
    Payson Perrin versus Benjamin Leverett.
    For the attachment of a pew in a meeting-house, upon mesne prouess, it is not necessary for the officer to enter the house.
    Trespass for forcibly entering the plaintiff’s pew, No. 82, in the meeting-house situated in Chauncy Place. Tn a case stated by the parties, for the consideration of the Court, the defendant admits the force, &c., as alleged in the plaintiff’s declaration ; but justifies, on the ground of the property in the pew being at the time in himself.
    On the 17th of December, 1814, at 5 o’clock, P. M., Luke Baldwin, a deputy of the sheriff of the county of Suffolk, attached the pew in question, upon an original writ in favor of one Cutter, against the then owner of the pew, of which he made a due return ; it being agreed, that the said Baldwin had at that time procured the key of the meeting-house for the purpose of making such attachment ; that he did enter and attach the pew ; and that the usage or practice in Boston is now, and for many years has been, for the officer attaching a pew to enter the same, or at least to be within the house, and in sight'of the pew, at the time of making the attachment. Immediately after the said attachment, the said Baldwin gave notice thereof to. the treasurer of the proprietors of said meeting-house. The said action was prosecuted to judgment and execution, and the pew was sold, under the said execution, by the said Baldwin to the plaintiff, for $ 385, and a deed thereof given accordingly, pursuant to the statute.
    *On the same 17th of December, at half past 4 o’clock, P. M., Shubael Bell, another deputy of the same sheriff, attached the said pew, at the suit of another creditor of the owner thereof, making his return, that, at the time before-mentioned, he went to the said meeting-house, and “ attached all the right, title, interest, and estate, which the within-named --—■ had in and unto the said meeting-house, meaning thereby to attach the pew No. 82 in said house ; but the doors of the house being closed, I could not enter the house.” The said Bell went, with the original writ in said action, to the door of the house, but could not enter for the reason stated in his return. The said action was likewise prosecuted to final judgment, and the said pew was sold by the said Bell, upon the execution issued on the said judgment, to the defendant, for $100, and a deed thereof given accordingly, pursuant to the statute.
    Since the giving of this latter deed, the defendant forcibly entered into said pew, which had been for some time in possession of the plaintiff, under his said deed from Baldwin.
    
    If, in the opinion of the Court, the attachment by Bell was valid in law as an attachment of the pew, the plaintiff was to become non-suit ; otherwise, he was to have judgment, upon the default of the defendant, for nominal damages and full costs.
    
      Townsend, for the plaintiff.
    
      jWales, for the defendant.
   Parker, C. J.,

delivered the opinion of the Court. The attachment made by Bell, being prior in point of time to the other, the title of the defendant, which is derived under it, must prevail, if that attachment was valid. It is contended, on the part of the plaintiff, that it was not valid, because the officer did not enter the pew, or come in sight of it, or even enter the meeting-house. He came, however, to the meeting-house, which he found shut and locked. He did, in fact, all that was in his power ; and no negligence can be attributed to him. Shall the plaintiff, who came * afterwards, and who was fortunate enough to procure the key, supersede him ?

It must be observed, that the attachment of real estate upon mesne process is, with us, almost entirely symbolical. The tenant is never dispossessed by it. The officer may go upon the land in the dead of night, attach the land, and return his precept; and, without any act of notoriety whatever, and, indeed, with the writ in the officer’s pocket until the return day, a lien is created in favor of the attaching creditor. Nay, more, if he never sets foot upon the land, but makes a return that he has attached it, there seems to be no means of ques- • tioning the fact.

In the case agreed in this action, it is stated to be the custom in the town of Boston, among officers who attach pews, to go into the pew, or at least to go within sight of it. It is not easy to perceive why a view of it through the window' should not be as effectual as from a distant part of the meeting-house within doors ; or, if viewing it through the window would be sufficient, why seeing it at all should be necessary. Enough was done by Bell to make his attachment good ; and, if- it were set aside to make way for the other, because the meeting-house was locked, it would be in the power of the sexton, or other person having possession of the key, to determine which of a number of struggling creditors should have the advantage.

It has been doubted, whether it is at any time necessary for an officer, who attaches real estate, to make an entry upon it. In the county of Essex, for thirty years past, under the advice of very eminent practitioners, we understand that officers have returned such attachments, while sitting at home, or in the attorney’s office. Whether this practice is regular or not, we do not now say; although, when it is considered how little ceremony or notoriety is required, and how difficult it is to ascertain whether an entry has been made or not, perhaps no advantage can be derived from an actual pedis possessio of the officer.

It may, indeed, be questionable, whether it would be * useful, upon the whole, that public notice should be given, whenever an attachment is made. The reasons, which have prevailed with the legislature to refuse to require notice, at the registry office, of attachments, would be equally strong against any act of notoriety by the sheriff.

Plaintiff nonsuit  