136 Mass. 515 | Mass. | 1884
The burden was upon the plaintiff to prove that it had made the demand and given the notice prescribed by the Gen. Sts. c. 123, §§ 62, 63, (Pub. Sts. c. 161, §§ 74, 75,)
There was evidence, sufficient to submit to the jury, tending to prove that a notice in writing was delivered to the officer, which contained a statement purporting to be of a debt for which the mortgagee claimed that the property was liable to it, and which was sufficient in form; but there was no evidence that the statement was a just and true account of a debt for which the property was liable.
It is not the ease of a demand upon a debtor for the payment of a debt. The attaching creditor is a stranger to the debt, and it is because he is called upon to pay the debt of another, of which he has no knowledge, and for his information and protection, that the statute requires the mortgagee to accompany his demand with a just and true account of the debt. No inference that the account was correct, or that the debt was due, can be drawn from the fact that no objection was made by the attaching creditor or officer; he was not called on to object; and his testimony or admission that a statement was given to him cannot be evidence that it was a true statement. Nor is there any presumption, from the fact that a mortgagee made and delivered a statement, that it was true. The statute does not require the attaching creditor to pay what may be claimed in due form by the mortgagee, but only to pay a debt for which the property is liable, and of which a just and true statement has been made to him. See Bicknell v. Cleverly, 125 Mass. 164, and cases there cited. The burden was upon the plaintiff to prove, not only that it made a demand and delivered a statement sufficient in form, but that there was a debt for which the property was liable, and that the statement contained a just and true account of that debt. The court properly held that there was no evidence that such a statement had been delivered.
The defendant was allowed to prove, and to recover damages for, the depreciation in value of the property replevied on account of its not being in as good condition at the time of the trial as it was when replevied. The damages recoverable by the defendant are for the taking by the replevin. Gen. Sts.
Upon the question of damages only, the exceptions are sustained; and, as there was no evidence of damages for the taking, if the defendant will remit all but nominal damages, the entry will be exceptions overruled; otherwise, exceptions sustained; new trial as to damages only.
Ordered accordingly.
