
    Degraffinreid vs. Mays.
    The failure to make profert of the note sued on, is cured by the defendant craving oyer of, and setting it out in his demurrer.
    Where the declaration does not show when the demand sued on fell due, and the defendant craves oyer, and sets out the note in his demurrer, the defect is cured.
    The plaintiff below declared in debt without making profert of the note sued upon; and in declaring he does not show the time when the note fell due. The defendant craved oyer of the note sued upon, which he had, and sets it out, by which it appears said note was due one day after date. Defendant then demurred specially, because there was no profert, and because there is no time stated in the declaration when the note fell due. To this demurrer there is a joinder by plaintiff, and upon argument of the demurrer, the same was overruled by the circuit court; and judgment for the plaintiff. From this judgment defendant appealed in error to this court.
    
      A. L. Martin, for plaintiff in error.
    
      A. Huntsman, for defendant in error.
   Peck, J.

delivered the opinion of the court.

The defect for which defendant demurs specially is in plaintiff’s not making profert of the writing obligatory. This was cured by the defendant’s craving oyer of the note, and setting it out in his demurrer; thereby he shows that he is not deprived of the advantage which the pro-fert was intended to give him. But supposing the demurrer well taken as to that, there might have been an amendment, because the declaration no makes profert of the writing.

As to the second objection, the declaration not showing when the demurrer fell due, this is cured by the oyer; for defendant, in setting out the note, makes the obligation so far a part of the declaration, and renders certain what otherwise remained uncertain. While a defendant is permitted to make the most of his defence, he must be held to his admissions, for it is then a part of the record. 1 Chit. Plead. 375. By the defendant admitting the note, and giving it form and language, the contract is as distinctly seen as if the plaintiff had put it in his declaration. The law of the case is rightly adjudged for the plaintiff below.

Judgment affirmed.  