Citizens' National Bank v. Oldham

W. Allen, J. 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,) [517] which provide 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,” 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. [518] c. 143, § 13. The condition of the replevin bond is to return the property in case such shall be the final judgment. § 3. This means to- return it in like good order and condition as when taken; and, if the property should not be in such condition, the defendant would not be obliged to receive it, but could recover its value upon the bond. The court erred, therefore, in allowing such deterioration in value as damages to be recovered in the replevin suit.. The defendant’s remedy is upon .the bond. The matter was so fully considered in Stevens v. Tuite, 104 Mass. 328, that it is only necessary to refer to that case. 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.