Rowley v. Rice

52 Mass. 337

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1846
• Status: Published

Opinion

Shaw, C. J.

The main facts relied on, in support of this action, are stated in the next preceding action of trover; and on the facts thus appearing, the court are of opinion that this action of trespass will not lie. Even if the plaintiff were mortgagee or pawnee of the goods, a creditor of Tingley had a right to attach them. The officer, therefore, was justified in taking and holding possession of them; because the attaching creditor must pay the amount for which they were hypothecated. Rev. Sts. c. 90, § 78.

The question, whether the officer staid in the store too long, and thus abused his authority, and made himself a trespasser ab initio, was left to the jury, who have answered it in the negative.

In general, an officer has no right to make use of the tenement oí another, to keep attached goods in, without the express or implied consent of the proprietor. But this consent is a question of fact.

Judgment on the verdict for the defendant.