
    Job E. Hunt vs Wright W. Williams.
    A mortgagee of chattels cannot replevy them from an officer who has attached them as the property of the mortgagor, without first making the demand required by the Gen. Sts. c. 123, §§ 62, 63, although the mortgage provides that upon the chattels being attached be may take immediate possession.
    Replevin of household furniture. At the trial in the superior court, before Rockwell, J., it appeared that Harriet N. Cooper, the owner of the furniture, mortgaged it to the plaintiff by a deed which provided that the mortgaged property might remain in the possession of the mortgagor until default, but that if it, or any part of it, should be ’attached by any other creditor or creditors of the mortgagor, then it should be lawful for the mortgagee to take immediate possession of the whole thereof to his own use; that, while the mortgaged property was in the possession of the mortgagor, it was attached by the defendant, who was a constable of the city of Boston, on a writ against the mortgagor ; and that, before replevying it, the plaintiff made no demand on the defendant or attaching creditor, under the Gen. Sts. e. 123, §§ 62, 63, for the payment of the amount due on the mortgage. The judge ruled that notwithstanding the terms of the mortgage such a demand was necessary; the jury returned a verdict for the defendant and the plaintiff alleged exceptions.
    
      
      R. Morris, for the plaintiff.
    «7. B. Richardson, for the defendant.
   By the Court.

Personal property of a debtor that is subject to a mortgage, and of which the debtor has the right of redemption, may be attached as if it were unincumbered. In such case, the mortgagee cannot maintain an action to recover possession of the same, or for damages for its conversion, unless he states in writing a just and true account of the debt or demand for which the property is liable to him, and demands payment thereof of the attaching creditor or officer. Gen. Sts. c. 123, §§ 62, 63. The fact that the mortgage contains a stipulation that, if the property is attached by any other creditor, it shall be lawful for the mortgagee to take immediate possession of the mortgaged property, does not take the case out of the operation of the statute. This question was considered and decided in the case of Wing v. Bishop, 9 Gray, 223, which is conclusive of the case at bar. Exceptions overruled.  