This is an action of replevin, and the plaintiff s claim to the property replevied is founded on two mortgage deeds from Eli Robbins, against whom the defendant had an execution and writ of attachment, under which he justifies the taking of the same as Robbins’s property ; and the question is, whether the demand and notice left with the defendant contained a just and true account of the debt, for which the property was liable to the plaintiff, as required by the Rev. Sts. c. 90, § 79.
It was ruled at the trial, that the demand and notice were good and sufficient as to the first mortgage, and insufficient as to the other ; and a verdict was returned for the plaintiff for the property described and conveyed by the first mortgage only. This ruling we think correct, and according to a reasonable construction of the statute.
The argument for the defendant is, that the plaintiff was bound to state a just and true account of the debts or demands due on both mortgages ; and that any defect in the statement, as to either mortgage, would be insufficient and null as to both. But we think this would be giving a too strict and literal construction to the statute. The demands are distinct, and the defendant and the attaching creditor would have had the right to tender the amount due on the mortgage on which the plaintiff had a verdict, without any regard to the debt due on the other mortgage ; so that the uncertainty as to what property was conveyed by one mortgage, and what by the other, could have been of no consequence ; for if the defendant had tendered the amount correctly stated, no action could be maintained'against him for any part of the property. We think, therefore, that by a fair and reasonable construction of the statute, the amount due on one mortgage being correctly stated, the defendant was bound to pay or tender the amount due, without regard to the claim (which was defectively stated) on the other mortgage.
Judgment on the verdict.