MEALEY v. METROPOLITAN LIFE INS. 00. 25
MEALEY v. l\IEraoroL1·rAN LIFE INs. C0.
` (Circuit Oourt, D. Rhode Island. February 26, 1885.)
PRACTICE—MOTION ro Finn lNsrnuMENrs PLEADED 1N Dmrnnsm uw C1.Eax’s Or-
r1oE-Pim. Sr. R. I. c. 214, § 45.
In an action on a policy of life insurance defendant filed several pleas, set-
ting out that the statements and answers to certain questions contained in the
application and medical examination which formed part of the contract of in-
‘ surance, were untrue, and specifying the particular statements so alleged to be
untrue, and making profert of the application and medical examination. Plain-
tiff moved for an ordcr on defendant to nie the application and medical exam-
ination in the clcrk’s otlice. Held, that the motion could not be granted.
Motion for Production and Filing of Certain Papers.
W. F. Angell and O. Bradley, for plaintiff.
W. G. Roelker, for defendant.
CARPENTER, J. This is an action on a policy of life insurance; and
the defendant files several pleas setting out that the statements and
answers to certain questions contained in the application and medi-
cal examination, which form part of the contract of insurance, are
untrue, and specifying the particular statements so alleged to be un-
true, and making profert of the application and medical examination.
The plaintiff now moves for an order on the defendant to file the ap-
plication and medical examination in the clerk’s office. The motion
is not properly framed as a demand of oyer, since the order granting
oyer would provide only that the plaintiff have a copy of the instru-
ment, and not that the original instrument be put on file. The mo-
tion has, however, been argued as though it were a proper demand
of oyer, and in that light I have considered it. In the nrst place, it
is to be noted that the plea does not show that the agreement is un-
der seal, and,consequently, profert was unnecessary, and oyer cannot
be demanded. The authorities cited by the defendant abundantly sus-
tain this position. 1 Chit. Pl. *430, *431; Sneecl v. Wister, 8 Wheat.
690. Indeed, the order here asked seems to be prohibited by implied
exclusion, by the twenty—third law rule for this circuit, which reads
as follows: `
"0yer of all specialties declared on may be had on motion at the return
term, but not afterwards, unless by special order of court, on aflidavit of
special cause."
It was, however, the practice of the English courts, and is the
practice with us, in cases where oyer is not demandable, but in which
the court can see that a knowledge of the instrument in question is
proper and necessary for either party, to make an order that he have
a copy. But in the practice of the courts of Rhode Island, which is
followed by this court, the proceeding to be taken in order to obtain
an order of this kind is prescribed by the law of the state in Pub. St.
c. 214, § 45, which is as follows:
Whenever either party to any proceeding at law or equity in the supreme
court, or to any proceeding at law in the court of common pleas, shall set