Gragg v. Frye , 32 Me. 283 ( 1850 )

Wells, J.,

orally.—The question is as to defendant’s right to prove the note in set-off, under an account for money had and received.

The statute requires the demand filed “to be as certain in substance as would be required in a declarationand allows amendments, when deemed proper by the court. It is settled that in a declaration for money had and received, such a note may be given in evidence. The amendment was allowable, but wholly unnecessary.

Another objection is, that the note had been previously sued in the name of another person ; and that the defendant had no right to withdraw it pending this action, and to file it here. And the case is said to be analogous to second suits for the same causes of action. But there is a diversity to be considered. In those cases the remedy is in abatement. The objection may be waived. But we think in this case, there was not a previous ¿is pendens. The count was upon a different note, one not drawing interest. This note is upon interest.

This note would not have supported the count. It is upon that ground that our decision is-founded. There was, at no time, a lis pendens upon the note.

Exceptions overruled.