Pumphrey v. Coleman

Assumpsit on a promissory note. Special demurrer to the declaration because profert is not made of the note. Judgment in the Circuit Court for the plaintiff below, defendant in error. It is contended that, as the statute requires an •affidavit of the plea, before the plaintiff is obliged to prove the execution of the note (1), the defendant should have an opportunity to see the note, and should have a copy if he wishes it, before he is called upon to plead. The Court has no doubt of the correctness of this position; and if the plaintiff were not bound to produce an Instrument of writing on which suit is brought, except in cases where he makés profert, the objection to the declaration in the cause before us should be. sustained. Upon examining the books of practice it will he found, that profert is never made of writings not under seal; hut that after the appearance of the defendant, the Court will make an order on the plaintiff, in all cases when required, that the note or other writing declared on he produced for the inspection of the defendant; 'that a copy be delivered to him; and that all proceedings in the action he in the mean time stayed. 1 Tidd, 532. Our statute, .referred to by the plaintiff in error, requires no change of practice ; but only affords an additional reason for adhering to a well-known mode of proceeding, long since established.

The judgment is affirmed, with 1 per cent damages and costs.