Enos Dean v. Pierce Millard

1 R.I. 283

• Court: Supreme Court of Rhode Island
• Decided: September 6, 1849
• Status: Published

Opinion

Replevin for certain machinist’s tools and engines. The defendant pleaded that the property was not in the plaintiff but in one Thurston. The plaintiff showed title through Nelson Williams, who bought the tools of Olney Winsor. Before the sale from Winsor to Williams, the property had been mortgaged to Vernon W. Millard, who had transferred the mortgage in writing to Pierce Millard, the defendant. Pierce Millard had transferred the mortgage in writing to Thurston, and afterwards Thurston gave back the mortgage and note to Pierce Millard, without writing any transfer upon it. Pierce Millard then transferred the mortgage in writing to Nelson Williams.

The Court held, that the transfer of the mortgage from Thurston back to Millard, although not in writing, (Millard being in possession of the property,) was a release of Thurston’s claim to the property.

The plaintiff offered in proof of his case, a deposition, with a certificate of the justice before whom it was. taken, attached, in which it was stated that the opposite party was served with reasonable notice, as would appear by the annexed return of the sheriff. It was objected on the part of the defendant that the certificate itself should disclose the time, at which notice was given. But the Court held, that the reference to the officer’s return made it a part of the certificate for the purposes for which the reference was made, and, if the return showed the requisite notice, it was sufficient proof.

Holden, for the plaintiff. Carpenter, for the defendant.