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the attaching officer therefor until he has given him at least forty-eight hours' written notice of his claim, and the true amount thereof; and the officer or creditor may, within that time, discharge the claim by paying or tendering the amount due thereon, or he may restore the property. The officer may give the claimant written notice of his attachment; and if he does not, within ten days thereafter, deliver to the officer a true account of the amount due on his claim, he thereby waives the right to hold the property thereon; and if his account is false, he forfeits to the creditor double the amount of the excess to be recovered in an action on the case. If the creditor redeems such property, and it is subsequently sold by the officer, he shall, from the proceeds, first pay to the creditor the amount with interest paid by him to redeem, and apply the balance, if any, to the debt on which it was attached or seized on execution.

When a trustee' states in his disclosure that he had, at the time the process was served on him, in his possession, property not exempted by law from attachment, mortgaged, pledged, or delivered to him by the principal defendant to secure the payment of money due to him, and that the principal defendant has an existing right to redeem it by payment thereof, the court or justice before which the action is pending shall order that on payment or tender of such money by the plaintiff to said trustee within such time as the court orders, and while the right of redemption exists, he shall deliver the property to the officer serving the process, to be held and disposed of as if it had been attached on mesne process; and in default thereof that he shall be charged as the trustee of the principal debtor. This order shall be entered on the records of the court or justice. On the return of the scire facias against such trustee, if it appears that the plaintiff has complied with the order of the court or justice, and that the trustee has refused or neglected to comply therewith, the court or justice shall enter up judgment against him for the amount due and returned unsatisfied

11 R. S. 1888, c. 86, §§ 50, 51.

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on the execution, if there appears to be in his hands such an amount of the property mortgaged over and above the sum due him, but if not, then for the amount of said property exceeding that sum, if any; and this amount of excess shall, on the trial of scire facias, be determined by the court or jury.

§ 382. Massachusetts.'-Personal property of a debtor that is subject to a mortgage, pledge, or lien, and of which the debtor has the right of redemption, may be attached and held in like manner as if it were unincumbered, if the attaching creditor pays or tenders to the mortgagee, pawnee or holder of the property the amount for which it is so liable within ten days after the same is demanded, as hereinafter provided.

Every such mortgagee, pawnee or holder shall, when demanding payment of the money due to him, state in writing a just and true account of the debt or demand for which the property is liable to him and deliver it to the attaching creditor or officer. If the same is not paid or tendered to him within ten days thereafter the attachment shall be dissolved, and the property shall be restored to him; and the attaching creditor shall moreover be liable to him for any damages he has sustained by the attachment. If he demands and receives more than the amount due to him, he shall be liable for the excess, with interest thereon at the rate of twelve per cent. a year, to be re

1 Pub. Stats. 1882, c. 161, §§ 74-78. See Jones on Chattel Mortgages, § 583, for notes of cases arising under mortgages.

The provisions authorizing the attachment of personal property subject to a mortgage or pledge do not authorize the seizing of such property on execution in the first instance. The remedy of a judgment creditor is by attachment or trustee process. The property can not be taken on execution unless it has been previously attached on mesne process. Lyon v. Coburn, 1 Cush. (Mass.) 278.

A pledgee is entitled to recover of

an officer who has unlawfully attached the goods pledged, not merely the amount of the debt secured by the pledge, but the full value of the goods. The rule is founded upon the consideration, that for all beyond the debt, for which the goods are pledged, the pledgee is responsible to the pledgor. Pomeroy v. Smith, 17 Pick. 85.

An attachment of property conveyed by a bill of sale absolute in form, but really given as collateral security, can be dissolved only by a demand in accordance with the statute. Putnam v. Rowe, 110 Mass. 28.

covered by the attaching creditor in an action of contract for money had and received.

When property attached and redeemed as aforesaid is sold on mesne process or on execution, the proceeds thereof, after deducting the charges of the sale, shall be first applied to repay to the attaching creditor the amount so paid by him with interest.

If the plaintiff, after having redeemed the goods, does not recover judgment in the suit, he shall nevertheless be entitled to hold the goods until the defendant repays to him the sum which he paid for the redemption, or as much thereof as the defendant would have been obliged to pay to the mortgagee, pawnee or holder of the goods, if they had not been attached, with interest from the time when the same is demanded of the defendant.

Under this statute one to whom the pledgee of goods has with the pledgor's consent consigned them for sale, can make demand in his own name for the payment of the amount for which they were pledged, upon an officer who has attached them on a writ against the pledgor; and, on refusal of the officer to pay the amount or release the attachment, can in his own name maintain an action against him for the conversion.' Such consignee has the right of possession; and prima facie that is sufficient to enable him to maintain an action for the possession, or for any injury to the goods. As against trespassers, and those showing no title or right, such possession is sufficient for all purposes.

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A contract by which a debtor undertakes to give collateral security to certain of his creditors, by agreeing to hold personal property purchased with money borrowed from them, in trust for their security, does not protect the property from. being seized upon attachment or execution by the general creditors of such debtor. Such a trust is an evasion of the general policy of the laws respecting pledges and mortgages.'

1 Clark v. Dearborn, 103 Mass. 335. 2 Per Wells, J., in Clark v. Dearborn, 103 Mass. 335.

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482.

Huntington v. Clemence, 103 Mass.

§ 383. Michigan.'-When goods or chattels shall be pledged, by way of mortgage or otherwise, for the payment of money or the performance of any contract or agreement, such goods or chattels may be levied upon and sold on execution against the person making such pledge, subject to the lien of the mortgage or pledge existing thereon; and the purchaser at such sale shall be entitled to pay to the person holding such mortgage or pledge the amount actually due thereon, or otherwise perform the terms and conditions of the pledge, at any time before the actual foreclosure of such mortgage or pledge; and on such payments or performances, or a full tender thereof, shall thereupon acquire all the right, interest and property which the defendant in execution would have had in such goods or chattels if such mortgage or pledge had not been made.

There are also provisions for the attachment of property subject to a mortgage or pledge by the process of garnishment. When it appears that a garnishee holds property of the principal defendant subject to any pledge, lien or mortgage, the court may order him to deliver such property to a commissioner or receiver, to be by him disposed of under the direction of the court. The surplus proceeds, after paying the amount of such incumbrance, are applied upon any execution that may be obtained in favor of the plaintiff against the garnishee. The plaintiff may also, by order of court, be allowed to pay or tender the amount due to the garnishee."

§ 384. Minnesota.-When goods or chattels are pledged for the payment of money, or the performance of any contract or agreement, the right and interest in such goods of the person making such pledge may be sold on execution against him, and the purchaser shall acquire all the right and interest of the defendant, and be entitled to the possession of such goods

13 Comp. Laws 1897, § 10,318.

Old Second Nat. Bank v. Williams,

23 Comp. Laws 1897, § 10,607. See 112 Mich. 564, 71 N. W. Rep. 150. G. S. 1894, §§ 5327, 5458.

and chattels, on complying with the terms and conditions of the pledge.

Whenever it appears that any property or effects in the hands of the garnishee, belonging to the defendant, are properly mortgaged, pledged, or in any way liable for the payment of any debt due to said garnishee, the plaintiff may be allowed, under a special order of court, to pay or tender the amount due; and the garnishee shall thereupon deliver the property or effects as herein before provided, to the officer holding the execution, who shall sell the same as in other cases, and out of the proceeds shall repay the plaintiff the amount paid by him to the garnishee for the redemption of such property or effects, with legal interest thereon, and apply the balance upon the execution.

§ 385. New Hampshire.'-Any personal property not exempt from attachment, subject to any mortgage, pledge, or lien, may be attached as the property of the mortgagor, pledgor, or general owner, the attaching creditor or officer paying or tendering to the mortgagee, pledgee, or holder, the amount for which said property is holden. Such creditor or officer may demand of the mortgagee, pledgee or holder an account, on oath, of the amount due upon the debt or demand secured by such mortgage, pledge, or lien, and the officer may retain such property in his custody until the same is given without tender or payment, and if such account is not given within fifteen days after such demand, or if a false account is given, such property may be holden discharged from such mortgage, pledge or lien.

It is also provided that personal property subject to any mortgage, pledge, or lien, may be taken in execution in the same manner it may be attached, and may be sold in the same manner as other personal property, and the creditor and officer shall have the same right to demand an account of the amount due, and to hold the same, if no account or a false account is

1P. S. 1901, c. 220, §§ 17, 18; G. L. 1878, c. 224, §§ 17, 18, c. 236, §§ 3–5.

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