Brown v. Jones

10 G. & J. 334

• Court: Court of Appeals of Maryland
• Decided: June 15, 1839
• Status: Published

Opinion

Stephen, J.,

delivered the opinion of the court.

Three questions for decision have been raised during the discussion of this cause.

To the plaintiff’s declaration a special demurrer was filed,, and the cause of demurrer alleged, was, the insufficiency of the profert of the letters of administration.

The profert is in these words: — “and the said John Jones brings here into court letters of administration on the personal estate of said Peter Earther unto him granted, whereby it sufficiently appears unto the court here, that he hath execution thereof.” In the declaration he alleges himself also to be the administrator of Peter Earther, as whose representative he instituted the action. We cannot under these circumstances think, that the demurrer was well taken. The profert of the letters of administration in construction of law placed them in the hands of the court of whom oyer is prayed, and not of the parly.

In 2 Harr. Sf Gill, 86, this court have .said, where a deed is pleaded with a profert hie in curia, the very deed itself is by intendment of law immediately in possession of the court, and therefore, when oyer is craved, it is of the court, and not of the party; and after oyer is craved, the deed becomes parcel of the record, and the court must judge upon the whole.” So Gould, in his pleadings, 438, says, “the practical use of a profert in pleading appears to be, that it enables the court to inspect the instrument pleaded, the construction and legal effect of which are matters of law, and entitle the adverse party to oyer of it.”

The court then in this case were sufficiently informed of the right of the party to sue, and that the letters were granted by the proper jurisdiction, by the inspection of them. The court below, therefore, did not err in their decision upon this point.

Another ground of objection raised to the judgment of the court below was, that the court permitted the record to be amended, by suffering the plaintiff to join in demurrer a term after the judgment had been entered. Without positively deciding this question, which it is unnecessary to do, we incline to think that, there is nothing in the objection. The joinder in demurrer is in the nature of a similiter in the case of an issue in fact, where the case is decided upon the demurrer. In Stephen on Plea. 78, it is said, the tender of the issue in law is necessarily accepted by the plaintiff, for he has no ground of objection either to the question itself, or the proposed mode of decision. “He is therefore obliged to accept or join in the issue in law; and does so by a set form of words, called joinder in demurrer.”

But we think that the third objection is fatal to the plaintiff’s right of recovery. Upon that point, (the 2nd point of. the appellant in his statement,) upon the authorities adduced, there seems to be no ground to doubt. It was essentially necessary to aver in the declaration, the value of the Pennsylvania money, for -which the suit was brought. Our courts cannot take notice judicially of the value of foreign coin; and therefore, where such a suit is brought for a foreign currency,, the value ought to be averred in the declaration, or the defect will be fatal on general demurrer, the office of which the special demurrer performed in this case, as well as that for which it was designed by the pleader. This principle of pleading, and the necessity for such an averment, were fully sustained by the authorities referred to in the course of the argument.. We therefore think that the judgment of the court below was erroneous, and ought to be reversed.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.