Wendell v. Moulton

14 N.H. 573

• Court: Superior Court of New Hampshire
• Decided: January 15, 1844
• Status: Published

Opinion

Parker, C. J.

The statute of January 2, 1829, which is applicable to this case, enacts, among other things, that the summons shall set forth the sum in the note or bond declared on, &c., and “shall briefly give the same information to the defendant, which the declaration gives more at large, and shall contain the substance thereof;” otherwise the writ shall abate. N. H. Laws (Ed. 1830) 92. Whether this is a wise provision or not, it does not belong to us to determine. It is sufficient that the language of the statute is imperative ; to which it might be added, that the legislature have seen fit to adhere to the policy of it, notwithstanding an attempt to procure a change mitigating its rigor. The only question for our consideration is, whether the summons is within its provisions; and we are clear that it is not. It does not give to the defendant information whether the plaintiffs claim on their own seizin, or that of their intestate; nor whether the seizin upon which they count is in fee or freehold, or even for a term, and this is certainly material information relative to the cause of action stated in the writ. It is said that the plea does not allege as a variance the omission to state the estate demanded; but we need not inquire whether this is or is not substantially alleged, as the omission to state whether the demandants, who sue as administrators, counted upon their own seizin personally or as administrators, or upon the seizin of the intestate, must be held fatal. 6 N. H. Rep. 160, Stoddard vs. Cockran; 8 N. H. Rep. 542, Knowles vs. Rowell.

Writ abated.