed in the avowant's possession, which conveyed to the avowant the reversion of the demised premises (a). In that court, where two parts of an indenture were executed by both parties, each keeping one, and one part was lost, the court would not compel the other party to produce his part, in order to support an action against him on the instrument (b). So where two parts of an agreement were interchangeably executed between landlord and tenant; in an action upon the agreement by a purchaser of the premises, the court refused to compel the tenant to produce his part to be stamped, unless such purchaser had applied to the vendor, or used every endeavour, without success, to find him(c). A new trial having been granted, the court allowed the plaintiff to have the inspection of a deed read in evidence by the defendant at the first trial, but not of a deed produced there but not read(d). Where a deed was taken from the plaintiff under a criminal warrant, the court ordered him to be supplied with a copy to declare upon (e). In policy causes, where the plaintiff consents to enter into a In Policy consolidation rule, terms are generally imposed on the defend- Causes. ant to produce all books and papers material to the point in issue. Affidavit Where a defendant makes an affidavit identifying a docu- of Document ment exhibited to him only, and not filed, he will be compelled referred to in to allow the plaintiff to take a copy of that document, although filed. it is sworn to contain a defence to the action (g). for purpose of A party may, also, in general, on application to a judge, get Compelling an order on the opposite party to produce a deed before the Production commissioners of the stamp office to be stamped (h). And in Stamping. a late case, where the defendant had surreptitiously obtained possession of an unstamped instrument executed by himself and the plaintiff, (thereby preventing the plaintiff from affixing a stamp, as he had intended, within twenty-one days after execution), and then swore that he had lost the agreement; the Court of Common Pleas ordered that he should produce a copy in his possession to the plaintiff; and that, if the plaintiff produced that copy stamped at the trial, the defendant should be precluded from producing the original (i). But the judge will not order the production where the instru (s) R. v. Sheriff of Chester, 1 Chit. R. 476- The proper way of proceeding would be to rule the sheriff to return the writ. (a) Brown v. Rose, 6 Taunt. 283; and see Rer v. The Sheriff of Chester, 1 Chit. Rep. 476: Davies v. Brown, 9 Moore, 178: Radcliffe v. Bleasby, 3 Bing. 148; 10 Moore, 523, S. C.: Rundle v. Beaumont, 4 Id. 537; 1 Moo. & P. 396, S. C.: Cocks v. Nash, 9 Bing. 723; 3 Moo, & Sc. 164, S. C. (b) Street v. Brown, 6 Taunt. 302; 1 Marsh, 610, 8. C.: Woodcock v. Worthing ton, 2 Y, & J. 4: Lord Portmore v. Goring, 4 Bing. 152; 12 Moore, 363, S. C. (c) Travis v. Collins, 2 C. & J. 625. (d) Hewitt v. Piggott, 7 Bing. 400; Moo. & P. 252; 1 Dowl. 219, S. C. (e) Harris v. Adrit, 2 Chit. 229. (g) Tebbutt v. Ambler, 7 Dowl. 674. (i) Bousefield v. Godfrey, 5 Bing. 418; |