Knight v. Nichols , 34 Me. 208 ( 1852 )

The opinion of the Court, Tenney, Howard, Rice and Appleton, J. J., was drawn up by

Appleton, J.

This was an action of replevin, in which the plaintiff claimed title under one Bailey, by virtue of a bill of sale of the articles replevied.

The defendant, a deputy sheriff, justified the taking of the same, under a writ of attachment against said Bailey, as whose property he had seized them.

The plaintiff’s bill of sale Avas accompanied by a delivery of the articles included in it, and ivas prior in time to the defendant’s attachment. There was evidence tending to show that the plaintiff’s bill of sale was given him as security for a debt due from Bailey to him, and the Court was requested to instruct the jury that if the bill of sale was given as security for a prior debt, that in such case the conveyance, though not in form, yet in fact, would be a mortgage, and should be recorded. This request was declined and the jury were instructed that the bill of sale being absolute, need not be recorded to become effectual against the attachment, if the transaction was in good faith. To this instruction the plaintiff excepted. Of the correctness of this instruction there can be no doubt. Bills of sale are hot required to be recorded. Mortgages of personal property are alone within the provisions of R. S. chap. 125, <§> 32. Bills of sale, for whatever purposes intended,' yet if not mortgages in form, need not be recorded. Whether the adoption of this course might or might not be considered indicative of fraud, would be a question properly to be submitted to a jury. Indebtedness, and an intention to secure merely, would not be a sufficient consideration for an absolute bill of sale, when the debt remained outstanding and the vendee was under no obligation to pay it. Whether the transaction would constitute an equitable mortgage, which upon proper proof a Court of equity might enforce as between the parties, it is not now necessary to consider or determine. But however that might be, it would afford no reason why the bill of sale should be recorded. It would not for that cause be within the statute, the object of which was to protect the respective rights of mortgager and mortgagee and to give notice to the public, so that a creditor, seeking to enforce his rights, might know where and to whom to apply for the purpose of ascertaining such facts as he might deem necessary for the prudent enforcement of his claims. The first exception is therefore overruled. A deposition offered by the defendant was excluded, and exception was taken to that exclusion. It is insisted that this deposition was inadmissible, because it did not state in the caption at whose request it had been taken. But in R. S. chap. 133, <§, 17, the facts required to be stated therein are specifically set forth and this is not among those statutory requirements, and we have neither the power nor the inclination to increase their number.

Merrill, for the defendant. Bronson, for the' plaintiff.

It is further urged that this caption is insufficient, because it does not state the cause in which the deposition is to be used. The construction of this provision of the statute has been fully considered , in Scott v. Perkins, 28 Maine, 33, and in that case it was determined that it was a sufficient compliance with its requirements to state the names of the parties to the cause and the Court in which the same is to be tried. This construction has been acted upon by the profession, interferes with no rights of parties, is liberal in its character, and no sufficient reason is perceived requiring its reconsideration. It is therefore no longer an open question. As the deposition was admissible according to the principles of the case just referred to, this exception must be sustained, and a new trial granted.