Wheeler v. Miller

2 Denio 172

Opinion

By the Court, Bronson, Ch. J.

The excuse of the pleader for not making proferí of the deeds on which the action is founded is, that they were at the time of making them delivered into the possession of one Burroughs for the benefit of the parties. That is not enough. It should have been alleged, at the least, that the deeds still remained in the hands of Burroughs, and that the plaintiff could not produce them to the court. It is a good excuse for not making proferí that the deed has been destroyed, or is in the hands of the opposite party, so that the party pleading the deed cannot produce it. I am not aware that it has ever been held sufficient to say that the deed is in the hands of a third person. But I think that is enough, where the party adds that he cannot produce it. In White v. Montgomery, (2 St. 1198,) the bond on which the suit was brought was in the hands of a third person, and the court made an order that he should give oyer of th'. bond. But he was an attorney over whom the court could exercise summary authority. In this case the plaintiff may have no means of obtaining the agreement from Burroughs, until he can be required to produce it on a subpoena duces tecum. To say that the party cannot excuse the want of proferí in such a case, might amount to a denial of all remedy. For where proferí is properly made, oyer cannot be denied; and a demand of oyer would put an end to the plaintiff’s suit. But the plaintiff must amend, and either make proferí or give a more full excuse for omitting it.

Judgment for the defendant.