Degraffinreid v. Mays ( 1834 )

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.