| Mass. | Jun 26, 1882
The statutes provide two modes in which a creditor of a mortgagor may make an attachment of mortgaged personal property. He may attach it in the usual form, as if it were unincumbered, provided that he pays to the mortgagee the amount for which it is liable, within ten days after due demand is made upon him. Or, when the property is in the possession of the mortgagor, he may attach it as if it were unincumbered, and summon the mortgagee as trustee in the same action. Gen. Sts. c. 123, §§ 62-71. Pub. Sts. c. 161, §§ 74-83.
If the last-named course is adopted by the creditor, the mortgagee is required to appear and submit himself to examination touching the consideration of his mortgage and the amount due thereon, and the creditor may, if he so elect, require the question
In the case before us, the plaintiffs held a valid mortgage upon the stock in trade and fixtures of one Jordan. One Bassett, a creditor of the mortgagor, who was in possession of the mortgaged property, caused it to be attached by the defendant, and the mortgagees to be summoned as trustees under the Gen. Sts. c. 123, § 67. The mortgagees appeared and filed a general answer that they had no goods, effects or credits of the defendant Jordan in their hands or possession. They were afterwards discharged by the court. Although the answer in this form was irregular, yet, by appearing and answering, they submitted themselves to examination by the court, or by the plaintiff in that suit. It was the right of the plaintiff to ask such questions as he saw fit touching the consideration of the mortgage and the amount due thereon. If he wished to dispute the validity or amount of the mortgage, it was his duty, in the exercise of proper diligence in pursuing the remedy he had chosen, to examine the trustees. His failure to do so, and the fact that he made no objection to the discharge, was equivalent to a discontinuance as to the trustees, and the court rightly ordered that they be discharged. Such discharge put an end to the creditor’s right to pursue the remedy he had adopted, and worked a dissolution of his attachment. Upon such dissolution, the mortgagees became entitled to the money, which, after the sale, the defendant held in place of the attached goods, and may maintain this action therefor, unless there is some other defence.
But the defendant contends that the action is prematurely brought because there was a second attachment upon the goods which is still existing, the suit in which it was made being still pending. The facts are, that while the defendant held the goods under the first attachment, namely, on July 31, 1880,
Judgment for the plaintiffs affirmed.