Polk v. Mitchell — 1 Del. 433

Majority

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JOHN POLK, assignee of the FARMERS’ and MECHANICS’ BANK vs. THEODORE MITCHELL, Adm’r. d. b. n. of MANAAN BULL, dec’d.

Headnote

On oyer prayed and granted, the deft, is entitled to a copy of the deed; and the cow will stay proceedings, until it is furnished.

Deed pleaded with pr"fert Oyer prayed and granted. Replication denying performance of covenants, without setting out the deed: Adjudged bad for this cause..

The prayer and grant of oyer does not make the deed a part of the record. It is obligatory on the party who would take advantage of it, to set it out.

If the plff. omits to aver performance of a condition precedent in his narr the deft, should set the deed ou' on oyer and demur

After argument on demurrer, and the opinion pronounced, the court refused to let the deft, plead over.

Debt on bond. Narr., Rule, Plea, &c.

“The deft, craves oyer of the writing obligatory and the condition afs’d., and of the said pretended assignment thereof.” Notice given and copy demanded. Oyer of the said writing obligatory and condition thereof and assignment, had by the deft., and copy refused by the plaintiff; and thereupon the said Theodore Mitchell, adm’r. &c. by &c. prays the court to have the said writing obigatory and the condition thereof, and the said pretended assignment, so as afs’d. stated in said plaintiff’s declaration, entered on the record.

These pleadings took plan in vacation, and—

Mr. Layton

now moved the court to order an enrolment.

The question is, whether on a prayer and grant of oyer, we are entitled to a copy. The prayer of oyer does not spread the deed upon the record, (Easton vs. Jones; supreme court, N. C. C.^[1]

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nor can we avail ourselves of any defects in the deed itself, or in the manner of pleading it, unless we can place the whole deed on the record. We wish to set it out in our plea, and a copy is necessary for that purpose. Without a copy or enrolment, the grant of oyer is of no

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use to us. (2 Salk. 497) A copy must be delivered to the deft, if demanded, on oyer prayeéí, 1 Sellon’s Practice, 261, 264; 1 Saund. Pep. 9.

Wootten for pl’tff.

The first demand in this case was of oyer

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simply. This was granted. The def’dt. had the bond and read it. He then demanded that I should set out a copy of it on the record; this I refused, because I considered it irregular.

The court ordered a copy to be furnished the def’dt. at his own

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expense, and said they would stay proceedings in the cause, until it was made out, or otherwise compel the plff. to furnish it. The deft, must necessarily have a copy, to enable him to plead; for if he sets the bond out in his plea, he must do so correctly, or the plff.

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may pray an enrolment and demur. The present prayer for an enrolment, does not come at a proper time, nor from the proper party; but the court will direct a copy to be given, which is all the „

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def’dt. needs to enable him to plead. He may then place the bond on record or not, as he pleases.

Wootten, for plaintiff.

Layton, for defendant.