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DISTRICT OF MASSACHUSETTS, TO WIT:
District Clerk's Office. BE it remembered, That on the fourteenth day of June, A. D. 1824, and in the forty-eighth year of the Independence of the United States of America, Nathan Dane, of the said district. hac deposited in this office the title of a book, the right whereof he claims as author, in the words following, to wit :
" A General Abridgment and Digest of American Law, with occasional Notes and Comments. By Nathan Dane, LL. D. Counsellor at Law. In right volumes. Vol. vi.”
In contormity to the act of the Congress of the United States, entitled, “ An act for the encour. agement of learning, by securing the copies of maps, charts, and books to the authors and proprietors of such copies, during the times therein mentioned ;" and also to an act, er Sitled, " An act, supplementary to an act, entitled, An aet for the encouragement of learning, by securing the copies of maps, charts, and books to the authors and proprietors of such copies, during the times therein mentioned, and extending the benefits thereof to the arts of designing, engraving, and etching historical and other prints."
JOHN W. DAVIS,
CERTAIN PLEADINGS.-OYER &c. &c.
AFTER the usual time for pleading in abatement, and before pleas in bar, there often intervene several pleas, which seem to have no particular place in a system of pleadings; as 1. Oyer of deeds : 2. Voucher: 3. Aid prayer: 4. Parol demurrer: 5. Cognizance claimed: 6. Tender, &c.: 7. Protestandoes : 8. Estoppels : 9. Averments, giving colour, &c.: 10. Notice and request: 11. Pleas since the last continuance. These several branches in pleading, may here be briefly considered in this order, or referred to.
Art. i. Oyer of deeds.
$1. In the cases of pleadings already stated, many rules and cases as to oyer, have been of course introduced; especially Ch. 164, in continuation with debt on bonds and records &c, a few cases only will here be added.
8 2. Though profert is made of a deed, it is no part of 4 Dallas, 436. the record, if oyer be not prayed of the deed. Bender o. Fromberger.
8 3. A declaration, with oyer, was served, and the declara: 1 Johns. Cas. tion was amended, a copy of the amended declaration served ; 415, Lifferts
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 d. Raym. $ 4. Held, a record may be pleaded without a profert, 352, Groin.
: and so one may not have oyer of it. If one be convicted of velt v. Burril. 4 D. & E.371,
1 felony or treason, one cannot have a copy of the conviction, Ferguson i.' but by the attorney-general's leave. 2 Caines' R. 176, as to Mackreth. oyer.
§ 5. In deht on bond, the deft. after craving oyer, and setting 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 deinur
red. Court ordered all the pleadings to be struck out. The 1D. & E.149. plt. had judgment; and the deft's. attorney was ordered to
pay all costs. 2 Salk. 497 $ 6. Oyer of a record is never granted, and oyer is not Morris' case.
. given on profert, unnecessarily made. 1 Ld. Raym. $ 7. The deft. pleaded another action pending in the 347, Theo bald v. Long. Same
c. 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. 1 Salk. 215, $ 3. Non est factum pleaded and found against the deed, Fitch v.
it may be kept in court; but otherwise, on a collateral issue. ud. Raym. $ 9. Oyer may be had of a recognizance, but is not grant83, Ward v. able of errors, after the term in which the declaration is Griffith. delivered ; but the court will, in some cases, grant it ex gratia
afterwards. 1 Salk. 215, § 10. In cases in which the writing is but evidence, and Hill v. Aland.
the action is not grounded on it, the deft. cannot have a copy. It may be craved “ of any specialty or written instrument, as bonds of all sorts, deeds poll, indentures, let
ters testamentary, of which profert is made.” 2 Stra. 828, $11. Where a prior recovery, in the same court, is pleadWiseman ed, oyer must be granted. By oyer, the bond is made part
of the declaration. 3 Cranch, 235. 2 Ld. Raym. $ 12. After the dest. has pleaded in abatement, he cannot 969, case of Longueville. have 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. ch,, § 13. The want of oyer of the condition of a bond in a 257, United
plea of performance, is fatal. Judgment is against him who commits the first error. 4 D. & E. 370.
§ 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, Art. 3. and the court will not compel him to give oyer of it; as of van letters patent, private statutes, &c.; yet if pleaded, may be 1 Salk.437.-taken as a part of the plea. 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,
§ 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 pray in aid of him who has the inheritance in remainder or re-version ; that is, that he shall be joined in the action, and help to defend the title; and the heir, though he has never been 3.D.& 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. § 3. Aid prayer, in what cases. It is a general rule, that,
I Com. D. aid may be prayed in all cases in which the inheritance 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.
therein.-2 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.
2 Bos. & P.. is pleaded; for then the title is not in question, as in the 336 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 :