170 Mass. 523 | Mass. | 1898
The principal question in this case is, What is the meaning of the Pub. Sts. c. 161, § 75, as applied to the facts disclosed by the evidence? This statute has been considered and the cases decided under it have been referred to in two recent cases, Wilson v. Crooker, 145 Mass. 571, and Ashcroft v. Simmons, 151 Mass. 497. It can hardly be doubted that the Legislature had two distinct purposes in framing the statute, one to enable creditors with reasonable facility to resort by attachment to mortgaged personal property for the collection of debts against the mortgagor, and the other to secure to mortgagees perfect protection of their security if they comply with the requirements of the statute. The whole scheme indicates a purpose to give to an attaching creditor the means of proceeding intelligently in determining whether to continue or to abandon his attachment. We must assume that the Legislature was not ignorant of the fact that mortgages of personal property are sometimes fraudulently made and held, and that they framed the statute in reference to such mortgages as well as others. The provision of the statute is that the mortgagee “ shall, when demanding payment of the money due to him, state in writing a just and true account of the debt or demand for which the property is liable to him, and deliver it to the attaching creditor or officer.” This language implies that he has to do something more than to demand payment of the money due to him. The words, “ state in writing a just and true account,” indicate a purpose on the part of the Legislature to secure for the attaching creditor definite and particular information. The cases have construed the statute liberally in favor of mortgagees who have made innocent mistakes in attempting to state accounts, but the general purpose of the requirement to give the creditor definite and valuable information is obvious. In the present case the demand is more barren than any that has ever been held sufficient by this court.
We are of opinion that the defendant could not waive any of the requirements of the statute in regard to notice without the consent of the attaching creditor. He was acting merely in his official capacity as a deputy sheriff in making the attachment. The notice given by the mortgagee was for the benefit of the attaching creditor. The case comes within the principle of the decision in Cutler v. Boyd, 124 Mass. 181. It follows that a verdict was rightly directed for the defendant.
This view of the law makes it unnecessary to consider the effect of the failure of the defendant to comply with the 46th Rule of the Superior Court in regard to notice of the motion to set aside the special findings. It appears that a motion was made and a hearing was had upon it, at which the plaintiff’s counsel was present, and that the judge set aside the findings as against the evidence. The verdict was rightly ordered, without regard to the question whether there was such a notice and hearing as warranted the judge in setting aside the findings.
Judgment on the verdict.