Goodall v. Durgin

14 N.H. 576

Opinion

Parker, G. J.

We have had some hesitation respecting this case, but upon consideration, are of opinion that the demurrer is well taken. By our practice, the party pleading in abatement for a variance between the writ and summons, is bound to enrol them, that it may appear, upon inspection, whether the alleged variance does exist. He is, of course, bound to an enrolment which is substantially correct. 4 N. H. Rep. 76, Pike vs. Baglay; 6 N. H. Rep. 434, Clark vs. Brown; and the defendant in this case professes to enrol the summons by setting out a copy of it. If there is an omission of a material word, there is not, in substance, a correct enrolment, and the word “ Greeting” is a part of the statutory form of the summons. The plea is bad, therefore, for this reason, and we need not inquire whether, the placing of the ciphers substantially nearer to.the figures $ 105, which preceded them, than they were placed in the summons itself, would vitiate the enrolment. The plaintiff’s reenrolment is, in this respect, as defective as the defendant’s enrolment, but the variance is of the opposite character. Neither give a fac simile of the matter, as it appears in the summons ; which, perhaps, is necessary to a substantial enrolment in such a particular, when a variance is alleged.

Respondeas ouster.