If the plaintiff had done any act of violence not justified by his writ, as by breaking a dwelling-house, so that the unlawful act had been the means of his obtaining possession, it would have been within the case of Ilsley v. Nichols, 12 Pick. 270, and the attachment would have been void. But if the attachment was valid, he had a right to hold the property, unless he abused the authority given him by law, in holding the personal property when he had no right to do so. If the property was under mortgage, the creditor had the power either to summon the mortgagee as trustee of the debtor, or to take the property specifically, leaving the mortgagee to make his claim and give notice. Rev. Sts. c. 90, §§ 78, 79; St. 1844, c. 148.
Here the ground of complaint on which the plaintiff relies is, not that the goods were not rightly attached, but that his stable *69was held too long as a place to keep the goods. The only abuse alleged is the defendant’s abuse of his right of entry, or, in other words, an abuse of his authority in regard to the plaintiff’s right of possession, to the extent of about four days’ rent of his stable.
It appears by the facts stated in the bill of exceptions, that the personal property was under mortgage, and that after the attachment and on the same day the plaintiff surrendered the property to the mortgagee, who had been summoned as his trustee. The defendant had the rightful possession of the goods during the whole time, until they were rightly surrendered to the mortgagee. After that, the plaintiff had no right to use the property, and sustained no special damage for which he can recover in this action. Exceptions sustained.