5 N.H. 223 | Superior Court of New Hampshire | 1830
The first question is, whether a pro-ferí of the deed, by which the time for making the award was extended, was necessary in the plaintiff’s replication ?
It is manifest, that the plaintiff’s title to maintain this action depends upon that deed. For unless he can show a binding award, his action fails, and there could be no binding award made after the 1st December, 1828, unless the time for making the award stated in the condition of the bond was extended by a deed. A deed cannot be altered after it is made, unless it be by an instrument of as high a nature. 2 B. & C. 179, Creig v. Talbot; 3 D. & E. 592, note.
When a party claims by deed, in pleading he ought to make a proferí of the deed to the court. This is a general rule. Buller’s N. P. 249; Com. Dig. “ Pleader” O, 1 — 17 ; 10 Coke, 92 ; 1 Chitty’s Pl. 348. But when a
There are cases in which, where a deed is made necessary ex provisione hominis, there need be no profert of it in pleading. But in cases where a deed is necessary ex institutions legis, there a profert must be made in pleading. For it is said to be repugnant that the law should require a deed, and not put the party to show the deed when it is made. 6 Coke, 38, Bellamy's Case. Buller’s N, P. 250.
In this case the deed alleged in the replication was, ex institutions legis, necessary to show a legal extension of the time within which the award might be made, and we are of opinion that a profert was necessary.
It is well settled that the omission of a profert, where it is necessary, is fatal upon a special demurrer. Com. Dig. « Pleader,” 0, 17 ; 1 Chitty’s PI. 350.
Replication adjudged insufficient.