Wood v. Simons

110 Mass. 116

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1872
• Status: Published

Opinion

Wells, J.

This case is governed by Fuller v. Cunningham, 105 Mass. 442, unless it is to be distinguished by the fact that there is no express provision of law requiring the clerk to note, upon the creditor’s statement of claim, the time of filing, as there is in regard to mortgages of personal property and assignments of wages. Gen. Sts. c. 151, § 3. But the provisions of the Gen. Sts. c. 150, § 5, requiring the creditor to file his claim in the office of the town clerk, or giving him the right to do so, impose upon the clerk an official authority and duty to make that filing effectual. His indorsement of a memorandum of the time of receiving and filing the paper is an act in the course of his official duty. When made at the time, and certified by him, if not conclusive in all respects, we think it cannot be impeached by evidence merely that it was made and the paper received by the tlerk at his house instead of his office.

Judgment for the petitioner.