We have not thought it necessary to consider very particularly the objections taken to the validity of the mortgage given to the plaintiff on the 21st of January 1841, because he has an independent source of title, upon which he may rely, in the transfer and delivery of the property by way of pledge, on the 11th of January 1842, which was the foundation of the verdict he obtained, and in reference to which *12the instructions of the presiding judge are deemed correct. Upon the right of property, under these instructions, and the finding of the jury, the plaintiff may well maintain his claim.
A distinct and independent question, however, is made as to the right to maintain this action, arising from an alleged want of a proper demand of the property, and a statement ot a just and true account of the debt for which the plaintiff had a lien upon it.
1st. It is said that the demand was restricted to the property held by the plaintiff under a mortgage, and cannot apply to the property subsequently transferred by the pledge of January 11th 1842. 2d. That the demand was not accompanied by a true and just account of the debt of the plaintiff, for which the property was pledged.
As to the first, if it had been, as seemed to be assumed in the argument, a demand restricted exclusively to property held under a mortgage, it would have been a fatal objection to the demand. But, upon carefully scrutinizing the writing delivered to Adams as a demand, we think its language is not thus restricted to property held by the mortgage of January 1841, but may be reasonably held to include any lien he might have by way of pledge.
The second point presents a question of greater difficulty, upon which we believe there has been no previous decision. By the Rev. Sts. c. 90, <§> 78, personal property that is subject to a lien may be attached, the attaching creditor paying or tendering, to the person having the lien, the amount for which it is liable to him. Section 79 requires that 11 the mortgagee, pawnee or holder 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.” The account stated by the plaintiff was erroneous, inasmuch as it stated an excess in the debt, beyond the true amount, in the sum of fifty two dollars. This error, it is contended, is fatal to the plaintiff’s action. The presiding judge ruled, that it the jury were satisfied that the plaintiff intended truly to *13state the sum justly due, and omitted to deduct the sum of fifty two dollars by mistake, and if neither the creditor nor officer offered to pay the whole or any part of the sum demanded, the error in the amount stated would not invalidate the demand.
In the view we have taken of the statute on this subject, we apprehend that this ruling was somewhat too favorable to the plaintiff. It might do injustice to the attaching creditor, under circumstances where the other party should be held to bear the loss; the injury arising through the default of the creditor holding the pledge or other lien. The ruling of the judge, that the error should be one arising from accident or mistake, in order to excuse the defect, is well stated; and this we think should be shown. But the mere proof of honest intention to state a true account is not enough. The creditor must go further, and show that no damage has accrued to the other party by reason of the mistake. If he can show that in no possible event the attaching creditor could have been damnified by the error, his lien shall not be thereby defeated; as, for instance, if he can show that the value of the goods amounted to a sum altogether less than the actual amount of the lien, so that, if a just and true account had been stated, the attaching creditor could have had no interest in any surplus, and would not have discharged the lien by payment, or that, if he had done so, it would have been prejudicial to his interest. We think the rule may be stated thus : To avoid the objection, that the statement of the debt is not true and just, by reason of overstating the sum due, it must appear, 1st. that the error resulted from accident or mistake; 2d, that the value of the property attached was less than the just and true sum for which it was pledged, and therefore the attaching creditor was not injuriously misled by the error, and has not suffered any pecuniary loss thereby. To this extent, we think the pledgee, who has innocently rendered an incorrect account, may be relieved ; but not further. The instructions being erroneous in this particular, the verdict must U. set aside and a New trial granted.