The question presented by the exceptions is whether, after the defendant made the plaintiff keeper of the property attached, for the purpose of preserving the attachment, and he insisted upon preserving it, the defendant is so out of possession, that this action cannot be maintained.
The only claim, which the plaintiff had upon the property against the general owner was by virtue of a lien for freight, which he had paid thereon, commissions, &c. He could contest the right of the defendant to hold the property on no other ground; but as long as the lien existed he was entitled *585to the possession. His lien was not relinquished by simply consenting to be the keeper of the defendant’s appointment, without giving a written receipt, when he could not legally resist the officer’s right to make the attachment, and take away the property. The plaintiff’s former possession was divested by the attachment, and the property was in the custody of the law, and the defendant acquired therein a special property, as an officer. Small v. Hutchins, 19 Maine, 255. And the plaintiff was not restored to his former possession, by taking charge of the property as its keeper, under the officer. In taking this trust, there was no contract, which would authorize him to retain it beyond the pleasure of him, for whom he acted. As long as he was the keeper for the officer, the attachment was effectual, and the latter could remove him at any time, and the officer held the property as he would have done, if his keeper had been a stranger to it. The plaintiff’s rights in the property may be properly settled in this action. The case of Lathrop v. Cook, 14 Maine, 414, relied upon in defence, is essentially unlike the present. In that, it was fully proved that the property was that of the plaintiff; it had always been in his hands before the attachment, and when attached, the defendant took the receipt of the plaintiff in such form, that he had not the legal right to obtain possession, and the plaintiff was not precluded from showing the property to be his.
The defendant relies upon a motion, that the verdict be set aside, as being against the evidence in the case. The question before the jury was, whether the plaintiff had at the time of the attachment an existing lien upon the property. It was in evidence, that he had paid freight, and was entitled to commissions, and consequently had a lien by the application of well established principles; and it does not appear conclusively, that the lien was discharged or relinquished. His statement, that the property belonged to Curtis, Preston & Co. might have been made in an honest belief, that it was so, in consequence of the order in their favor accepted by him to pay to them the avails “ after deducting charges for *586commissions, freight,” &c.; and under this opinion, it would not be expected, that he would claim to hold the property himself by virtue of a lien, which he might legally have had.
Exceptions and motion overruled.
Howard, Rice and Appleton, J. J., concurred.