Lary v. Evans , 35 N.H. 172 ( 1857 )

Eowleb, J.

Three objections to the sufficiency of the plea in abatement in the present case have been urged by the plaintiff’s counsel, to only one of which have we deemed it necessary to direct our attention. The plea does not enrol the copy of the writ delivered to the trustee by the officer, through errors in which the defective service, or rather want of service, is alleged to have occurred, and proposed to be shown. This is a fatal defect.

Where an insufficient summons, or one not containing the substance of the writ or declaration, is relied upon as the foundation of a plea in abatement, the defendant must crave oyer of the writ, declaration and officer’s return, set them out at large, and also make profert of and enrol the summons. Nelson v. Swett, 4 N. H. 256 ; Clark v. Brown, 6 N. H. 434; Lyman v. Dodge, 13 N. H. 197; Dinsmore v. Pendexter, 8 Foster 18.

The same principle that requires the enrolment of a summons, where some deficiency therein is relied upon to defeat the service and thus abate the action, requires the enrolment of the copy where service is made in that way. The design of a plea in abatement for defect of service is to enable the defendant to take advantage of the erroneous return of the officer, by avoiding the suit, instead of being compelled to resort to an action for a false return. This is accomplished by demonstrating the erroneous character of the return through the record of the court; and to this end it is indispensable that the writ, officer’s return and defective summons or copy should be enrolled and become part of that record — that the court, upon inspection, where the error or defect has been specifically pointed out, may determine whether it exists; and, moreover, that if the return be erroneous or false the record itself may prove it.

The necessity of such enrolment is equally apparent, whether the service be made by summons or copy, for in both cases its object is the same — to have the record confirm or refute the allegations of the plea, and thus form a proper basis for the judgment of the court.

The ground on which a party is permitted thus to contradict the return of the officer and show a want of service of the process, is said by Lord Coke to be, that “ where the veritie is apparent in the record, then the adverse party shall not be estopped to take advantage of the truth; for he cannot be estopped to allege the truth, when the truth appeareth of record.” Coke Litt. 352, b; Comyn’s Dig., Estoppel, E. 2.

In the present case the copy of the writ alleged in the return to have been delivered to the trustee, not having been enrolled and made part of the record, there is nothing on the record whereby to test the allegations of the plea, and show whether the officer’s return is true or false. The “ veritie” is not apparent in the record of the court, and so the officer’s return must stand.

Eor these reasons, without adverting to the other objections taken to the plea in abatement, the demurrer must be sustained, and the defendant trustee Ordered to answer further.