Averill v. Irish

67 Mass. 254

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1854
• Status: Published

Opinion

Metcalf, J.

All the objections, which the defendant has made in argument to the plaintiff’s right to retain his verdict, must be overruled, on the authority of previous decisions.

1. In Harding v. Coburn, 12 Met. 333, and in Codman v. Freeman, 3 Cush. 306, it was held, (notwithstanding a dictum to the contrary in an earlier case,) that when a mortgagee of goods demands payment of an attaching creditor or officer, under the Rev. Sts. c. 90, §§ 78, 79, he need not specifically designate the articles enumerated in the mortgage. On this point, Jones v. Richardson, 10 Met. 481, is not distinguishable from the case at bar.

2. 3. The objection, that the plaintiff cannot maintain this action, for the reason that the mortgaged goods were intermixed with other goods of the mortgagor, is answered by the decision in Harding v. Coburn, before cited. The same case answers also the defendant’s last objection. The mortgagee there stated to the officer, as the plaintiff did in the present case, that he had a mortgage of the property which the officer had attached, and referred to the mortgage, without further designating the property mortgaged. In a suit against the officer, he included in his writ, as the present plaintiff has done, some articles which were not covered by the mortgage. But he obtained a verdict for the value of the mortgaged articles, as the present plaintiff has, and he had judgment on that verdict, as plaintiffs have in other cases, when their proof supports only a part of their claim.

Exceptions overruled.