
    J. A. Anderson et al. v. Allison, Anderson & Co.
    1. Practice aet> Pleadim. Profert. Demurrer. Oyer. The plaintiff is bound to make profert of, and to produce in Court, the notes declared on, having them in possession. But the omission to file them with the declaration, is not a matter that can be reached by demurrer, profert being made in proper form. If the plaintiff fails to file the notes, the defendant may ask to have his demand of oyer entered, and have the judgment of the Court whether he is bound to answer until the notes are filed.
    2. Same. Same. Same. Motion to take the demurrer from the file. If the defendant demurs because the notes are not filed, it being an improper defence, the plaintiff may move the Court to order the demurrer to be taken off the file, and to enter up judgment by default, for want of a defence to the action.
    PROM DAVIDSON.
    This cause was beard at the September Term, 1858, before Judge BAXTER; and judgment final, by default, entered against the defendants, from which they appealed.
    
      BRiEN & Cox, for the plaintiffs in error
    J. S. Bhien, for the defendants in error.
   McKinney, J.,

delivered the opinion of the Court.

There is no error in the judgment hy default rendered in this case. The plaintiffs’ declaration was filed at the appearance term. It makes profert, in the usual form, of the notes sued on; hut it seems that at the appearance term, an informal demurrer was placed in the file of papers, assigning as cause of demurrer, that the defendants had craved oyer of the notes declared on, and they had not been produced. At the following term of the Court, the plaintiffs’ counsel moved the Court to order the demurrer to he taken off the file, and to enter up judgment hy default, for want of any defence to the action, and the motion was made absolute.

It is true that, hy our law, the plaintiffs were hound to make profert of, and to produce in Court, the notes declared on — having them in possession. But the omission to file the notes with the declaration, was not a matter that could he reached by demurrer — profert being made in proper form.

If the plaintiffs failed to file the notes, the defendants might have asked ‘to have their demand of oyer entered; which would have operated in the nature of a plea, and upon which the judgment of the Court might have been demanded, whether or not the defendants were hound to answer without it. The demurrer, for the cause stated, was an absurd practice, and it was properly taken from the file.

The facts stated in the bill of exceptions, do not better the case for the defendants. We see that the notes, though not filed with the declaration, were, in fact, filed on a subsequent day of the appearance term, and notice thereof given to defendants’ attorney. We also see from the bill of exceptions, that, before judgment by default was entered, reasonable time was given the counsel of defendants to make defence. And, furthermore, it does not appear that the defendants have any substantial defence to the action;

Judgment affirmed.  