court, and a copy would, therefore, most properly come from the clerk.1 At what time oyer must be granted. The plaintiff is not bound according to the English practice, to grant oyer within any limited time after it has been demanded; but it is for his interest to grant it without delay, the defendant being entitled to as many days for pleading, after oyer has been given, as he had when he demanded it. But if the plaintiff demand oyer of the defendant, the latter must grant it within two days, exclusive of that on which it is demanded, Sunday not being reckoned, if it be the last of the two; otherwise, in our practice, the defendant will be defaulted.1 - Effect of oyer in various cases, and duty of party claiming it. If there be a variance between the declaration and the oyer, the defendant may demur specially on that ground; but he cannot take advantage of it at the trial. But of a variance between the deed and oyer, or between the deed and declaration, he may take advantage, under the plea of non est factum. And if an imperfect oyer be given, the defect is cured by pleading over. A small variance between the oyer of a bond and a declaration, is not regarded; as where in the oyer, the words "or delay," and in the declaration they were, 6 1 Vide Vin. Abr. tit. Faits. M. a. 12. 22 Arch. Pract. 217. 3 Webber v. Austin, 8 Term. Rep. 356. 1 Arch. Pract. 130. 42 Arch. Pract. 217. James v. Walruth, 8 Johns. Rep. 410. Waugh & ux. v. Bussell, 5 Taunt. Rep. 707. Howell v. Richards, 11 East. Rep. 633. Goldie v. Shuttlesworth, 1 Camp. Rep. 70. were, "or other delay," the variance was held to be immaterial.1 2 After oyer is granted, it is optional with the party, whether to set it forth in his plea or not. But if he undertake to set it forth, and do not set it forth correctly, or omit to set forth the whole deed, the plaintiff may either sign judgment as for want of a plea, or he may pray that the deed be enrolled and demur.s But this must be understood as extending to cases only, where the whole deed relates to the matter of action; for if it contain other matters besides those which are to be performed by the party craving oyer, it seems to be unnecessary to set out the irrelevant matter, but it is sufficient for him to set out verbatim, the whole of the matters which relate to the case in issue.1 The party praying oyer of a deed, may afterwards omit to set it forth in his plea, and may plead the general issue, or any other plea to the merits, as if oyer had not been prayed.5 If the party craving oyer of a deed, do not afterwards set it forth in his plea, the other party, in his replication, &c. may, if he wish to have it set out, pray that the deed be enrolled, and then set it forth, or, at least, such parts of it, as relate to the matter in dispute. Praying oyer of a bond, does not entitle the party Henry v. Brown, 19 Johns. Rep. 49. * Weaver's Company, q. t. v. Forrest et al. 2 Stra. Rep. 1241. 3 Wallace v. Cumberland, 4 Term. Rep. 370. Com. Dig. tit. Pleader, P. 1. 4 Ibid. 1 Saund. 317. note 2. 2 Arch. Pract. 218. • Weaver's Company, q. t. v. Forrest et al. 2 Stra. Rep. 1241. Com. Dig. tit. Pleader, P. 1. to oyer of the condition, unless he prayed for that likewise; for they are considered as distinct instruments.1 The want of oyer of the condition of a bond, is fatal in a plea of performance,2 since the court can take no notice of the condition, unless the same be spread upon the record by oyer. 3 Inspection of instruments not under seal. As a party is not entitled to oyer of an instrument declared upon, which is not under seal, there was formerly no mode by which the plaintiff could be compelled to produce it, until the time of trial. A statute of the United States, gives to their courts, the power to compel the production of books and papers, or in case of refusal, to order a nonsuit or default. No such power resides in our courts. But courts of common law will not compel the defendant to plead, until a copy of the instrument, upon which the action is founded, has been delivered to him. According to the present practice, courts will, upon motion, order a copy of the instrument, on which the action is founded, whether it be a policy of insurance, bill of exchange, promissory note, or other special undertaking, whether alleged, or not, to be in writing, to be delivered to the other party or to his attorney. The rule laid down by Lord Mansfield is, that whenever the defendant would be entitled to a discovery in equity, he should have it, in a court of law." 1 Jevens v. Harridge, 1 Saund. 9 b. note 1. 2 United States v. Arthur et al. 5 Cranch. Rep. 257. 3 Stat. U. S. 1789. ch. 20. s. 15. * 2 Stark. Ev. 731. and the cases cited. So where the defendant has in his possession a paper essential to the plaintiff's case, an inspection of the same has been granted by the court; as in the case of an indenture, where only one has been executed; or as in the case of a partnership deed, in the possession of one of the partners.2 1 Underwood v. Miller et al. 1 Taunt. Rep. 387. CHAPTER VII. BRIEF STATEMENT OF FACTS. By Stat. 1792. ch. 41. it is enacted, that in all actions, wherein the defence intended to be set up by the defendant, is, or may be, that he was a justice of the peace, sheriff, deputy sheriff, or coroner, or a town, district, precinct, or parish officer, or some other officer, civil, or military; and that the act or thing for which he is sued, is any thing done by him, by virtue or in the execution of his office, the defendant may plead the general issue, and give the special matter in evidence, upon filing in the cause, a brief statement of such special matter of defence, within such time as the court shall order, of which statement the plaintiff shall be entitled to a copy; or he may plead specially at his election. Time of filing. The statute provides, that a brief statement of facts must be filed, “within such time, as the court shall order." It is presumed, that the same rules would be applied in this case, as in that of special pleas, for which, in fact, a brief statement, in the cases where it is allowed, is a substitute. The defendant should either file his brief statement, or give notice on the clerk's docket, or to the plaintiff, of his intention to do so, as in the case of pleading double. Should he fail to do so, the court would not permit the plaintiff to be surprised, by the filing of one afterwards, but would grant him one continuance at least. And if the defendant, after giving notice of |