144 Mass. 588 | Mass. | 1887
The attachment of the property on March 18, 1885, was a breach of the condition that the mortgagor should not suffer the property to be attached on mesne process. It was immaterial that the attachment was void, and that the mortgagor had no attachable interest in the property. It was taken and held by virtue of the attachment as his property, and with his consent and by his procurement. The plaintiff therefore had the right of possession, on March 23, when this suit was commenced, unless the property could be held against him under the attachment. The defendant caused the property to be taken on the attachment, and was in possession of it as keeper under the attachment, holding in denial of the plaintiff’s right. If the attachment was not valid, there was evidence of the plaintiff’s right of possession of the property, and of the conversion of it by the defendant.
It is said that, as the plaintiff was a defendant in the action in which the property was attached, his only remedy is an action for malicious prosecution. . But the fact that the suit was malicious cannot deprive the plaintiff of his right to the property. If he had been sole defendant, and the property had been attached as his, he could have maintained replevin for it, although the suit were malicious. If the suit had been against the plaintiff alone, or against Snell alone, the plaintiff could have maintained replevin for the property taken on the attachment, and it would have been no defence that the suits were malicious. Can the action be defeated by fraudulently naming both as defendants ? If the attachment was invalid, whether because neither defendant had an attachable interest in the property, or because waived by putting the property into the possession of the defendant owner, or for fraud, it could not deprive the plaintiff of his right to the possession of the property. It is immaterial that the evidence which shows it to be void is also sufficient to prove that the suit was malicious.
It is not necessary to notice the particular requests for rulings made by the defendant. The decision covers every point presented by them. ' Exceptions overruled.