1. It was competent for the plaintiff to introduce evidence to show that the attachment of the property was dissolved by neglect of the officer to keep possession of the same.
2. No statement of the amount due on the plaintiff’s mortgage was necessary to be made before commencing the action, if in fact there was no existing attachment.
3. The ruling of the court upon the question of the delivery of the mortgage was erroneous. It was error to rule • as a matter of law that the evidence as to the previous agreement for a mortgage, and the making and delivery to the town clerk for record, amounted to a valid delivery. Such delivery, based upon evidence of this character, must be found by the jury. It was for the jury, under proper instructions, to say whether, upon the evidence as to the previous agreement, and the acts of the parties, they were satisfied that the making of the mortgage and the delivery of the same to the town clerk was an act authorized by the plaintiff, and was done in pursuance of a previous agreement and authority so to do. The case of Thayer v. Stark, 6 Cush. 11, which perhaps is the most favorable case for the plaintiff, would require at least this much.
4. If the jury find the making of the deed, and delivery thereof to the town clerk, to have been in pursuance of a previous agreement between the parties, and thus an authorized delivery, the facts stated show sufficiently that the mortgage was duly recorded, or that enough was done to secure to the mortgagee the benefit of a recorded mortgage.
For the reasons stated under the third point, the
Exceptions must be sustained.