Opinion

Baker v. Brown

  • 18 N.H. 551
Court
Superior Court of New Hampshire
Filed
Jul 15, 1847
Status
Published
Author
Gilchrist
On the bench
Gilchrist
Cited by
0 cases
Authority
More cited than 11.6%

The opinion

Gilchrist, J.

The 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.

In 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.”

These 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.”

But 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 *554 tents 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.

The 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 .

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

Writ abated.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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