This is an action of trespass for the taking and carrying away of two' horses, which were proved to be the property of the plaintiff, but which, before the taking by *577the defendant, had been sold to one David Scott, Jr., and by him mortgaged to the plaintiff, to secure the payment of a promissory note for §112.
At the time of the delivery of the horses, the plaintiff said to Scott, that he did not part with the property in the horses, and that they were to be his until paid for. The horses were attached by the defendant, a deputy sheriff, as the property of Scott.
On this evidence, it was contended by the plaintiff, that he had never parted with his property in the horses, and that he was entitled to recover on his original title. But it is quite clear, that, the property did pass by the sale to Scott, and that afterwards it revested in the plaintiff under the mortgage ; and this he is estopped to deny by his acceptance of the mortgage. Indeed, it might be argued, that by the plaintiff’s acceptance of the. mortgage, his former title was extinguished. If a lessee for the term of twenty years accepts of a lease of the same land for ten years, by the lessee’s acceptance of the new lease, the term of twenty years is determined in law. Jacob’s Law Dict. by Tomlin, Estate.
But if the plaintiff’s original title were not extinguished, he certainly held the property under the mortgage, of' the existence of which he notified the defendant in writing, after the attachment; and this also would estop the plaintiff to set up his first title.
The only remaining question is, whether the notice, and demand of payment of the mortgage debt, were sufficient to dissolve the attachment, as the defendant at the time of the demand refused to pay it, and the same has never since been paid.
By the Rev. Sts. c. 90, § 79, the plaintiff was required, when he made the demand of payment of the money due to him, to state, in writing, a just and true account of the debt or demand for which the property was liable to him. And it appears by the written notice, that no such statement was made. The only statement in writing was, that the mortgage was given to secure the payment of Scott’s note to the *578plaintiff for one hundred and twelve dollars. This was not a statement of the amount then due on the note, but only a. description of what the mortgage was given for. But however this may be, it clearly was not a just and true statement of the money then due, for a part had been paid. It does not appear by the parol evidence, that any verbal statement of the amount due was made, but if there had been, it would not supply the defect in the written statement.
Exceptions overruled, and judgment for defendant.