Jenks v. Smith

Headnote

Where a cause in a justice’s court was tried in the town of D., and the defendant justified under a chattel mortgage, executed by R, whose residence was not shown, but which had been filed in the clerk’s office of the town of D.—the plaintiff claiming the property under a sale on execution by a constable of the same town, and no objection appearing to have been made on the trial that the mortgage was not filed in the proper town; held that a court of review should intend that it was conceded on the trial that the mortgagor resided in D., and consequently that the mortgage was filed in the proper office.

On error from the supreme court. The facts, together with the opinion of the supreme court, may be seen in the report of the case, in 1 Denio, 580 . It is sufficient to state here, that the defendant in the justice’s court, where the cause originated, jus titled in an action of trespass for a quantity of hay, under a chattel mortgage executed by one Arnold, which had been filed in the office of the clerk of the town of De Ruyter: that the defendant prevailed before the justice, whose judgment was affirmed by the common pleas of Madison county; and that the supreme court reversed the judgment of the common pleas, on the ground that it did not appear in what town Arnold lived, and therefore it could not be said that the mortgage had been filed in the clerk’s office of the town where the mortgagor resided, as required by the statute. The cause, however, was tried before a justice of De Ruyter, and the constable who sold the property on the execution, under which sale the plaintiff claimed title, was an officer of that town, and the hay, when sold, was stated to have been situated near the dwelling house of Arnold. Moreover, no objection appeared to have been taken, that the mortgage had not been filed in the proper clerk’s office.