125 Mass. 164 | Mass. | 1878
The only question in this case is as to the cor rectness of the instruction given to the jury.
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 due me on” the mortgage. It would have been more formal and proper if it had stated that he held the mortgage as security for his liability as indorser of a note upon which two hundred dollars was due. But the error or informality of the statement did not tend to mislead or injure the attaching creditor. It has been held that, in cases of mortgages given to indemnify the mortgagees against future contingent liabilities, a creditor of the mortgagor may make a specific attachment of the mortgaged property, instead of resorting to the trustee process; and that in such a case the mortgagee must make a demand and notice which should be adapted to the character of his mortgage. Haskell v. Gordon, 3 Met. 268. Codman v. Freeman, 3 Cush. 306. Hanson v. Herrick, 100 Mass. 323. Putnam v. Rowe, 110 Mass. 28. But in such a case the creditor can only retain his attachment by paying or tendering to the mortgagee the amount for which the property is liable to him, within ten days after the same is demanded. Gen. Sts. c. 123, §§ 62, 63. The statutes do not authorize the creditor or the court to substitute any other security
In this case, therefore, if the plaintiff had in his demand stated specifically that the mortgage was held to indemnify him against his liability as indorser of a note upon which the sum of two hundred dollars was due, the attaching creditor could have only preserved his attachment by paying or tendering that sum. He was not in any way injuriously affected by the inaccuracy of the plaintiff’s statement.
We are therefore of opinion that the ruling of the Superior Court was erroneous. Exceptions sustained.
