Callender v. Furbish , 46 Me. 226 ( 1858 )

The opinion of the Court was drawn up by

Appleton, J.

It has been repeatedly held that mortgagees, not having the possession of the goods mortgaged, cannot be charged as trustees. This being the case, the interrogatories proposed to Moffat, however answered, would not affect the question of his liability, because he was not in possession of the mortgaged goods. No reason is perceived for remanding the cause for the purpose of procuring immaterial answers.

The trustee, Stevens, appeared at the first term and submitted himself to examination, and was partially examined by the counsel for the plaintiff. The cause was then continued, and, at a subsequent term and after a full examination and disclosure upon oath, he was discharged. “ It has not been deemed necessary that the mere general denial of effects, which is generally made at the first appearance, should be under oath,” remarks Parker, C. J., in Chapman v. Phillips, 8 Pick. 25. “ If an examination on interrogatories is intended, the oath is generally administered at the close of the examination. And this course is quite consistent with the views of the Legislature; who intended to prevent any delay on the part of the trustee, by making his title to costs depend upon his presenting himself for examination at the first term; if he does so, and is not examined, it is the fault of the plaintiff, and the trustee ought not to be deprived of his costs. If the plaintiff is satisfied with the general denial of effects, in order to be discharged and to have his costs, the trustee must make oath to his general answer.” In accordance with these views, was the decision of this Court in Macomber v. Wright, 35 Maine, 156. Both exceptions overruled.

Tenney, C. J., and Rice, Cutting, May, and Goodenow, J. J., concurred.