Dexter Savings Bank v. Copeland , 1881 Me. LEXIS 67 ( 1881 )

Virgin, J.

The third count in the declaration is one in the usual form against an executor for money had and received by his testate in his lifetime, to the plaintiffs’ use (Oliv. Prec. 173, 182) ; together with the allegations rendered essential by the statute, that the plaintiffs " first presented to the said Copeland (executor) their claim in writing and demanded payment thereof, more than thirty days before the commencement of this action and within two years after notice given by said Copeland of his appointment as executor.” Eaton v. Buswell; 69 Maine, 554; stat. 1872, c. 85, § 12. Whether this allegation refers to the first and second counts, is immaterial to our present inquiry, since both parties claim that it does refer, at least, to the third count; and if that count is good, the demurrer must be overruled. Blanchard v. Hoxie, 34 Maine, 376; Concord v. Delaney, 56 Maine, 201.

The question is one of pleading and not of evidence or sufficiency of proof. The allegation that the plaintiffs presented their claim in writing does not mean that the written claim as presented was couched in the language of the count, but that it contained a statement of such a cause of action as, if proved, will sustain the count. The particular cause of action may be any one of those which may be proved under and will sustain the count. To enable the plaintiffs to secure an attachment of real estate under such a count, "a specification of the nature and amount of their demand annexed to their writ” was essential. R. S., c. 81, § 56. And a "specification of the matters to be proved in support of such a count” the defendant is entitled to on motion at nisi prius. Rule xi. But such specifications are no part of the count, and a judgment could be rendered as well without it as with it. The count itself discloses, as a matter of law, a sufficient statement of agoodground of action, and whether the plaintiffs will be able to establish the facts necessary to entitle them to recover remains to be seen at the trial. Concord v. Delaney, supra. The defendant can plead over under the provisions of R. S., c. 82, § 19.

Exceptions overruled.

Appleton, C. J., Walton, Daneorth, Peters and Libbet, JJ., concurred.