Majority
p. 249*Stephen Van Rensselaer et al., executors, &c. agt. Charles Saunders. September Term, 1846.
Headnote
Oyer can only be demanded where a deed is pleaded with profert. The remedy for want of profert, where it should be made, is a demurrer.Where defendant moved for judgment of non pros, on the ground that the plaintiffs had not delivered oyer of the sealed indentures, on which they declared, pursuant to demand by defendant; but defendant did not show that the plaintiffs made profert of the indentures in the declaration; held, that the court could not presume profert, because it might have been omitted, either improperly or upon a sufficient excuse; and besides, it is a general rule, that the party who moves must make out a prima facie case before his adversary is bound to answer.
Motion by defendant for judgment' of nonpros.
The defendant moved for judgment of non pros, on the ground that the plaintiffs had not delivered oyer of the sealed indentures on which they declared, pursuant to a demand by the defendant, The affidavit stated that the declaration was
p. 250
upon sealed indentures, and that oyer was long since demanded; but it was not stated that the plaintiffs made profert of the indentures in the declaration. Plaintiffs’ counsel said, that’ was a fatal objection to the motion.
S. Stevens, defendant's counsel.
Davis, W. & Davis, defendant's attorneys.
P. Caggeb, plaintiffs' counsel.
R. Chbistie, Je., plaintiffs' attorney.
Without showing that the plaintiffs made profert of the indentures, there is no foundation for the motion; for oyer can only be demanded when a deed is pleaded with profert. The remedy for want of profert, where it should be made, is a demurrer. We cannot presume profert, because it may have been omitted, either improperly or upon a sufficient excuse; and it is, moreover, a general rule, that the party who moves must make out a prima facie case before his adversary is bound to answer. Motion denied.