Tucker v. Perley
Superior Court of New Hampshire
This was art action of covenant broken. The defendant craved oyer of the writ, and return of the sheriff, and had it, and then prayed judgment of the writ, because he says that by virtue of if o writ aforesaid his estate is attached, &c. and that the summons left by the said officer serving said writ, and the same by him mentioned as having been left with him the said Perley, in Ills return above set forth, is in the words andfigures folio wing,’(here the'summons was set…
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This was art action of covenant broken. The defendant craved oyer of the writ, and return of the sheriff, and had it, and then prayed judgment of the writ, because he says that by virtue of if o writ aforesaid his estate is attached, &c. and that the summons left by the said officer serving said writ, and the same by him mentioned as having been left with him the said Perley, in Ills return above set forth, is in the words andfigures folio wing,’(here the'summons was set forth at large.) Whereupon the said Perley says, that among other defects in the said summons “ what sum in damages is…
1Opinion of the Court
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 *346and 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.…
2Cases cited1 opinion
- Nelson v. SwettSuperior Court of New Hampshire · 1827
3Cited by1 opinion
- Pitman v. PerkinsSuperior Court of New Hampshire · 1853