Gassett v. Sanborn

Merrick, J.

The motion for a nonsuit was very properly de nied. It was not necessary for the plaintiff to allege in his declaration in this action that the amount demanded by him of the defendant was a just and true account of the debt or de* mand for which the property attached was liable to him under the mortgage by force of which he claimed to hold it. The declaration sets forth in accurate terms the seizure, conversion and value of the goods and chattels alleged to have been taken by the defendant, and of the interest therein which is claimed by the plaintiff; and is much more particular and exact than is required in the form prescribed by the St. of 1852, c. 312. Being a full and legal statement of the injury of which he complains, and of the right he intends to assert, the plaintiff is permitted under it to prove all the facts essential to the maintenance of his action.

The first demand which was made upon the defendant, and which was produced in evidence upon the trial, without objection, was in all respects ample and sufficient; and was in such compliance .with the provisions of the statute as to render a dissolution of the attachment a necessary consequence of it, unless the amount due to the plaintiff was thereupon duly paid or tendered to him. The demand was in writing; and although the day on which it was made is not stated, it is said to have been about the time of the attachment; and no objection has been intimated that it was unseasonable or improperly delayed. It specified the date of the mortgage, and the exact amount secured by and due upon it, to wit, the sum of three hundred dollars, with interest thereon from the date named; and required the payment of the aggregate of those sums as the amount then justly due to the plaintiff. Nothing could be more explicit than this. Upon the trial the plaintiff produced evidence tending to prove that the amount thus presented to the defendant was just and true; and this has been affirmed by the verdict. Judging from the facts which. are stated in the bill of exceptions, we do not see how the jury could rightly have come to any other conclusion. The plaintiff produced the notes secured by the mortgage, without any indorsements thereon; and in the absence of any evidence to the contrary, the presumption of law is that they remained unpaid.

As the demand upon the defendant was sufficient to meet all the requirements of the law, and as the money due to the plaintiff was not paid nor tendered, the attachment upon the mortgaged property was thereupon, by operation of the statute, immediately dissolved. The subsequent retention and sale on execution of the property were a conversion of it to his own use, which made the defendant liable in an action of tort for its value.

Upon those considerations alone the plaintiff is clearly enti tied to judgment on the verdict rendered in his behalf; and there is therefore no occasion to discuss any of the other questions raised at the argument. In the view we have taken of the character and effect of the first demand, it is immaterial whether the second was within or beyond a reasonable time.

Exceptions overruled.