PROFERT IN CURIA, plead. Produces in court.
2. When the plaintiff declares on a deed, or the defendant pleads a
deed, and makes title under it, be must do it with a profert in curia, by
declaring that he "brings here into court, the said writing obligatory," or
other deed.
3. The object of this is to enable the court to inspect the instrument
pleaded, the construction and legal effect of which is matter of law, and to
entitle the adverse party to oyer of it; 10 Co. 92, b.; 1 Chit. Pl. 414; 1
Archb. Pr. 164; but one who pleads a deed of any kind, without making title
under it, is not bound to make profert of it. Gould on Pl. oh. 7, part 2,
Sec. 47. To the above rule that he who declares on, or pleads a deed, and
makes title under it, must make profert of it, there are several exceptions,
all of which are founded on the pleader's actual or presumed inability to
produce the instrument. A stranger to a deed, therefore, may in general
plead it, and make title under it, without profert. Com. Dig. Pleader, 0 8;
Cro. Jac. 217; Cro. Car. 441; Carth. 316. Also he who claims title by
operation of law, under a deed, to another, may plead the deed without
profert. Co. Litt. 225; Bac. Abr. Pleas, I 12; 5 Co. 75. When the deed is in
the hands of the opposite party, or destroyed by him, no profert need be
made; or when it has been lost or destroyed by time or casualty.
4. In all these cases, to excuse the want of a profert, the special
facts which bring the case within the exception, should be alleged in the
party's pleadings. Vide Gould, Pl. ch. 8, part 2; Lawes' Pl. 96; 1. Saund.
9, a, note.