Dinsmore v. Pendexter

Superior Court of New Hampshire

Dinsmore v. Pendexter

28 N.H. 18

DecidedDecember 15, 1853

StatusPublished

This text of 28 N.H. 18 (Dinsmore v. Pendexter) 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

Dinsmore v. Pendexter, 28 N.H. 18 (N.H. Super. Ct. 1853).

Pincite

Opinion

Woods, J.

The plea, in this case, alleges a variance between the declaration contained in the writ and the cause of action set forth in the summons, because the summons did not give to the defendants the same information which the declaration gave more at large, nor contain the substance thereof.

Chapter 183, sections 3 and 4, of the Revised Statutes provides that “ when the goods or estate of any person shall be attached, a summons, in form prescribed by law, shall be delivered to the defendant, or left at his usual place of abode, with the name and office of the officer serving the same indorsed thereon.” And that each summons, among other things, “ shall in all cases briefly give to the defendant the [21]*21same information which the declaration gives more at large, and shall contain the substance thereof.”

These provisions are the same with those contained in the act of February 9, 1791, which remained in force till the passing of the Revised Statutes, and nearly in the same words.

In Nelson v. Swett, decided in this court in 1827, and reported in 4 N. H. Rep. 256, Richardson, C. J., after reciting that part of the statute of 1791, remarks thus: “ Soon after the time when original jurisdiction was first given to this court, in 1818, our attention was called to the subject of pleas in abatement, founded on the paragraph lastly above cited, for a variance between the declaration and the summons, and we decided that in such cases the defendant should crave oyer of the writ, declaration and officer’s return, and set them out at large, and also enrol the summons. To that decision we have ever since adhered, and still think it correct.”

The decision referred to and confirmed by the court in Nelson v. Swett, is decisive of the present case, if sound law. We are not aware that it has ever been overruled or questioned.

In the present case, the officer’s return is not set out in the plea, and for that reason the plea is bad. We need not inquire whether there is any such variance as is alleged. The defendant must

Answer further.

Free access — add to your briefcase to read the full text and ask questions with AI

Woods, J.

The plea, in this case, alleges a variance between the declaration contained in the writ and the cause of action set forth in the summons, because the summons did not give to the defendants the same information which the declaration gave more at large, nor contain the substance thereof.

Chapter 183, sections 3 and 4, of the Revised Statutes provides that “ when the goods or estate of any person shall be attached, a summons, in form prescribed by law, shall be delivered to the defendant, or left at his usual place of abode, with the name and office of the officer serving the same indorsed thereon.” And that each summons, among other things, “ shall in all cases briefly give to the defendant the [21]*21same information which the declaration gives more at large, and shall contain the substance thereof.”

These provisions are the same with those contained in the act of February 9, 1791, which remained in force till the passing of the Revised Statutes, and nearly in the same words.

In Nelson v. Swett, decided in this court in 1827, and reported in 4 N. H. Rep. 256, Richardson, C. J., after reciting that part of the statute of 1791, remarks thus: “ Soon after the time when original jurisdiction was first given to this court, in 1818, our attention was called to the subject of pleas in abatement, founded on the paragraph lastly above cited, for a variance between the declaration and the summons, and we decided that in such cases the defendant should crave oyer of the writ, declaration and officer’s return, and set them out at large, and also enrol the summons. To that decision we have ever since adhered, and still think it correct.”

The decision referred to and confirmed by the court in Nelson v. Swett, is decisive of the present case, if sound law. We are not aware that it has ever been overruled or questioned.

In the present case, the officer’s return is not set out in the plea, and for that reason the plea is bad. We need not inquire whether there is any such variance as is alleged. The defendant must

Answer further.

Cite This Page — Counsel Stack

Bluebook (online)

28 N.H. 18, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dinsmore-v-pendexter-nhsuperct-1853.

Opinion

Related

Cite This Page — Counsel Stack