Kent v. Reed , 82 Mass. 282 ( 1860 )

Dewey, J.

The right of immediate possession to the property alleged to have been taken by the defendant was duly established by the plaintiff, by proof of the happening of the contingency stated in the mortgage from Lewis Kent to the plaintiff’s testator, namely, an attachment of the property by a creditor of the mortgagor. That such attachment had been made was admitted at. the trial.

No question is presented upon the bill of exceptions upon the point now proposed to be argued by the counsel for the defendant, that where personal property held under a mortgage is attached, to entitle the mortgagee to maintain an action therefor it is incumbent on him to prove the making a statement of the amount of his claim, and a demand of payment therefor, and a neglect of the officer to comply with the same, agreeably to the provisions of the statute. It does not appear that any such instructions were refused to be given, or that any error occurred in the ruling of the court in this respect. We must presume that proper instructions on this point were given. The bill of exceptions does not purport to give all the instructions, but states the contrary. Aside from that point, which for the reasons just stated is not open here, we perceive no objection to be relied upon or well taken. Exceptions overruled.