Van Rensselaer v. Saunders ( 1846 )

Bbonson, Chief Justice.

Without showing that the plaintiffs made profert of the indentures, there is no foundation for the motion; for oyer can only be demanded when a deed is pleaded with profert. The remedy for want of profert, where it should be made, is a demurrer. We cannot presume profert, because it may have been omitted, either improperly or upon a sufficient excuse; and it is, moreover, a general rule, that the party who moves must make out a prima facie case before his adversary is bound to answer. Motion denied.