By Stat. 1798. ch. 42. however, all pews, and rights in houses of public worship in Boston, shall be considered and deemed in law, to be personal estate. The Stat. 1822. ch. 93. before cited, as to the mode of attaching pews, applies to pews in Boston.

And in all cases of the attachment of pews, the notice to the clerk of the parish, is a part of the attachment, and does not supersede the necessity of serving the common summons upon the defendant, as in other cases.

We have before observed, that an attachment of real estate, constituted merely a lien upon the land, and the title is perfected, only by a levy under the execution, which may issue upon the judgment, recovered in the suit. Such attachment, therefore, is no bar to any alienation of the land attached, subject, however, to the lien created by the attachment. But to make this lien complete, the service of the writ must be completed by the delivery of a summons, which may be done, at any time after the attachment, provided it be within the time limited by law, for the completion of the service, and in such case,

it will relate back to the time of the attachment.

SECT. IV. WHAT CONSTITUTES AN ATTACHMENT OF PERSONAL ESTATE.

To constitute an attachment of personal estate, the attaching officer must have the actual possession and custody of the property attached, as much as in seizure

1 Almy et al. v. Wolcott, 13 Mass. Rep. 73.

on execution.' It seems, that going on board a ship, in which there are goods of the debtor, but not breaking open the hatches, where the goods are stowed, is not such a possession by the officer, as to make a valid attachment.2

It is not necessary, that the goods should be removed from the place where they are attached, or that every article should be taken hold of, by the officer. It is sufficient, if he be in view of the whole, with the power of actually seizing them. Even the use, by the debtor or his family, of such articles, as will not be injured by use, if by the permission of the officer or his servant, will not vacate the attachment, provided there be a keeper over them, or that there be any other acts of notoriety, which may notify creditors, that the goods are in the custody of the law.5

The debtor, however, should not have the management of such property, in the same manner as if no such attachment had been made, but some person must be authorized and required, where actual possession is not kept, to give notice, in case a second attachment is attempted.R

Locking the door of the room of a building, containing the property of the debtor, and taking the key, is a sufficient possession and custody, to constitute and preserve a lawful attachment, although the debtor may

1 Lane et al. v. Jackson, 5 Mass. Rep. 157. Watson et al. v. Todd et al. 5 Mass. Rep. 271.

2 Ibid. But vide Naylor et al. v. Dennie, 8 Pick. Rep. 198.

3 Train v. Wellington, 12 Mass. Rep. 495.

4 Ibid. 16 Johns. Rep. 288.

5 Ibid. Baldwin v. Jackson, 12 Mass. Rep. 131. Merrill v. Sawyer et al. 8 Pick. Rep. 397.

6

Bridge v. Wyman et al. 14 Mass. Rep. 190. Bagley v. White, 4 Pick. Rep. 395.

have another key by which he may gain access to the store.1

Although attachments of personal property, are not generally, valid against subsequent purchasers or attaching creditors, unless the officer take possession of the property attached, yet property of the nature of things immoveable, is not within the reason of the general rule, and is consequently, to be excepted from its operation. As for instance, in the case of Ashmun et al. v. Williams et al, where a building, used as a town-house, the property of one Damon, was attached, the fee of the land being in the town, it was considered by the court, that taking possession by a notorious act of the officer, was not necessary; but that the simple return of the attachment, made upon the writ, was sufficient.

The officer, having once taken the requisite possession of the property, upon the first writ served, may return subsequent attachments of the same property, upon other writs, in favor of the same or other creditors, so long as his actual or constructive possession continues; and no overt act is necessary, to constitute such subsequent attachments. But if such actual or constructive possession of the goods by him, have been in any way lost, he cannot again attach them, without an actual seizure.5

Denny v. Warren, 16 Mass. Rep. 420. Gordon v. Jenney, 16 Mass. Rep. 465.

28 Pick. Rep. 402.

' Turner v. Austin, 16 Mass. Rep. 181. Vinton v. Bradford, 13 Mass. Rep. 114.

4 Ibid.

Knap v. Sprague, 9 Mass. Rep. 258. Carrington et al. v. Smith, 8 Pick. Rep. 419.

From the rule, that possession of the goods must be taken and kept by the attaching officer, it follows, that goods in the possession of one officer, by virtue of an attachment, cannot be attached, at the suit of another creditor, by another officer.' And different deputies of the same sheriff, are different officers, within this last rule.2

If a second deputy, therefore, come to attach property, and find it already in legal custody, he is bound in duty, to deliver his precept to the one, who has the goods, and require him to attach. If he do not, he is guilty of a breach of duty, for which he will be responsible. And if instead of so doing, he seize the property, he is liable to an action by the first attaching officer.*

3

If however, the first attaching officer be a constable, and the second who comes, be a deputy sheriff, with a writ beyond a constable's jurisdiction, it seems that the constable must either select a sufficient amount, to satisfy his attachment, and leave the residue for the deputy, or if that be impossible, by reason that the property is indivisible, or from any other cause, he must surrender the property, and give his writ to the deputy, who will be bound to give it priority over his own writ, in the order of attachments.

This rule, that different officers cannot attach the same property, at the same time, applies only to cases, where possession must be taken, to constitute a valid attachment. Thus, we have seen, it does not apply

1 Watson et al. v. Todd et al. 5 Mass. Rep. 271. Vinton v. Bradford, 13 Mass. Rep. 114. Thompson v. Marsh et al. 14 Mass. Rep. 269. Thompson v. Marsh et al. 14 Mass. Rep. 269.

2

3 Ibid.

4 Ibid.

to attachments of real estate.1 So also, shares in the stock of incorporated companies, and equities of redemption, may be attached on different writs, by different officers. So where goods have been attached by a trustee process, in the hands of a trustee, another officer may make a second attachment of the same goods, by the ordinary process of law, and hold them, subject to the lien created by the first attachment.3

We have already seen, that in all cases where an attachment of property is made upon a capias and attachment, whether really or nominally, a delivery of the summons is necessary, at some time within the period prescribed by law, for the service of the writ.* And several attachments of different property, may be made on the same writ, before the delivery of the summons, and that too, in different counties, or towns.5

Whether additional property can be attached upon a writ, after the summons has been served upon the defendant, does not seem to have been decided in our courts. In the case of Cleverly v. Brackett et al. the judge at the trial ruled, that a further attachment might be made, after the delivery of the summons, if sufficient had not been taken before, but the decision of the case by the whole court, turned upon other points.

2

3

Shares in incorporated companies. The shares or

1 Vide ante Sect. II. of this Chapter.

Denny v. Hamilton, 16 Mass. Rep. 402.

Burlingame v. Bell, 16 Mass. Rep. 318.

4 Vide ante page 154, 155.

"Vide ante Chap. VIII. Sect. II.

8 Mass. Rep. 150.