107 Mass. 122 | Mass. | 1871
The plaintiff claims title to the replevied goods as mortgagee. The defendant, a deputy sheriff, attached them upon two writs in favor of creditors of the mortgagor in which the mortgagee was summoned as his trustee, under the provisions of the Gen. Sts. e. 123, §§ 67-71. The attaching creditors thus acquired the right to try the validity of the plaintiff’s mortgage, either by examining Mm under oath or by a trial by jury at their election, and tMs right is inconsistent with and excludes the right of the mortgagee to replevy the attached goods. Until the attachment is dissolved, either by a voluntary abandonment or bj a neglect to pay the sum found due on the mortgage within the time prescribed by the court, the custody by the officer is lawful, and the mortgagee has no right of possession wMch will enable Mm to maintain replevin. Boynton v. Warren, 99 Mass. 172. Martin v. Bayley, 1 Alien, 381. Hayward v. George, 13 Allen, 66.
Exceptions overruled.