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18 N.H. 551

Baker v. Brown

Superior Court of New Hampshire

Decided July 15, 1847

Superior Court of New Hampshire · decided 1847-07-15

Assumpsit. The plea set out the writ and return on oyer, and enrolled the summons, and concluded as follows: Whereupon the said Brown prays judgment of the plaintiff’s said writ, because he says that the summons aforesaid is not in due form of law, as is prescribed, in this, namely: that by said wi’it the defendant is required to answer to the said plaintiff in our court of common pleas, to be holden at Exeter, in said county of Buckingham, on the second Tuesday of February,…

Cited by 2 later decisions — most recently June 1889

2 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1847-07-15

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Gilchrist, J.

¶1The plaintiff, in reenrolling the writ and service, has shown certain variances between the defendant’s enrollment and the original matter which he professes to enroll. These variances are particularly pointed out in assigning causes of demurrer'to the plea, and insisted on as material defects in the plea.

¶2In Goodall v. Durgin, 14 N. H. Rep. 577, it is said that the party assuming to enroll is hound to an enrollment that is substantially correct; and if there' is an omission of a material word, there is not in substance a correct enrollment. It is also said that the enrollment should give a fae simile of the matter, “when a variance is alleged.”

¶3These expressions may be referred to as giving an outline of the whole doctrine on the question presented. When it is to be inspected for the purpose of ascertaining the truth of the matter alleged or suggested in the plea, it is important, of course, that the enrollment should be so scrupulously accurate as to present to view the variance relied on, precisely as it exists. In the language cited, it should contain a “fae simile of the matter.”

¶4But as to that part of the enrollment which is no further necessary than to satisfy the exactions of the rule requiring the whole matter to be enrolled, no reason exists for insisting upon more than that it shall be substantially correct. The errors indicated in the demurrer cannot be regarded as substantial. They consist of some cases of mis-spelling, and denominating as words the con*554tents of a record made np in part of figures, and the like, in parts not necessary for showing the variance relied on in the plea.

¶5The form in which judgment is prayed is precisely the one which received the well considered approval of-the court in Pike v. Bagley, 4 N. H. Rep. 76. To the same effect is Clark v. Brown, 6 N. H. Rep. 434.

¶6The variance between the writ and summons is, without doubt, fatal. Nelson v. Swett, 4 N. H. Rep. 256.

¶7Writ abated.

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