
    Isaac Train versus Jeduthan Wellington.
    An officer, attaching chattels upon mesne process, is not obligéd to remove them from the store or house where they were attached.
    Placing a keeper over them is sufficient. Nor does the use, by the debtor or hi« family, of such articles as will not lie injured by the use, if by the permission of the officer, vacate the attachment.
    This was an action of trespass for taking divers articles of household furniture on the 4th of October, 1813. The defendant pleaded the general issue, which was joined. He also filed a brief statement according to the statute, claiming a right to take the goods as a coroner of this county, in virtue of a writ of attachment sued out by Nathaniel L. Williams against Peter Valette on the same 4th of October.
    .At the trial of the issue before Putnam, J., at the sittings here after the last November term, the plaintiff proved, that, on the 19th of August, 1813, he was a deputy of the sheriff of said county, and then attached the goods in virtue of a writ of attachment sued out by Charles Thayer against the said Peter Valette, returnable to the county of Suffolk ; that judgment was rendered in that suit at the September term of the Common Pleas in the year aforesaid, and execution issued thereon on the 19th of October, 1813, within thirty days from the rendition thereof, which was delivered to the plaintiff with directions to levy the same on the said goods. The plaintiff offered one Jlmos Reed as a witness, who testified that the plaintiff, at the time when he made the attachment aforesaid, delivered saie goods to the said Seed, to keep them for the plaintiff, stating, at the same time, at whose suit they were attached ; that the goods were then in the house of the said Valette in Cambridge, who had absconded, leaving his wife and family there, part of the goods being in the parlour, and the residue in the chamber ; that the witness remained at the said house, or at a shop adjoining, in sight of 'the only door of the house that was open, * night and day [*496 ] (excepting only Sundays,) to keep the possession of the goods, from the time of their being attached by the plaintiff until the time when the defendant took them away as aforesaid ; that the defendant came to the house a day or two before he took the goods, when the plaintiff and the witness were both there ; and the defendant was informed by them both, that the goods had been attached as aforesaid, and that the witness was keeping the same as aforesaid for the plaintiff; that the defendant afterwards requested the witness to accept of an authority from him, to keep the goods on the attachment which he was about to make on said Williams' writ, which the witness refused ; whereupon the defendant took the goods by force, notwithstanding the witness forbade him, and notified him that he held them for the plaintiff as aforesaid ; that the witness kept the key of the front door of said house and locked it, and labored occasionally in the said adjoining shop, from which he could see the back door, but to which he could not go from the house without passing out of doors ; and when he was in the shop he kept watch for the goods, as well as when he was in the house ; that Mrs. Valette used none of the said goods to his knowledge, except a bed and a teapot ; and that the goods, during the time he had the custody of them as aforesaid, could not have been removed or taken away from the house without his knowledge, and were not in fact removed, until they were taken away by the defendant as aforesaid.
    Upon this evidence the jury found a verdict for the plaintiff, assessing his damages at $ 130, which was taken, subject to the opinion of the whole Court ; and if, upon these facts, the plaintiff ought to recover, the verdict was to stand ; otherwise, it was to be set aside, and the plaintiff to become nonsuit.
    
      Fay, for the plaintiff.
    
      W. Austin, for the defendant.
   Parker, C. J.,

delivered the opinion of the Court. — The only case goods, were taken by the defendant, were under attachment by the [*497] * plaintiff; if they were, the latter had a special property as well as possession, and the act of the defendant must be tortious.

The case shows that an attachment had been made by Train, under a writ which he had against Valette, the owner of the goods ; but that he did not remove them from the dwelling-house of Valette, in which his family resided, although he had withdrawn himself from his creditors. He, however, placed the goods attached in the custody of Reed, his servant, who locked the front door of the house, keeping the key, and was either in the house, or in a shop adjoining the house where he labored, until the goods were taken out of his possession by the defendant, which was forty-six days after the attachment. The defendant was informed, before he took the goods, that they were holden under attachment by the plaintiff, and at the time of taking them he was forbidden, and it was again stated to him that they were attached. Reed' was so situated, that the goods could not be removed by any one without his knowledge.

Under these circumstances, we are of opinion that the attachment by Train continued in force until the goods were taken by the defendant. There is no doubt but, to constitute an attachment, there must be an actual seizing of the goods by the officer; not that every article must be taken hold of, but that he must be in view of the whole, with the power of taking them into his actual possession. They must not be left under the control of the debtor ; but it is not necessary that they be actually removed from the store or house where they are attached. Other acts of notoriety, which may notify creditors that the goods are in custody of the law, may be equivalent to a removal. Putting a keeper over them is sufficient, unless it be done colorably, to give the appearance of an attachment where none in truth exists. Even the use, by the debtor or his family, of such articles as will not be injured by the use, if by the permission of the officer or his servant, will not vacate the attachment. To permit a debtor to sell or dispose of * personal property, [*498] which has been attached, would undoubtedly tend to prove the attachment fraudulent. But where it is bond fide, and, from motives of compassion to the debtor’s family, articles of household furniture, without which the family cannot subsist, are used by per mission of the officer, the attachment may continue in force notwith standing.

In the case before us, to have left the goods in the house of Valette, without putting them into the custody of any one who might be considered as the servant of the officer, would have been to abandon the attachment; but every care was taken to keep the goods for execution, and no use of them was permitted but such as was consistent with the custody of the officer.

The defendant’s counsel has insisted, that Train or Reed should be considered as a trespasser upon Valette, after a reasonable time had passed for the removal of the goods, if they entered and continued in his house. This would be true, if they remained against his will or without his consent. But we think his consent would be presumed in this case ; as it does not appear that his family, which he left in the house, made any objections, or signified any uneasiness at Reed’s exercising a right to enter, in order to oversee the goods.

Upon the whole, we are all satisfied that the verdict is right, and judgment must be entered accordingly. 
      
       5 Mass. Rep. 163.
     
      
      
        Baldwin vs. Jackson, ante, 131. — Denny vs. Warren, 16 Mass. Rep. 420. — Gordon vs. Jenney, 16 Mass. Rep. 465.— Bridge vs. Wynean, et al., 14 Mass. Rep, 190. — Bagley vs. White, 4 Pick. 395.— Latimer vs. Batson, 4 B. & C. 652.
     