99 Mass. 172 | Mass. | 1868
Unless the defendant can justify under his attachment, the plaintiff must prevail. As mortgagee of the property, having the right of immediate possession, he may maintain this action against a trespasser. In order to continue his special title in the property taken, an attaching officer must retain the actual or constructive possession of it. A voluntary surrender or abandonment of the property releases the attachment. Bag
It seems to us that there was evidence submitted from which a jury might legally find, under proper instructions from the court, that there was an abandonment of the property attached by the defendant Warren. The articles were never removed, but were left in the custody of a person who left the house every night, leaving no one in charge. The defendant was notified to remove his keeper, and forbidden to remove the goods, and on the following day the keeper left, leaving no one in charge and giving no intimation as to his purpose in leaving or when he should return. It would seem to have been the duty of the defendant, after the notice, to proceed at once to remove the goods from the premises of the defendant in the suit, where they were left without her consent. It is, certainly, as the defendant claims, not necessary that the officer or keeper should remain constantly in immediate contact with or custody of the property attached; nor need his possession always be actual. It is sufficient if he has the constructive possession. But, taking all the circumstances into consideration, we see no reason for disturb ing the findings of the court below.
The present plaintiff, as mortgagee, was summoned as traste in the suit in which the property was attached ; and that suit, r seems, was still pending and the trustee not discharged whe: this action was brought. The defendant now claims that thij action is prematurely brought. ' The provisions of Gen. Sts.