
    Ebenezer Eaton versus William Whitaker.
    The plaintiff having declared “ that the defendant, administrator, &c. being indebted for money had and received by the intestate, promised ” &c.— amended by declaring that “ the intestate being indebted for money had and received by him, promised,” &c. Held, that the amendment was for the same cause of action as the original count.
    Where an action was brought up by a demurrer in the Court of Common Pleas, the defendant having liberty to waive his plea and plead anew as of the first term, it was held3 that he could not plead in abatement the insufficiency of the service, but that he must plead to the merits.
    Where a note payable at a day not yet arrived is laid before commissioners on an insolvent estate and disallowed, and thereupon a suit is brought against the administrator, pursuant to St. 1784, c. 2, it is not sufficient to declare generally as upon a debt already due, but the declaration should set forth the note as it is, and the proceedings before the commissioners, notice, &c.
    Assumpsit. The original count in the writ alleged, that Whitaker, administrator &c. of Davis Packard, on the 27th of June, 1827, the date of the writ, being indebted to the plaintiff in the sum of 2000 dollars for so much money before that time had and received by Packard, promised the plaintiff to pay him the same sum on demand; yet, though often requested, neither Packard in his lifetime, nor, after his death, the defendant, had paid any part of that sum.
    The writ commanded the sheriff &c. to summon the defendant. The officer returned that he attached a chip, the property of the defendant, and gave him a summons.
    The action was entered in the Court of Common Pleas at August Term 1827, and at the following term in November a demurrer was filed for the purpose of bringing up the case to this Court, the parties reserving liberty to plead anew.
    At the first term in this Court the plaintiff obtained leave to amend, upon the common rule ; which he did by striking out the original count, and substituting another, in which it xvas set forth, that Packard, on the 1st day of August, 1825, being indebted to the plaintiff in the sum of 2000 dollars for so much money had and received by Packard, promised the plaintiff to pay him that sum on demand ; yet, though requested, neither Packard in his lifetime, &c.
    ' The defendant had leave to plead anew, as of the first term, and he offered a plea in abatement, alleging that the ofiicer mac*e service °f the writ by attaching the property of the defendant and by giving him a summons. The plaintiff objected that it was too late to plead in abatement. The defendant contended,, that under the leave to plead anew, he had a right to file such a plea ; but the judge was of opinion that the leave granted was to be confined to some matter relating to the merits of the declaration as it should be amended, and did not warrant the filing of a plea in abatement of the writ; which remained in its original form. No such plea was offered in the Court of Common Pleas. So the plea in abatement was rejected. The defendant then pleaded the general issue.
    
      Sept 23rd
    
    The plaintiff offered in evidence a note made to him by Packard, dated June 28, 1824, for 2000 dollars, payable in five years, with interest semiannually ; and also proved the death of Packard, the insolvency of his estate, the presentation of this claim to the commissioners of insolvency, their rejection of it because they thought the plaintiff ought to be confined to a mortgage given him by Packard as security for the note, and notice, pursuant to the statute,' of his intention to prosecute his claim at common law. This action was accordingly brought to recover the difference between the amount of the debt and the value of the mortgage. The defendant objected that the note was not due and payable until 1829, and was not competent evidence to support the count for money had and received. The judge however admitted it, and the jury gave a verdict for the plaintiff for 667 dollars, as the amount of the debt above the value of the mortgage.
    The defendant moved for a new trial on account of these opinions and the admission of this evidence.
    Brooks, for the defendant.
    The original count alleges the
    claim to have arisen after the death of the intestate, and the promise to have been made by the defendant personally, so that he would be charged de bonis propriis; the new count alleges the debt to have been due from the intestate in his lifetime, and the promise to have been made by him ; the amendment therefore sets forth a new cause of action, and ought no! to have been allowed. Barry v. Rush, 1 T. R. 691; Jennings v. Newman, 4 T. R. 347 Rose v. Bowler, 1 H. Bl. 108; Brigden v. Parkes, 2 Bos. & Pul. 424; Myer v. Cole, 12 Johns. R. 349; 1 Chit. Pl. 204.
    
      Sept. 26th
    
    The defendant having leave to plead anew as of the first erm, had a right to plead as he should think proper. It was unnecessary to resort to a plea in abatement until the amendment was made, for the defendant before relied on other ground.
    The declaration alleges a promise to pay on demand, but the note was not due when the action was commenced. There is therefore a variance. The declaration ought to have been special, setting forth the proceedings before the commissioners.
    
      Bigelow, contra,
    
    to show that the original and amended counts were for the same cause of action, referred to 1 Chit. Pl. 205; Whitaker v. Whitaker, 6 Johns. R. 112; Carter v. Phelps’s Adm. 8 Johns. R. 343.
    If the service of the writ had become bad in consequence of the amendment, the defendant ought to have been allowed to plead in abatement; but it did not, for the defect was apparent at the first term in the court below ; the defendant was therefore justly required to plead to the merits. Moody v. Blake, 6 Mass. R. 459, as corrected in the Advertisement to vol. 7.
    Demands payable at a future day are to be presented for allowance to the commissioners on an insolvent estate. The statute considers such demands (except where they depend on a contingency) as due at the time of the insolvent’s decease. It is not usual to set out the proceedings before the commissioners, but to give all the facts in evidence. The allegation of a promise to pay on demand is only matter of form, as time does not enter into the substance of the contract. Matthews v. Spicer, 2 Str. 806; Stafford v. Forcer, 10 Mod. 313; Cheetham v. Lewis, 3 Johns. R. 42; Tiffany v. Driggs, 13 Johns. R. 253. An action for money had and received resembles a bill in equity, and is not liable to technical objections which might be made to special counts. 2 Stark. Ev. 108.
   Per Curiam.

The amended count and the original one are for the same cause of action.

The leave granted to plead anew as of the first term has reference to a new plea to the merits. It was too late to plead in abatement.

The declaration alleges a promise to pay a debt on demand, but the evidence is of a promise to pay at a future day, which has not arrived. This would be a fatal variance, but for the statute. The estate was represented insolvent, and the note, though not due, was laid before the commissioners. They ought to allow such debts, rebating the interest where it is proper This claim was rejected, and it became necessary to bring a suit at law, as allowed by the statute. The proper mode of declaring in the present case was, to set forth the note as it is, and to state that it has been laid before the commissioners and been rejected, &c. whereby an action has accrued, &c.

The verdict must be set aside, and the plaintiff has leave to amend, upon paying costs. 
      
       See Fry v. Evans, 8 Wendell, 530; Clark v. Lamb, post 515, note 1.
     
      
       See Harding v. Smith, 11 Pick. 480.
     
      
       See Revised Stat c. 68.
     