OYER, pleading. Oyer is a French word signifying to hear; in pleading it is a prayer or petition to the court, that the party may hear read to him the deed, &c., stated in the pleadings of the opposite party, aud which deed is by intendment of law in court, when it is pleaded with a profert.
2. The origin of this form of pleading, we are told, is that the generality of defendants, in ancient times, were themselves incapable of reading. 3 Bl. Com. 299.
3. Oyer is, in some cases demandable of right, and in others it is not. It may be demanded of any speciality or other written instrument, as bonds of all sorts, deeds poll, indentures, letters testamentary, and of administration, and the like, of which a profert in curiam is necessarily made by the adverse party. But if the party be not bound to plead the specialty or instrument with a profert, and he pleads it with one, it is but surplusage, and the court will not compel him to give oyer of it. 1 Salk. 497. Oyer is not now demandable of the writ, and if it be demanded, the plaintiff may proceed as if no such demand were made. Dougl. 227; 3 B. & P. 398; 1 B.& P. 646, n. b. Nor is oyer demandable of a record, yet if a judgment or other record be pleaded in its own court, the party pleading it must give a notice in writing of the term and number roll whereon such judgment or matter of record is entered or filed in default of which the plea is not to be received. Tidd's Pr. 529.
4. To deny over when it ought to be granted is error; and in such case the party making the claim, should move. the court to have it entered on record, which is in the nature of a plea, and the plaintiff may counterplead the right of oyer, or strike out the rest of the pleading, following the oyer, and demur; 1 Saund. 9 b, n. 1; Bac. Abr. Pleas, 1; upon which the judgment of the court is either that the defendant have oyer, or that he answer without it. Id. ibid.; 2 Lev. 142; 6 Mod. 28. On the latter judgment, the defendant may bring a writ of error, for to deny oyer when it ought to be granted, is error, but not e converso. Id. ibid.; 1 Blackf. R. 126. See, in general, 1 Saund. 9, n. 1; 289, in. 2; 2. Saund. 9, n. 12, 13; 46, n. 7; 366, n. 1; 405, n. 1; 410, n. 2; Tidd's Pr. 8 ed. 635 to 638, and index, tit. Oyer; 1 Chit. Pl. 369 to 375; Lawes on Civ. Pl. 96 to 101; 16 Vin. Ab. 157; Bac. Abr. Pleas, &c., I 12, n. 2; Arch. Civ. Pl. 185; 1 Sell. Pr. 260; Doct. Pl, 344; Com. Dig. Pleader, P Abatement, I 22; 1 Blackf. R. 241, 3 Bouv. Inst. n. 2890.