FROM MERRIMACK CIRCUIT COURT. In this case the writ was made before the change in the judiciary in 1874, and returnable at the October term of the same year, and served by an attachment of property, but no summons was at that time served upon the defendant. After the change in the judiciary, when the supreme judicial court had ceased to exist, and the circuit court had been created to take the place of the former court at trial terms, a summons was served upon the defendant, purporting to be issued from the circuit court, ordering the defendant to appear at that court at the October term, 1874, tested by the chief justice of that court, and bearing date after its creation.
The defendant, relying upon Gen. Stats., chap. 204, sec. 3, pleads in abatement that the summons was not in the form required by law, and specifies for particulars the above mentioned variations from the writ; and the question we have to determine is, whether this allegation is true.
By Gen. Stats., chap. 203, sec. 14, it is provided that the forms of certain writs and processes shall be, in substance, as given in that chapter, and among these forms is that for the summons when property is attached. This form has certain blanks which are to be, according to the case of Keniston v. Chesley 52 N.H. 568, properly filled. The objection stated in the plea is, that the bland for the name of the court and the blank for the date of the summons were not properly filled; and the question is, whether there was any substantial defect.
By the statute which changed the judiciary, it was ordered that all writs and processes returnable at the trial terms of the then supreme judicial court should be returnable at the corresponding terms of the circuit court. As soon, then, as the new system went into operation, a writ which had previously been issued was no longer returnable to the supreme judicial court, but was then in substance a writ returnable to the circuit court. If, then, the blank in the summons had been filled with the name of the old court, it would have been substantially wrong, and would have varied from what the writ had then substantially become. The summons, then, was in substance in the form required by the statute, and is unobjectionable in this particular.
In Rogers v. Farnum, 25 N.H. 511, it was held clearly that the date was not of the substance of the summons. The very just remarks of the learned judge who delivered the opinion in that case, seem to me to apply with equal force in this case. The summons is substantially correct, because the matter in which it varies from the writ could in no possible manner mislead or embarrass the party. The teste of the writ is merely matter of form. *Page 20
The provision for serving a summons on the defendant is found in the statute of February 9, 1791, and is in these words: "And when the goods or effect of any person shall be attached at the suit of another in any civil action, a summons in form of law, as is prescribed, shall be delivered to the party whose goods or estate are attached, or left at his or her dwelling-house, or last and usual place of abode, fifteen days before the day of the sitting of the court to which such writ of attachment is returnable."
The next clause of the statute, after enacting what the summons. shall contain, has these words: "And the officer serving or leaving such summons shall also indorse his name before he leaves it on the back thereof, otherwise the writ shall abate." Substantially the same provision is found in the statute of January 2, 1829.
In the revision of 1840, ch. 183, sec. 3, is as follows: "When the goods or estate of any person shall be attached, a summons in the form prescribed by law shall be delivered to the defendant, or left at his usual place of abode, with the name and office of the officer serving the same endorsed by him thereon." Gen. Stats., ch. 204, sec. 3, is the same. It is plain that by the statutes of 1791 and 1829 it was not required that the summons should be served at the time of the attachment. It was enough if it were served fifteen days* before the return day of the writ. Neither was it necessary that the summons should be served by the officer who made the attachment. Under the Revised Statutes and the General Statutes, I think the practice has been the same; and it has, always, so far as my knowledge of the practice extends, been considered sufficient to complete the service of the writ by serving the summons the required time before the return day. The mode of reckoning time having been changed by the Revised Statutes so that the day of the act done could not be counted, the time was verbally altered to fourteen days, so as in fact to leave it the same. I think, also, that it has never been considered necessary that the summons should be served by the same officer who made the attachment.
If these views are correct, the plaintiff in this case was justified in withholding the service of the summons as he did. Meanwhile, the court, in whose name his writ had been issued, had ceased to exist, and its jurisdiction at trial terms had been conferred upon the circuit court. The issuing a summons in the name of the supreme court would have been entirely useless, and the only way which could be taken to give the desired information to the defendant was that which was taken; and although the teste is a matter of form, it would have been absurd to insert any other name than that of the chief justice of the existing court; — so that I cannot see why or how the summons in this case is open to the objections made to it.
It was a matter of course to permit the demurrer to be amended on *Page 21 such reasonable terms as the court in its discretion might impose, or without any terms.
* "And it [the writ] is always made returnable at the distance of at least fifteen days from the date or teste, that the defendant may have time to come up to Westminster, even from the most remote parts of the kingdom; * * *." III Bl. Com. 275. REPORTER.