Wright, J., delivered the opinion of the court, in which Bronson, (in a short opinion,) Gardner, Ruggles, and Jones, J. J., concurred.

Jewett, Ch. J., and Gray, J., delivered opinions for affirmance, with whom Johnson, J., concurred.

Note. The court held, that if the return of the justice showed affirmatively, that proof was wanting of the residence of the mortgagor, and that it did not appear that the mortgage was filed in the town where the property was, and that objection was raised before the justice, on account of the absence of it, the defect would be fatal.

But where the return is merely silent on the point, and no objection appears to have been taken before the justice, and where opportunity is given for objection, and the party whose duty it is to object remaining silent, all reasonable intendments will be made by this court to sustain the judgment.

Reported, 1 Comstock, 90.