Daniel Tucker versus Stephen Perley

This was art action of covenant broken. The defendant craved oyer of the writ, and return of the sheriff, and had it, and then prayed judgment of the writ, because he says that by virtue of if o writ aforesaid his estate is attached, &c. and that the summons left by the said officer serving said writ, and the same by him mentioned as having been left with him the said Perley, in Ills return above set forth, is in the words andfigures folio wing,’(here the'summons was set forth at large.) Whereupon the said Perley says, that among other defects in the said summons “ what sum in damages is demanded and for what,” is not set forth, whereupon he prays that the suit may abate-

To this plea there was demurrer, and joinder in demurrer. contended, that the plea was bad, because there was no proferí of the summons.

Mason & Lyford, for the plaintiff,

Woodbury & Walker, for the defendant,

By the court. It must now be considered as settled in this state, that in pleading in abatement a defect in the summons, the defendant must crave oyer of the writ, and enrol the summons. Nelson v. Street, 4 N. H. Rep. 256, There is no settled form in which a defendant must pray an enrolment. Regularly, there should be a profert and enrolment. But if the defendant prays an enrolment and sets the summons out at large in his plea, the summons will be presumed to be in court.

There must be something tantamount, at least, to a profert, otherwise the plaintiff is not entitled to oyer. 1 Chitty’s Pl. 415; Com. Dig. “Pleader,” P. 1; 1 Saund. 8, Jevens v. Harridge.

And it is very evident, that the plaintiff should have •oyer in order that he may see that the summons is truly enrolled.

In this case, it is only averred that a summons was left, which is set out at large; but there is neither a pro-fert, nor any prayer that the summons may be enrolled. It does not appear in any way, even by implication, that the summons is in court. It is, then, clear, that as the law is settled in this state, the plea cannot be supported.

Judgment that the defendant answer further.