Where a defect in the summons, left with the defendant when his goods are attached on the writ, is pleaded in abatement, our practice requires the writ and summons to be enrolled, as was done in this case. The writ and summons being thus made part of the record, the defect in the summons appears on the record. But the fact that the matter pleaded in abatement appears on the face of the writ and summons thus enrolled, does not excuse the defendant from stating by way of averment what it is which he relies on to abate the writ. It would not be sufficient to enroll a writ and the defective summons, and, without stating in the plea what the defect relied on was, merely conclude by praying judgment of the writ; and so leave the court to discover or conjecture what ground was meant to be *377taken to abate tbe writ. Nelson v. Swett, 4 N. H. 257; Dyke v. Percival, 14 N. H. 578.
And the defendant being required to state in his plea the matter of abatement on which he relies, must do it with the exactness and precision which the general rule of law requires in this class of pleas.
This plea was pleaded at the term of the court held in November, 1855, and alleges that the writ required the defendant to appear on the first Tuesday of November next, and the summons on the fourth Tuesday of November next. There is nothing in the plea which shows or intimates that it was intended to set forth or recite any part of the writ or the summons; it stands in the plea as an independent averment of the different times at which, by the writ and summons, the defendant was required to appear.
A plea speaks as of the time when it is pleaded; an averment in a plea is referred to the time of plea pleaded and not to the time when the suit was commenced.
The effect of the allegation in this plea is, that by the writ and summons the defendant was required to appear on different days in November, which would be next after the time when the plea was pleaded, that is, in November, 1856. This averment is not accurate nor consistent with the writ and summons, which are enrolled as part of the plea. Courts make no intendments to sustain pleas of this class. They seek to take advantage of formal defects, and must themselves be correct in form.
A plea in abatement for a wrong addition to the defendant’s name, must refer to the time when the suit was commenced, and not to the time when the plea was pleaded. If it should aver that the defendant is a gentleman, and not a yeoman, as by the writ is supposed, the plea would not be good, because the defendant may have been of the rank of yeoman when the suit was commenced, and have become a gentleman since. Story’s Pleadings at Law 98. So of a plea in abatement for a wrong description of a defendant’s residence. Story 94.
The demurrer must be allowed, and the defendant, answer over.