Baker v. Brown

Superior Court of New Hampshire

Baker v. Brown

18 N.H. 551

DecidedJuly 15, 1847

StatusPublished

This text of 18 N.H. 551 (Baker v. Brown) is published on Counsel Stack Legal Research, covering Superior Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Baker v. Brown, 18 N.H. 551 (N.H. Super. Ct. 1847).

Pincite

Opinion

Gilchrist, J.

The plaintiff, in reenrolling the writ and service, has shown certain variances between the defendant’s enrollment and the original matter which he professes to enroll. These variances are particularly pointed out in assigning causes of demurrer'to the plea, and insisted on as material defects in the plea.

In Goodall v. Durgin, 14 N. H. Rep. 577, it is said that the party assuming to enroll is hound to an enrollment that is substantially correct; and if there' is an omission of a material word, there is not in substance a correct enrollment. It is also said that the enrollment should give a fae simile of the matter, “when a variance is alleged.”

These expressions may be referred to as giving an outline of the whole doctrine on the question presented. When it is to be inspected for the purpose of ascertaining the truth of the matter alleged or suggested in the plea, it is important, of course, that the enrollment should be so scrupulously accurate as to present to view the variance relied on, precisely as it exists. In the language cited, it should contain a “fae simile of the matter.”

But as to that part of the enrollment which is no further necessary than to satisfy the exactions of the rule requiring the whole matter to be enrolled, no reason exists for insisting upon more than that it shall be substantially correct. The errors indicated in the demurrer cannot be regarded as substantial. They consist of some cases of mis-spelling, and denominating as words the con[554]*554tents of a record made np in part of figures, and the like, in parts not necessary for showing the variance relied on in the plea.

The form in which judgment is prayed is precisely the one which received the well considered approval of-the court in Pike v. Bagley, 4 N. H. Rep. 76. To the same effect is Clark v. Brown, 6 N. H. Rep. 434.

The variance between the writ and summons is, without doubt, fatal. Nelson v. Swett, 4 N. H. Rep. 256.

Writ abated.

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Gilchrist, J.

The plaintiff, in reenrolling the writ and service, has shown certain variances between the defendant’s enrollment and the original matter which he professes to enroll. These variances are particularly pointed out in assigning causes of demurrer'to the plea, and insisted on as material defects in the plea.

In Goodall v. Durgin, 14 N. H. Rep. 577, it is said that the party assuming to enroll is hound to an enrollment that is substantially correct; and if there' is an omission of a material word, there is not in substance a correct enrollment. It is also said that the enrollment should give a fae simile of the matter, “when a variance is alleged.”

These expressions may be referred to as giving an outline of the whole doctrine on the question presented. When it is to be inspected for the purpose of ascertaining the truth of the matter alleged or suggested in the plea, it is important, of course, that the enrollment should be so scrupulously accurate as to present to view the variance relied on, precisely as it exists. In the language cited, it should contain a “fae simile of the matter.”

But as to that part of the enrollment which is no further necessary than to satisfy the exactions of the rule requiring the whole matter to be enrolled, no reason exists for insisting upon more than that it shall be substantially correct. The errors indicated in the demurrer cannot be regarded as substantial. They consist of some cases of mis-spelling, and denominating as words the con[554]*554tents of a record made np in part of figures, and the like, in parts not necessary for showing the variance relied on in the plea.

The form in which judgment is prayed is precisely the one which received the well considered approval of-the court in Pike v. Bagley, 4 N. H. Rep. 76. To the same effect is Clark v. Brown, 6 N. H. Rep. 434.

The variance between the writ and summons is, without doubt, fatal. Nelson v. Swett, 4 N. H. Rep. 256.

Writ abated.

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18 N.H. 551, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baker-v-brown-nhsuperct-1847.

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