Gregory v. Cable

26 N.J. Eq. 178

• Court: New Jersey Court of Chancery
• Decided: May 15, 1875
• Status: Published

Opinion

T.SUÍ ClIAXCEGLOll.

The bill is filed to obtain satisfaction of a chattel mortgage, held by the complainants, out of the proceeds of certain goods and chattels thereby mortgaged, and which were sold by the defendant, Cable, as receiver, by consent of the complainants and the defendant, Archibald Maclauchlin, who is the holder of another mortgage thereon. The complainants’ mortgage was given to The Jersey City Daily Times Association, March 13th, 1866, and a copy thereof filed in the office of the clerk of Hudson county, on the 7th of April, in that year. A copy was again filed in that office on the 2d of April, 1867, accompanied by a statement of the amount claimed thereon. The mortgage was assigned by the association to the complainants, on the 21st of May, 1867.

The mortgage of the defendant, Archibald Maclauchlin, was given to him by James A. Maclauchlin, November 2d, 1871. The defendant, Maclauchlin, assigned, on the argument, the following causes of demurrer: That the copy of the complainants’ mortgage, filed on the 2d of April, 1867, was not filed in the proper county ; that the allegation in the bill that that copy was filed, “ together with a statement of the amount claimed thereon,” is not an averment of compliance with the provision of the third section of the act concerning chattel mortgages,” requiring the filing of a statement exhibiting the interest of the mortgagee in the property therein claimed by him, by virtue thereof; that Maclanchlin’s mortgagor is a necessary party to this suit, and that the bill is without prayer.

The objection that the copy of the mortgage was not filed in the proper county, cannot be sustained. The bill alleges that the mortgagor resided in Jersey City at the time of giving the mortgage, and the fair and reasonable intendment is, that he still resided there at the time of filing the copy, and, besides, the bill states, that the filing was according to-the requirements of the statute. The statement of the bill, in reference to the filing of the copy of the mortgage on the 2d of April, 1867, is, that it was filed in the office of the clerk of Hudson county, together with “ a statement of the amount claimed thereon, as provided by statute for the renewal of chattel mortgages.” This is a sufficient averment. Ely v. Carnley, 19 N. Y. 496; Beers v. Waterbury, 8 Bosw. 396. Maclauchlin’s mortgagor is not a necessary party. The bill contains a prayer for specific relief, and also a general prayer for relief.

The demurrer will be overruled, with costs.