Field v. Gellerson

Peters, C. J. There is a point of considerable practical importance in these exceptions. A party took, for an article of personal property, three Holmes notes, one for twenty-five dollars, and each of the others exceeds thirty dollars in amount, the notes containing the contract, and, as allowed by R. S., c. 91, § 7, also [273] a stipulation that no right of redemption shall exist after a breach by non payment. The notes are not recorded, although the statute, R. S., c. Ill, § 5, requires such notes tobe recorded in order to be effectual against attachors and after-purchasers, "'if the agreement is made in a note for more than thirty dollars.” It is pretended that third parties can not be interested in the transaction for the reason that one note is under thirty dollars, and the forfeiture is claimed only on that note. Our opinion is that the notes should have been recorded, to be effectual against other parties. In strict literalness, the case falls within the statute. If the agreement is "made in a note for more than thirty dollars,” it must be recorded. This agreement is made in two notes each of which exceeds that sum, although made also in a note for less than that amount. Much more strongly is this construction required by the sensible meaning and manifest purposes of the statute. The conditional agreement should be recorded for the public benefit, whenever it is made to secure a note of more than thirty dollars, or notes which taken together exceed that amount. The phrase, "in a note for more than thirty dollars,” means where it secures, in that way, an indebtedness upwards of such sum. Under a different construction the statute becomes nugatory. It could always be avoided by persons who should see fit to divide ever so large an indebtedness into notes of less than thirty dollars each. For an erroneous ruling on this point a new trial must be had. It may be well to add, for the bearing of the suggestion at another trial, that the admission of oral proof of notes without producing the originals, or without sufficient foundation laid for their loss, and the admission of an account book kept by the vendor to prove the terms of a sale of personal property, were clearly erroneous rulings. The defendant’s counsel denies that the exceptions presented were seasonably filed. They are certified as regularly taken and allowed, and that presents them properly to us. If a judge, at a trial term, sees fit for his own convenience, to delay his [274] approval of a bill of exceptions, in order to have more favorable opportunity to test their correctness, and the exceptions as finally allowed are regular in form, we cannot, upon the suggestion of counsel dissatisfied with the action of the judge, reject the exceptions. Exceptions sustained. Walton, Daneorth, Libbey, Emery and Haskell, JJ., concurred.