Putney v. Cram

5 N.H. 174

Opinion

By ike court-

The plea In this case is founded upon the ilth section of the statute of January 2, 1829, which en acts, that all summonses left with defendants when writs arc served in actions of covenant, shall set forth “ what sum in damages is demanded, and for what.” The first ■question is, whether the summons in this case was defective in this respect ? On this question there is no doubt. The damages ^claimed in the declaration, are for the breach of covenants, that Cram was seized in fee, that he had good right to sell, and that the plaintiff should enjoy the premises free from all incumbrances. But, in the summons, the damages are claimed, not on any of these grounds, but because the defendant covenanted to sell and convey land to the plaintiff free of all incum-brances, of which the plaintiff has been dispossessed. The damages are therefore stated in the summons to be demanded for the breach of a covenant altogether different from any covenant mentioned in the declaration. The summons is then defective in'not stating for what the dam-ages are demanded in the declaration, as required by the express terms of the statute.

The only remaining question is, whether this defect is in law a sufficient cause to abate the writ ? It has been decided, that it was a good cause to abate a writ, that no summons had been left with the defendant for his appearance at the time and place, when and where the writ was returnable. Nelson v. Swett, Grafton, November, 1827.

It ⅛ declared expressly in the same section of the statute upon which this plea is founded, that unless the officer, who leaves the summons, shall endorse his name upon the back of the summons, before he leaves it, the writ shall abate. And it is believed to have been verv generally understood among the members of the bar, that if any thing was omitted in the summons, which the statute required to be inserted, it was a good cause to abate tbe writ. We have known many pleas in abatement for defects in summonses, but do not recollect any case in which it was ever made a question, whether a writ might be abated for that cause. The question comes to this, can a summons, which does not contain, what the statute requires, be adjudged to be a legal summons ? If it cannot, the question is settled, for a summons which is not legal is as no summons. And it seems to us, that it will be difficult to maintain, that a summons with such a defect is a legal summons, and we are of opinion that the plea must be adjudged sufficient.