
    Byron H. Arnold vs. Patrick Maroney.
    A mortgagee cannot take from an attaching officer mortgaged personalty attached as the mortgagor’s property under Pub. Stat. R. I. cap. 208, § 4. The mortgagee should apply for an order of sale under Pub. Stat. R. I. cap. 208, § 5.
    Dependant’s petition for a new trial.
    The plaintiff, a deputy sheriff, attached certain personalty, at the suit of one Howard A. Waterhouse, as the property of one Hugh McCartin. The defendant, Maroney, took this personalty from the possession of Arnold, and retained it as a mortgagee of McCartin. Thereupon the plaintiff, Arnold, brought trover against Maroney.
    
      January 23, 1892.
   Per Curiam.

We think that the action of the defendant in taking and retaining possession, under the mortgage, of the goods and chattels attached by the plaintiff, instead of applying for a sale of them as provided by Pub. Stat. R. I. cap. 208, § 5, was illegal and wrongful, and amounted to a conversion.

Henry J. Dubois, for plaintiff.

John M. Brennan, for defendant.

Defendant’s petition for a new trial is denied, and dismissed with costs. 
      
       Pub. Stat. R. I. cap. 208, §§ 4-6, are as follows : —
      Sect. 4. Personal estate, when mortgaged and in the possession of the mortgagor, and while the same is redeemable at law or in equity, may be attached on mesne process against the mortgagor, in the same manner as his other personal estate.
      
        Sect. 5. When attached, such mortgaged estate may he sold, upon the application of the mortgagee, or of either of the parties to the suit, in the manner provided for the sale of perishable goods and chattels when attached on mense process.
      Sect. 6. Upon any such sale, the attaching officer shall first apply so much of the proceeds of the sale as may be necessary to pay the amount for which the said property was mortgaged, with such deduction for interest for the anticipated payment, or allowance for damages for such anticipated payment, as may be allowed by the court or judge directing the sale ; and the officer shall hold only the balance for the purposes of the attachment.
     