It is quite clear, upon the facts, and is not denied, that the original taking of the plaintiff’s property, by the defendant, was lawful; being by virtue of a lawful warrant, duly issued by a competent tribunal, under the insolvent law. The defendant relies upon a conversion by ah unwarrantable and unlawful detention of the property. But if the defendant rightly took the property, he was bound to hold it *467until the proceedings under which he took it were at an end. There was indeed a decision of the judge of probate, that the petitioner’s debt was not proved. But that decision was appealed from; and that appeal opened the whole case.
It has been argued for the plaintiff, that an appeal did not lie in this case; that a petitioning creditor cannot appeal from a decision against his claim. It is also said that the appellant did not give the assignee notice of the appeal, as required by St. 1838, c. 163, § 4. Was the defendant bound, at his peril, to decide whether an appeal would lie in this case, or whether the appellant had done all that the law required of him to render his appeal allowable ? We think not. The question, whether an appeal lay, was for the appellate court, and one of which they had jurisdiction. Until they had decided it, the proceedings were legally pending. Had they decided the other way, the defendant would have been responsible to see the property forthcoming, for the benefit of the creditors. Therefore there was no unwarrantable detention of the plaintiff’s property during the pendency of such appeal.
Whether the property was, or was not, seasonably returned, after the final decree, was a question rightly submitted to the jury, on all the evidence in the case, and was settled by their verdict.
It was argued that the defendant could not lawfully take the possession of the store; but the warrant required him to take possession of all the plaintiff’s estate, real and personal, except such as might be by law exempted from attachment.
If the jurisdiction of the court, and the validity of the proceedings, depended on the proof of the petitioning creditor’s debt, the proceedings could not be quashed or adjudged void till that feet had been determined.
Exceptions overruled.