Tucker v. Perley

5 N.H. 345

• Court: Superior Court of New Hampshire
• Decided: January 15, 1831
• Status: Published

Opinion

By the court.

It must now be considered as settled in this state, that in pleading in abatement a defect in the summons, the defendant must crave oyer of the writ, and enrol the summons. Nelson v. Street, 4 N. H. Rep. 256,

There is no settled form in which a defendant must pray an enrolment. Regularly, there should be a profert and enrolment. But if the defendant prays an enrolment and sets the summons out at large in his plea, the summons will be presumed to be in court.

There must be something tantamount, at least, to a profert, otherwise the plaintiff is not entitled to oyer. 1 Chitty’s Pl. 415 ; Com. Dig. “Pleader,” P. 1 ; 1 Saund. 8, Jevens v. Harridge.

And it is very evident, that the plaintiff should have •oyer in order that he may see that the summons is truly enrolled.

In this case, it is only averred that a summons was left, which is set out at large ; but there is neither a pro-fert, nor any prayer that the summons may be enrolled. It does not appear in any way, even by implication, that the summons is in court. It is, then, clear, that as the law is settled in this state, the plea cannot be supported.

Judgment that the defendant answer further.