This is an action of assumpsit on account annexed, the first item of which is as follows : — “1870. To amount due on former account, $36.00.”
The plaintiff testified that he and the defendant looked over thpir accounts and found, that he owed the defendant $46.40, and that the defendant owed him $36.00; but that no settlement or adjustment of their accounts was then had. This was denied 'by the defendant, but the presiding justice, to whom the case was referred, without determining the controverted question of fact raised by the testimony in regard to this item, ruled that there was no sufficient description of the debt thereby sought to be recovered and no averment or statement of the nature of the indebtedness on which judgment could legally be rendered, and gave judgment for the remainder of the plaintiff’s claim.
The case was tried upon the general issue. The defendant is entitled in actions of assumpsit on the common counts, upon his motion, to a specification of the plaintiff’s claim. Rule XI, 37 Maine, 571. No bill of particulars was called for.
A common count on account annexed will give jurisdiction, though no account is annexed, nor any bill of particulars filed with the writ when the action is entered; and is amendable by adding such bill. Tarbell v. Dickinson, 3 Cush., 345; Burgess v. Bugbee, 100 Mass., 152; Butler v. Millett., 47 Maine, 492.
By pleading the general issue and going to trial without objecting to the want of a bill of particulars, the defendant waived his right to object for the want of it. Preston v. Neale, 12 Gray, 222.
It was determined in Saco v. Hopkinton, 29 Maine, 268, that an attachment upon the money counts or on an account annexed was invalid without a further and more definite specification of the claims sought, to be recovered. When the declaration shows that the suit is for different items, as for goods delivered, but fails to disclose what the goods were, the defendant may call *477for a bill of particulars or demur because tbe declaration contains no sucli bill.
Tbe distinction between proceeding to trial without calling for a bill of particulars and demurring to the declaration for the want of one is fully recognized. In Preston v. Neale, 12 Cray, 222, it was held that the want of a bill of particulars under the common counts could not be objected to after the trial had commenced. “The exception to the judge’s refusal to strike out the first count,” observes Metcalf, J., “for want of a bill of particulars, is overruled. The defendant’s proper course was either to move the court to order such a bill to be filed or to demur to the count.” In Bennett v. Davis, 62 Maine, 544, advantage of the want of a bill of particulars was taken by demurrer. Not so here.
In the present case, if the defendant had desired a bill of particulars, he had only to make the request. When no request is made on the trial, the presumption is that the defendant has no need of the information thus attainable. Exceptions sustained.
Walton, Dickerson, Barrows, Yirgin and Peters, JJ., concurred.