Pitman v. Perkins

28 N.H. 90

• Court: Superior Court of New Hampshire
• Decided: December 15, 1853
• Status: Published

Opinion

Gilchrist, C. J.

The first question to be considered is, whether there is any defect in the plea.' The exception taken by the demurrer is, that the plea craves oyer of the writ, declaration and return, in one paragraph. .

In the case of Nelson v. Swett, 4 N. H. Rep. 256, it is stated that the defendant having craved oyer of the writ and declaration, prayed, &c. In Tucker v. Perley, 5 N. H. Rep. 345, the defendant “ craved oyer of the writ and return,” and also in Stoddard v. Cochran, 6 N. H. Rep. 160, and in Knowles v. Rowell, 8 N. H. Rep. 542. In the present case the defendant craves oyer of the “ writ and declaration,” and this form seems to be fully authorized by the precedents.

The question then arises, whether the matter stated is sufficient to abate the writ. The summons must contain the substance of the writ. The writ is for money had and received, while the summons mentions only a count for money paid. Here, then, there is an omission of the substance of the writ, and therefore there must be judgment for the defendant. It becomes unnecessary to determine the other points stated in the argument.

Writ abated.