Smith v. Butler

25 N.H. 521 | Superior Court of New Hampshire | 1852

Eastman, J.

This summons was bad. It did not give to the defendant the same information which the declaration gives more at large, nor contain the substance thereof. Rev. Stat. ch. 183, § 4.

The defect was a substantial one. The writ contained four counts, and the summons but two. The defendant might have been willing to let judgment pass against him upon the two counts specified in the summons, while at the same time he might have had a valid defence to the other two not specified. And to hold such a summons good, would be to put it in the power of a plaintiff to obtain a judgment against a defendant, in ease he should not appear, upon a cause of action of which he had no notice.

But the demurrer raises two or three questions upon the sufficiency of the plea in abatement, which we will consider.

It is said in the argument that the plea is not wholly in the English language; that “ vs.” stands for “ versus,” and that “ versus ” is not an English word; that the plea should have been entitled Smith against Butler. But “ vs.” and “versus” have been too long used in legal practice, and their meaning is too well understood, to be open to the objection stated. They have, in fact, become engrafted upon the English language, at least so far as they are used in this country in legal proceedings. Their meaning is well understood, and their use quite as appropriate as the word “ against ” could be.

The position in regard to the copy of the seal is also untenable. In copying a writ or summons, the fac simile of a seal cannot well be made, and to do it would require more skill than pertains to the profession generally. By long usage and the general understanding of legal writers, “ L. S.” is regarded as the true representation of a seal, in a copy of all legal precepts. If the word “ seal” were written in the place of the seal, on the writ or summons, it would not be a true copy, for no such writing is upon the writ or summons. Whether we might receive that as a sufficient representation, is not necessary to say; but we have no hesitancy in deciding that the letters “ L. S.” are the proper designation and copy of the seal.

Another exception is, that the plea is not sufficiently certain ; that it should have been stated in the “ words, figures and letters ” following, instead of simply saying the “ words ” following.

•The court do not ordinarily regard pleas in abatement with much favor, and when any error occurs in the enrolment of the writ or summons, we hold the plea bad on general demurrer. But the defeet here alleged is not of that character. No exception is taken to the enrolment. And the allegation in the plea is in accordance with the general forms in such cases, and we think sufficient. Bell’s Jus. & Sher. 95; Story’s Plead. 117; Nelson v. Swett, 4 N. H. Rep. 256.

The last point raised by the argument is not embraced in the case. But, probably, if it was, it would not avail. Lyman v. Dodge, 13 N. H. Rep. 198.

Judgment for the defendants.