Bicknell v. Cleverly
| Decision Date | 31 July 1878 |
| Citation | 125 Mass. 164 |
| Parties | William E. Bicknell v. Wilmot Cleverly |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Suffolk. Tort, by the assignee of the mortgagee of certain personal property, for its conversion. Answer, a general denial, and that the defendant, an officer, attached the property in question on a writ against the mortgagor.
At the trial in the Superior Court, before Bacon, J., the plaintiff put in evidence the following demand, made by him in due season upon the defendant: "I hereby demand of you the sum of two hundred dollars, which is the amount due me on a mortgage" (describing it). The plaintiff also put in evidence tending to show that he was the assignee of the mortgage, and had purchased it, and that there was due him upon it the sum of two hundred dollars.
The defendant put in evidence tending to show that the plaintiff indorsed a note for the accommodation of the mortgagor, and that the mortgage was assigned to him merely to secure him against liability as such indorser.
The judge instructed the jury that if the mortgage was assigned to and held by the plaintiff simply and solely to indemnify him, in case he should be called upon to pay as indorser on the note held by the mortgagee, then the demand made upon the officer was not in compliance with the statute, and was inoperative.
The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.
Exceptions sustained.
W. A Herrick, for the plaintiff.
C. Q Tirrell, for the defendant.
The only question in this case is as to the correctness of the instruction given to the jury.
When mortgaged personal property is attached by a creditor of the mortgagor, it is the duty of the mortgagee, in order to dissolve the attachment and retain his lien, to demand payment of the officer or attaching creditor of the amount for which the property is liable to him, and to "state in writing a just and true account of the debt or demand for which the property is liable to him." Gen. Sts. c. 123, §§ 62, 63.
Any material misstatement in the account, which tends to mislead or in any way to injure the attaching creditor, renders the demand inoperative to dissolve the attachment, and defeats the right of the mortgagee to maintain an action against the attaching officer.
But it has been held that innocent inaccuracies or errors in the account, resulting from accident or mistake, and which do not mislead or injuriously affect the attaching creditor, do not invalidate the demand or defeat the mortgagee's right to enforce his lien. Rowley v. Rice, 10 Met. 7. Harding v. Coburn, 12 Met. 333. Hills v. Farrington, 6 Allen 80. Folsom v. Clemence, 111 Mass. 273.
In the case at bar, the plaintiff's demand was for "the sum of two hundred dollars, which is the amount...
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