Citizens' Nat'l Bank v. Oldham

• Decision Date: 29 February 1884
• Citation: 136 Mass. 515
• Parties: Citizens' National Bank v. Jonathan Oldham
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

136 Mass. 515

Citizens' National Bank v. Jonathan Oldham

Supreme Court of Massachusetts

February 29, 1884

Suffolk. Replevin of six United States mail wagons. Trial in the Superior Court, before Brigham, C. J., who allowed a bill of exceptions, in substance as follows:

The defendant is a deputy sheriff, and seized and held the wagons as the property of Hiram Littlefield, by attachment under a writ duly brought against him and A. E. Boone, which action is still pending in this court. The date of the attachment was October 10, 1881; and of the replevin writ, and taking under it, October 27, 1881. The plaintiff claims under a mortgage made to it by said Littlefield; and it contends that this was either duly recorded, or that, at the time of attachment, the property was in the possession of the plaintiff for condition broken.

The defendant, called as a witness by the plaintiff, testified that he could not say whether he received notice of the mortgage; that he was under the impression that he had a notice, and, if he had one, it was in writing; that, if he had it, he gave it to the attorney of the attaching creditor that he could not swear what notice he did have; that he thought he received a mortgagee's notice; that he was familiar with such notices, and his impression was that it was sufficient; that he had been notified to produce such a notice, had searched for such a notice, and could not find it; and that, on the next day after the attachment, the fact of the mortgage was talked of and considered in his hearing between the plaintiff's agent, said Boone, and the attorney of the attaching creditor, with reference to a settlement. This defendant's attorney, who was also the attorney of the attaching creditor, was notified before trial to produce a notice of said mortgage and demand, but did not do so, and said he had never received one. There was no other evidence in respect to notice and demand.

The plaintiff's evidence also showed that the wagons replevied had been in constant use, since the taking by replevin, in transporting the United States mails to and from the post-office and railroad stations in Boston.

The defendant, against the plaintiff's objection, introduced evidence tending to show that the wagons replevied were not now in as good condition as when taken by the replevin, and on that account were of less value; and evidence of the amount of such depreciation; and offered no evidence of other damage, excepting of use and want of repair.

The judge instructed the jury that the defendant, being a deputy sheriff, and having, on a sufficient writ, attached the replevied property, the plaintiff, being mortgagee of the same property, having failed to state, in writing, and deliver to the defendant, a just and true account of the debt for which the attached property was liable to the mortgagee had a right, until such a statement was made and delivered to him, to hold the possession of such attached property, and the same could not be replevied by the mortgagee under its mortgage; that the plaintiff could not maintain this action and that special damages to the attached property, arising out of plaintiff's treatment of it, after it was replevied, either by the use of it so as to cause wear and deterioration, beyond that...