1 CH. 177. a new oyer not necessary to be delivered; the old oyer Art. 1. being deemed sufficient. Oyer is a French word, and means to hear. 1 Ld. Ravm. 352, Groinvelt v. Burril. 4 D. & E.371, Ferguson v. § 4. Held, a record may be pleaded without a profert, and so one may not have oyer of it. If one be convicted of felony or treason, one cannot have a copy of the conviction, but by the attorney-general's leave. 2 Caines' R. 176, as to oyer. § 5. In debt on bond, the deft. after craving oyer, and set ting it out truly, pleaded payment; and issue joined; and plt. gave notice of trial. The deft. returned the paper back, and set out a false oyer of the bond, and pleaded as before; upon which the plt. enrolled the true condition, and demurred. Court ordered all the pleadings to be struck out. The 1 D. & E. 149. plt. had judgment; and the deft's. attorney was ordered to pay all costs. 2 Salk. 497, Morris' case. 1 Ld. Raym. 347, Theo bald v. Long. 1 Salk. 215, Fitch v. Wells. 1 Ld. Raym. 83, Ward v. Griffith. 1 Salk. 215, Hill v. Aland. 2 Stra. 828, Hunter v. Wiseman. 2 Ld. Raym. 969, case of Longueville. 5 Cranch, 257, United States v, Arthur. 6. Oyer of a record is never granted, and oyer is not given on profert, unnecessarily made. § 7. The deft. pleaded another action pending in the same court for the same cause. Held, the plt. may pray oyer of the record, being in the same court; and if no oyer be given, the plt. may have judgment by default; for wherever a deed or record is pleaded, and oyer prayed, and oyer is not granted, the plea is no plea. § 8. Non est factum pleaded and found against the deed, it may be kept in court; but otherwise, on a collateral issue. § 9. Oyer may be had of a recognizance, but is not grantable of errors, after the term in which the declaration is delivered; but the court will, in some cases, grant it ex gratia afterwards. § 10. In cases in which the writing is but evidence, and the action is not grounded on it, the deft. cannot have a copy. It may It may be craved "of any specialty or written instrument, as bonds of all sorts, deeds poll, indentures, letters testamentary, of which profert is made." § 11. Where a prior recovery, in the same court, is pleaded, oyer must be granted. By oyer, the bond is made part of the declaration. 3 Cranch, 235. have §12. After the deft. has pleaded in abatement, he cannot oyer of the original; 2 Salk. 498: for having oyer of the writ, is to enable him to plead in abatement; and Holt said, that was done already. § 13. The want of oyer of the condition of a bond in a plea of performance, is fatal. Judgment is against him who commits the first error. 4 D. & E. 370. Art. 3. 14. If a party be not bound to plead an instrument, CH. 177. with a profert, but he pleads it with one, it is but surplusage, and the court will not compel him to give oyer of it; as of letters patent, private statutes, &c.; yet if pleaded, may be 1 Salk.437.taken as a part of the plea. Tidd, 529 ART. 2. Voucher. This branch in pleadings has been al- 1 D. & E. 149.-Dougl. ready largely considered in its natural connexion with 476. actions on covenants of warranty &c. in Ch. 124, art. 1 to 7. ART. 3. Aid prayer, 3 Bl. Com. § 1. Or praying in aid, is a dilatory part in pleading, and is not much in use in American practice; still, however, it is sometimes used, and therefore, it is proper to attend to the principles of aid prayer. It is in practice only in actions concerning real estates. By it, the tenant calls to his aid, or to help him plead, another person, because of the feebleness of the tenant's own estate. Tenant for life may 299. pray in aid of him who has the inheritance in remainder or reversion; that is, that he shall be joined in the action, and help to defend the title; and the heir, though he has never been 3D.& E. 782. in possession, or remainderman claiming under the same title, may be admitted to defend in ejectment; but not the devisee, who has not had possession: (on 11 Geo. II.) § 2. By this statute, joint-tenants and tenants in common 31 H. VIII. 1. may be compelled to make partition; and in it, it is provided, "that every of the joint-tenants or tenants in common, and their heirs, after such partition made, shall and may have aid of the other, or of their heirs, to the intent to deraign the warranty paramount, and to recover for the rate, as is used between co-parceners, after partition is made by the order of the common law." This statute has been adopted in Massachusetts as a part of our ancient common law. Even a tenant at will may pray in aid. 1 Com. D. 407. 1 Com. D. therein.-2 2 Bos. & P. § 3. Aid prayer, in what cases. It is a general rule, that aid may be prayed in all cases in which the inheritance 406.-1 Rol. comes in question, as in formedon, writ of entry, and all real 161, 193, and actions, except assize: so, in trespass or replevin, when the forms the title to the inheritance is disputed; but not where this Saund. 45, c. title to the inheritance does not come in question, by the Wms' Notes; pleadings, as in all personal actions where the general issue also, 45, d. is pleaded; for then the title is not in question, as in the case of intrusion, &c. where the action accrues by the deft's. own act or wrong; as in partition, wherein the inheritance is not demanded: so, where there is no privity; nor where the demandant claims under the deft. himself, or under the same title; nor one deft. of another; nor of the plt.; nor unless prayed the term the deft. pleads. Any tenant for life, may have aid of him in remainder or reversion, in fee, or in tail: 386. CH. 177. Art. 4. Rast. 27, a. Rast. En. 27. 384, 386.-2 so, may tenant at will, or for years: so, may a bailiff or ser vant, deft., have aid of his master, if his title come in question so, if the remainder be to A, for life, or in tail, remainder to B, in fee, the tenant for life or years, shall have aid of both; for both remainders begin together, and depend on one estate; but if the remainder in fee or in tail, be to the lessee, he shall not have aid of himself, but of the other remainders only: so, one parcener of another, if they claim by descent, and this after partition in law, or by construc tion, as well as on partition in deed; otherwise, one cannot have in value pro rata, if he loses in the action; and if the deft. have aid of one, and he dies, he shall have aid of his heir. If lessee for life, or years, pray aid, the lessor may join without process. §4. Counter plea. In praying aid, there is the plea, in which the plt. says, the deft. aid of the said A, ought not to have; because the said A did not demise to the deft., the tenements &c., as he alleges; and this he prays &c. In 2 Leo. 52, it is said, that if this plea be found for the plt., he has final judgment. Perhaps on the ground, aid prayer is a dilatory plea; and when the issue is tried by jury, the judg ment is final, on the principles before stated; the delay and trouble of a trial in abatement. § 5. So, tenant for life prayed aid of him in remainder, 2 Bos. & P. and the plt. counterpleaded, and said the deft. ought not to Saund. 46, c. pray aid of him, because he had nothing in the remainder; d, Williams' the deft. rejoined, and said, he held the lands for his life, the remainder thereof, after his death to the said, and his heirs &c.; hoc ponit &c. Notes. 3 Bl. Com. 300.-6 Co. 4.-It was unknown to -Not allow. ed in Virginia. ART. 4. Parol demurrer. § 1. This may be by the rules of law in many real actions, brought by or against a minor, under twenty-one years of age; either party may suggest the nonage of the inthe civil law. fant, and pray the proceedings may be stayed, or deferred until he be of full age. This plea is but little used in the United States, as the courts usually appoint some person to assist the minor in pleading and in managing his action, and delay is often prejudicial to him. This branch in pleadings has been already in part considered, in Ch. 124, a. 3, in connexion with voucher and counter-pleas thereto, and but little need be added here. § 2. If lands in fee descend on an infant, the parol shall demur in equity, as well as in law; but where a lease is made to a man and his heirs during three lives, the heir does not take by descent, but as special occupant; and the parol shall not demur; nor shall it in a writ of entry sur disseizin by the heir of the disseizee. Art. 6. § 3. But if an infant have the reversion, he shall have CH. 177. his age, if prayed in aid, by tenant for life; but not if sued in an action for his own wrong; nor in estrepment for waste; for it is in nature of trespass; nor in a writ of entry sur disseizin, against the heir of the disseizor. 1 Com. D. 584.-Co. L. 328.-2 Inst. § 4. Non sum informatus. The deft's. attorney pleads, in 380.-Inst. some cases, that he is not informed by the deft. of any an- 257. swer for him in the complaint &c. to be given. This plea 3 Inst. Cl. is very rarely, if ever, put in practice. 230. ART. 5. Cognizance claimed. This is where a certain 3 Bl. Com. court has cognizance of a matter, and the same is drawn in- 300, 301. to another court. The judge of such certain court may put in such claim of cognizance; and it must be claimed before any imparlance; for that is a submission to the jurisdiction of the court in which the suit is brought. This article is of considerable importance in England, where there are many courts claiming the cognizance, and often profitable cognizance of causes, under different ancient establishments; but in the United States, in which the courts are generally modern establishments, under the legislatures, and the distinctions of jurisdictions are well understood, and usually, a court derives no emolument by claiming cognizance of causes, but very few claims of this sort have ever existed; nor is it recollected, that it has been the practice of any court in the United States, having the proper cognizance of a cause, to claim it of its own accord; but when a suit, or process has been brought in a court not having the proper jurisdiction of it, the practice has been for the party thinking so, and objecting, to plead to the jurisdiction, in the manner already stated; and to remove the cause in this manner; that is, by defeating the action and driving the plt. into the proper court, or by removing the action by plea or petition, as is provided for by several statutes. ART. 6. Tender and bringing money into court. § 1. This is a very important branch in pleadings, and involves in it many nice distinctions; but need not here be pursued much further, as it has already been largely considered, in Ch. 144, in its natural connexion with pleas of performance, or of tender of performance; but more especially in Ch. 170, a. 1, to 15, in its natural connexion with pleadings in the action of debt; only a few cases will be added in this article, found or decided since Ch. 170 was written mainly. Pether v. § 2. When a tender is pleaded, the money must be paid 1 Stra. 638, into court, or the plt. may sign judgment; but this must be understood to be the rule in cases in which the tender does CH. 177. not discharge the debt or duty; as when that is discharged there is an end of the case. § 3. In debt on a bond, the deft. cannot plead non est 5 D. & E. 97, factum, and a tender as to part, where there is but one entire contract; for tender implies there was a contract. Jenkins v. § 4. In debt on a bond with a penalty, a tender is no bar to the action; but quære if according to the condition. 2 Johns. R. 24, Manney v. Harris. 8 Johns. R. 448,) the court cited, 3 D. & E. 683. -10 East, 101-5 Tyng, 67.Cro. El. 48, § 5. A, distrained B's horses and household goods, for C promised to deliver the goods to A, in six days, or Morse, (Root, pay $450, and the goods were left in C's possession. A, demanded the goods within the six days, but did not appoint any place at which they were to be delivered; and immediately after, and within the six days, went with C to B's house, where the goods were, and C then tendered the goods to A; he said he was not ready to receive them; but if C &c.-Co. L. would carry them to D, A would receive them; but C refused to do this. A brought assumpsit against C. Held, that A's reply to C's offer to deliver the goods to A, at B's house, dispensed with any further tender or delivery on C's part; especially as the articles were bulky and numerous. must resort to C, as his bailee of the goods. A acquired a property by distraining. 257, a -9 Co. 79, a. A 20 Ed. IV. 1. § 6. There is a difference in regard to tender, between things portable and things ponderous. If no place be appointed for performance or payment, a tender is good to the person that is to receive; and it is a good bar to an action on the contract; and the plt. must resort to the person possessing the goods, who will be viewed as holding them as the plt's. bailee, and at his risk. The delivery was collateral to the obligation. 5 Johns. R v. Galbraith. § 7. The deft. gave his promissory note to the plt. paya119, Newton ble in produce, to be delivered at the deft's. house on a day named. In assumpsit on this note, the deft. pleaded payment; and proved he, on the day, had hay in his barn, ready to be delivered to the plt.; but did not shew the quantity or value. Held, not to be evidence of a tender or payment. See Ch. 170, a. 14, s. 10. 2 Dall. 190, Sheredine v. Gaul. § 8. The Pennsylvania act of January 29, 1777, declared that a tender &c.; but a tender of bills emitted after January 29, 1777, had only the effect of a tender at common law; that is, only to suspend the interest after the tender and refusal. § 9. In legal strictness, a mere offer to pay is no tender, is the deft. entitled to avail himself of a tender, unless he pleads it, and brings the money into court. nor |