Several questions have been raised, upon the argument of this case, some of which it has been found unnecessary to decide. Of the latter, is that as to the place of recording the mortgage bearing date April 3d, 1848. This mortgage was formally executed and delivered by the mortgagor, while he resided in Boston 5 but he was described therein as a resident of Lowell, (probably because" about to remove there,) and having actually removed to Lowell, the mortgage was there recorded, not having been previously recorded in Boston. Was this in accordance with the provisions of the Rev. Sts. c. 74, § 5? The statute requires a mortgage to be recorded in the town where the mortgagor resides. But whether at the place where he resides when the mortgage is executed, or when it is recorded, is left to construction. In the *220earlier statute of 1832, c. 157, this was made certain ; it being there provided, that the mortgage should be recorded in the place where the mortgagor shall reside “ at the time of making the same.” This latter clause has been stricken out in the revised statutes. Whether this was done for precision merely, or was intended to change the law in a material point, is left wholly in doubt, and has rendered that uncertain which was before certain.
Without deciding the point, we leave it, as, upon another and independent ground, the defence to the present action is well maintained. To entitle a mortgagee to maintain an action against an attaching officer, a demand must be made in a reasonable time upon such officer, giving him notice of the lien, and of the amount of the same. In reference to this provision, the court have been disposed to give it a liberal construction, in favor of the mortgagee, and not to set aside the lien merely by reason of some slight inaccuracy in the form of making the demand, or in the statement of the amount due, provided the statement be made in good faith, and in a reasonable time, and it can be shown that the attaching creditor has been in no way damnified by the error. To that effect was the decision in the case of Rowley v. Rice, 10 Met. 7.
But the present case differs materially from that. The lien set up by the mortgagee in her notice and demand, was that arising under a mortgage to her bearing date the 21st of July, 1848, whereas upon the trial, she relied solely upon a mortgage executed on the 3d of April, 1848, and recorded July 7th, 1848. If there was nothing more than a discrepancy of date; if there had, in fact, been but one mortgage held by the plaintiff, for the sum stated in her demand and notice; the case would present itself under a very different aspect from that which it now assumes. The facts in the present case show, that the plaintiff held such a mortgage as was recited in her demand. She held not only the mortgage of the 3d of April, but also another mortgage of the 21st of July. She elected to put forth the latter mortgage as her sole lien, to defeat the attachment. Now it might well be, that the attaching creditor had ample ground to dispute the mortgage of the 21st of July *221. as a fraudulent mortgage against creditors, or for some other sufficient cause. He might safely proceed with his attachment, if the mortgagee had no other prior lien. But if a mortgagee can, at the trial, waive his lien under the mortgage set up in his notice and demand, and rely upon another and different lien, under a mortgage of a different date, great injustice may be done to the attaching creditor, and he may be charged in costs and damages, in a case where upon a statement of the lien now relied upon, he would at once have relinquished his attachment and surrendered the property.
The demand and notice of the lien of the plaintiff did not embrace the mortgage of the 3d of April, 1848, and the plaintiff under the notice given had no right to set up that mortgage to defeat the attachment.
Exceptions sustained and a new trial ordered.