Opinion
January 23, 1892.
A mortgagee cannot take from an attaching officer mortgaged personalty attached as the mortgagor's property under Pub. Stat. R.I. cap. 208, § 4. The mortgagee should apply for an order of sale under Pub. Stat. R.I. cap. 208, § 5.
DEFENDANT's petition for a new trial.
The plaintiff, a deputy sheriff, attached certain personalty, at the suit of one Howard A. Waterhouse, as the property of one Hugh McCartin. The defendant, Maroney, took this personalty from the possession of Arnold, and retained it as a mortgagee of McCartin. Thereupon the plaintiff, Arnold, brought trover against Maroney.
January 23, 1892.
Henry J. Dubois, for plaintiff.
John M. Brennan, for defendant.
We think that the action of the defendant in taking and retaining possession, under the mortgage, of the goods and chattels attached by the plaintiff, instead of applying for a sale of them as provided by Pub. Stat. R.I. cap. 208, § 5, was illegal and wrongful, and amounted to a conversion.
Pub. Stat. R.I. cap. 208, §§ 4-6, are as follows: —
SECT. 4. Personal estate, when mortgaged and in the possession of the mortgagor, and while the same is redeemable at law or in equity, may be attached on mesne process against the mortgagor, in the same manner as his other personal estate.
Defendant's petition for a new trial is denied, and dismissed with costs.