
    Edward Carrington et al. versus Samuel Smith.
    Where the person appointed by a sheriff to take custody of personal property attached, abandons it, and it comes into the possession of an adverse claimant, the lien created by the attachment is lost.
    A mortgage was made of a factory and certain machinery ee in preparation soon to be placed there,” but no possession of the property was taken at the time, and the mortgager still continued to occupy the factory. The machinery was afterwards attached in the factory, in a suit against the mortgager, and a person at the factory was appointed by the attaching officer to take charge of the machinery attached. This person subsequently absconded, and the mortgagee took possession of the mortgaged property, real and personal, including what had been attached. An execution having issued in the suit in which the attachment was made, the attaching officer took the machinery out of the possession of the mortgagee, and sold it on the execution. Held, that the possession of the machinery taken by the mortgagee perfected his title under the mortgage ; that at the time the officer took the machinery on execution, he had lost the lien created by his attachment; and that the mortgagee might maintain trespass against the officer.
    This was an action of trespass for breaking and entering the plaintiffs’ close in Southbridge, and carrying away a spinning mule.
    
      The defendant pleaded, 1. The general issue, not guilty: 2. As to whatever is against the peace, except the breaking and entering, r.ot guilty, tendering an issue to the country; and for a justification as to the residue of the supposed trespass, that he, as a deputy-sheriff, on October 10, 1826, attached the mule, which was then the property of Francis Harding, at the suit of Asa Pierce and Caleb Pratt against Harding, on the close, which was a factory then in the lawful possession of Harding, and, with Harding’s consent, left the mule in the factory in the custody of Leonard Harding ; that judgment having been recovered and execution issued in that action, the present defendant attached and levied the execution on the mule, January 16, 1827, and advertised it to be sold, January 20, 1827; that on the 20th of January he went to the factory to sell the mule on execution, but found it shut and locked, Leonard Harding having absconded ; that he then requested Elbridge Harding, who had the keys of the factory, to open the door and let him remove the mule, or to deliver it to him; that Elbridge refused to do either, whereupon the defendant broke into the factory through the window, doing as little damage as possible, and removed the mule and sold it on execution.
    The plaintiffs replied, that Francis Harding, on March 4, 1825, by a deed of that date, mortgaged the close and the mule to them, to secure the payment of 1000 dollars in four years by annual instalments, and that on January 4, 1827, the plaintiffs entered into the close for a breach of the condition of the mortgage, and took possession of the same and of the mule, and continued in possession of the same until the time of the trespass committed by the defendant.
    The defendants then craved oyer of the mortgage deed, which was a mortgage of the factory and personal property in it, and of a mule and other articles mentioned, “ in preparation soon to be placed there.”
    After oyer of the deed, the defendant demurred specially to the replication for the following causes : 1. Because the replication did not aver an actual or legal delivery to, or possession had by, the plaintiffs, of the mule or close, at the time of the execution of the mortgage deed, or before the attachment, or that the defendant or the attaching creditors knew of the mortgage at the time of making the attachment: 2. Be cause the replication did not traverse or deny that the mule was the property of Francis Harding at the time of the attachment, or that he was then possessed of the close : 3. Because the replication did not aver that the plaintiffs, at the time of the attachment, held or claimed to hold, possessed or claimed to possess, the close by virtue of the mortgage.
    
      Sept, term 1828
    
    The case was argued on the demurrer by Tufts, for the defendant, and Merrick and Bottom, for the plaintiffs.
    
      Oct. 5th 1829
    
   Parker C. J.

delivered the opinion of the Court. The question arising out of the pleadings in this case is, whether the property in the mule taken and sold on the execution against Francis Harding, was in the plaintiffs, at'that time, or in Harding. The attachment was made on the 10th of Octo her, 1826, the factory in which the mule was placed being then in the actual possession of Harding, and the mule having been put by the defendant, after his attachment, in the keeping of Leonard Harding. But before this, in March, 1825, Fran ois Harding had by deed of mortgage conveyed the factory, and the mule, not then therein, but in preparation and soon to be placed there, to secure a debt of 1000 dollars, which was to be paid by instalments in four years. There having been no delivery of the mule at the time of the conveyance, though between the parties to it the mule passed, yet it was liable to the attachment of the creditors of F. Harding. The attachment however holds no longer than the custody remains in the sheriff, and when that custody is lost, if the mortgagees come into possession by virtue of their conveyance, their title is complete. It appears that the plaintiffs entered into the mortgaged premises for condition broken, on the 4th of January, 1827, the mule then being in the factory ; so that it came into their possession under their contract, unless the attachment then continued in force. Whether it did or did not, doe not distinctly appear, for the defendant, in his plea, has alleged that Leonard Harding had the keeping of the mule for the sheriff, but without stating the time when he absconded. But on the supposition that the attachment then continued in force, it ceased upon the taking on execution, which is averred to be on the 16th of January, 1S27. Now it does not appear by the plea, that the mule was taken into the custody of the sheriff, or left in the care of any one after the alleged taking on execution ; so, for aught appearing, this was a mere formal act preparatory to a sale on execution. It does appear by the defendant’s showing, that the mule was left in the factory, without being committed to the care of any one. The factory was the plaintiffs’ properly and then in their sole possession, and that gave them possession of the mule, which had been conveyed with the factory. This was not, then, a levy which could deprive them of their right, by virtue of the previous attachment, there being no possession taken by the sheriff and no removal by him ; so that when he came to demand possession on the day of the intended sale, he had lost his lien, and the plaintiffs’ title became perfect under the mortgage. There cannot be a seizure of goods on execution, unless the officer has the actual custody and possession of them. Lane v. Jackson, 5 Mass. R. 157. We think there can be no doubt, that another attachment made on the mule between the 16th and 20th of January would have held, for there was not even constructive possession in the defendant during that time. A conveyance also to a bon-> fide purchaser would have been good, if the property had not been mortgaged. We see no sufficient reason then why the mortgage made long before, for a valuable consideration, should not draw to it the mule, when in the actual possession of the mortgagees.

The replication however is liable to some of the objections taken to it in the special demurrer, especially in that it is argu mentative and does not contain a direct allegation that the property of the mule, or the possession, was in the plaintiffs, but leaves this to be inferred. The replication may be amended on payment of costs since the demurrer was filed. 
      
       See Bonsey v. Arate, ante, 237, and note 1.
     
      
       See Merrill r. Sawyer, ante, 397; Sanderson v. Edwards, 10 Pick. 146 Dunclclee v. Foies, 5 N. Hamp. R. 528.
     