Shaw v. Nickerson

60 Me. 249

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1872
• Status: Published

Opinion

Appleton, C. J.

The writ in the suit Shaw v. Newhall, contained only a count for money had and received.

Property can be attached only to secure demands in suit. ‘When the writ contains the money counts there may be difficulty,’ observes Shepley, J., in Fairbanks v. Stanley, 18 Maine, 302, ‘ in determining what demands were put in suit.’ To make that certain the statute of 1838, c. 344, which is found in the revision of 1857, c. 81, § 31, was enacted. By this section no attachment is valid ‘ unless the plaintiffs demand on which he founds his action, and the nature and amount thereof, are substantially set forth in proper counts or a specification thereof is annexed to the writ.’ If a count sets forth the nature and amount of the plaintiffs demand, so that one may know the ground upon which he claims to recover, that is sufficient. But in the count for money had and received no one can tell upon what ground a recovery is sought. Hence in those cases a specification is required setting forth the nature and amount of the plaintiffs claim. Otherwise, the plaintiff might introduce, under the money counts, .subsequently acquired demands. Saco v. Hopkinson, 29 Maine, 268; Osgood v. Holyoke, 48 Maine, 410; Forbes v. Hall, 51 Maine, 568; Drew v. Alfred Bank, 55 Maine, 450. Plaintiff nonsuit.

Cutting, Kent, Walton, and Barrows, JJ\, concurred.