Grant v. Durgin , 45 N.H. 167 ( 1863 )

Bartlett, J.

It is unnecessary to decide whether the mere fact that the “summons contains only one count,” while the declaration contains several, would of itself be sufficient reason for the abatement of the writ, for here a substantial part of the first count of the declaration is omitted in the summons. That count alleges that the defendant, on, &c., pfomised to marry the plaintiff upon request, and that she requested him thereafterwards on the 20th of November, 1849, to marry her, &c., and the summons,’ which merely requires the defendant to appear, &c., and answer, &c., in a plea of the case on contract, for breach of marriage promise with the plaintiff when she was sole and unmarried in the year 1849, by no means gives to the defendant the same information which the declaration gives more at large, nor contains the substance of it. The case, therefore, differs from Adams v. Wiggin, 42 N. H. 554, where the variance between the writ and the summons was in a particular held to be mere matter of form. Pitman v. Perkins, 28 N. H. 94; Smith v. Butler, 25 N. H. 523; Rogers v. Farnham, 25 N. H. 512. Upon the demurrer, therefore, there must be

Judgment for the defendant that the writ abate.