
    Edward H. Hemmenway versus John Wheeler Junior.
    The nature of the possession and custody which an officer is to keep, of personal pro perty attached by him, depends upon the nature and position of the property 3 and in general, it must be such a custody as will enable him to assert his control over the property, and so that it cannot probably be withdrawn or taken by another without his knowledge.
    Am officer attached a parcel of hewn stones lying in the town of Worcester, on land belonging to the commonwealth, by going among and upon them, and directed the creditor, who had receipted for them, and whose place of business was about fifty or sixty rods distant from where the stones lay, and in sight of a part of them, to take charge thereof3 but the stones were not removed. No notice was given to any one, of the attachment, although there were persons at work or residing near, nor was any other mode adopted of giving notoriety to the transaction. A few days after the attachment, a person was summoned as a trustee in the same writ, and the creditor informed him of the attachment, but desired him not to inform any other person thereof, saying that he did not wish to injure the credit of the debtor. It was held, that the attachment was valid as against a subsequent attachment made without notice thereof, and that sufficient possession was retained, to continue it in force.
    This was replevin for 2486 feet of hewn stones. The defendant pleaded property, at the time of the taking, in Temple & Washburn.
    At the.trial, before Morton J., it appeared that the plaintiff and defendant were deputy sheriffs ; that on November 5, 1832, the plaintiff, having a writ in favor of one Howe and others against Temple & Washburn, proceeded to attach the stones in question, which were lying at about the distance of ten rods from the Lunatic Hospital in Worcester, on land belonging to the commonwealth and appropriated to the use of the hos- « pital; that the plaintiff, in making the attachment, went among and upon the stones ; that Howe receipted for them ; that the plaintiff thereupon directed him to take charge of them, but that they were not removed ; that Howe’s place of business was distant about fifty or sixty rods from the place where the stones lay, and in sight of a part of them, and his boardinghouse was also in sight of them ; that there were persons at work upon the hospital, and that the house of John F. Clark was distant about ten or fifteen rods, but that no notice of the attachment was given to them or to any other person, nor any other mode adopted of giving notoriety to the act; that on No vember 15, 1832, one Holbrook was summoned in the same writ as trustee of Temple & Washburn, and was informed by Howe, that the stones were attached, and that no one knew of it except Howe and the plaintiff; that Holbrook was desired to communicate information of the attachment to Temple & Washburn, and to tell them, that the action might be settled before the expiration of the time of service and the public would have no knowledge of the transaction ; and that Howe requested Holbrook not to inform any other person of the transaction, saying that he did not wish to injure the credit of Temple & Washburn.
    It further appeared, that on December 1, 1832, the defendant, after inquiring of Clark, whose residence was nearest to the stones, whether they had been taken by any of the creditors of Temple & Washburn, and not deriving any knowledge from him or otherwise of any existing lien thereon, attached them upon a writ in favor of one Sherman against Tem pie & Washburn that Clark and one Henry, who resided in the same house, were employed by the defendant to take care of the property attached ; and that a few weeks after the attachment made by the defendant, Howe gave notice to Clark, of the plaintiff’s attachment.
    
      Merrick and Kinnicutt, for the plaintiff,
    cited Baldwin v. Jackson, 12 Mass. R. 131; Train v. Wellington, 12 Mass. R. 495; Bridge v. Wyman, 14 Mass. R. 190; Bagley v. White, 4 Pick. 395; Ashmun v. Williams, 8 Pick. 402.
    C. Mien and Toione, for the defendant,
    cited Bagley v. White, 4 Pick. 395; Bridge v. Wyman, 14 Mass. R. 190; Denny v. Warren, 16 Mass. R. 420; Gordon v. Jenney, 16 Mass. R, 465; Baldwin v. Jackson, 12 Mass. R. 131; Train v. Wellington, 12 Mass. R. 495.
   Shaw C. J.

delivered the opinion of the Court. If any question of fraud were intended to be raised in the present case, if it were contended that the plaintiff had designedly concealed his attachment with a view to defraud other creditors, that fact should have been put in issue and tried by a jury. The question therefore is, whether the prior attachment made by the plaintiff, was sufficient to bind and hold the property against the after attachment made by the defendant.

The evidence shows that there was a sufficient seizure of these bulky articles, to constitute an attachment. The officer went to the place where the stones were, and upon and among them, declaring that he attached them. Train v. Wellington, 12 Mass. R. 495.

And we think he remained in the constructive possession in such manner as to continue the attachment in force. Notoriety is not necessary to give effect and validity to an attachment of personal property. It is not necessary to continue an attachment, that an officer or his agent should remain constantly in the actual possession. Gordon v. Jenney, 16 Mass. R. 465; Ashmun v. Williams, 8 Pick. 402. [See also Fettyplace v. Dutch, 13 Pick. 388.] The nature of the possession and custody which an officer is to keep, will depend upon the nature and position of the property, as ships, rafts, piles of lumber, masses of stone, or lighter, more portable, and more valuable goods. In general it may be said, that it shall be such a custody as to enable an officer to retain and assert his power and control over the property, and so that it cannot probably be withdrawn, or taken by another, without his knowing it. Here it is manifest, that the officer did not intend to abandon the attachment, and that the measures which he took, considering the bulky nature of the property and the situation in which it was placed, were sufficient to continue his possession and preserve his attachment.

Defendant defaulted.  