5. [T]o the Court * * * now here shewn; prays oyer. A plaintiff suing upon a...

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5. “[T]o the Court * * * now here shewn”; “prays oyer.” A plaintiff suing upon a deed or a bond made profert of the document that is, the plaintiff formally tendered it to the court, although it was strictly speaking not a part of the pleading. If defendant wanted to get the document in the pleadings in order to raise a question of law about it, she had to demand oyer of it, which meant that defendant was entitled to read it and copy as much of it as she chose into the plea. At this point you might conclude that if defendant demurred, she would be demurring to her own pleading, but even though the document was set out in the plea, it was treated as if it were a part of the declaration. See Sutton, Personal Actions at Common Law 103 (1929), which is a particularly valuable introduction to common law pleading.

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Civil Procedure Cases And Materials

ISBN: 9780314280169

11th Edition

Authors: Jack Friedenthal, Arthur Miller, John Sexton, Helen Hershkoff

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