The right of redeeming personal property mortgaged or pledged, is not liable to attachment, as such;1 such interest can be reached only by the provisions of Stat. 1829. ch. 124. hereafter referred to.

Chattels actually in use, are exempted from attachment, so long as they continue so. Thus wearing apparel, when worn, cannot be attached. So a boat, cable, or anchor, belonging to a vessel, when they are in use, and necessary to the safety of the vessel, are not liable to attachment. But when not so in use, or necessary, they may be taken.3

Whether a stage coach, when actually travelling, be liable to be stopped and attached on mesne process, is not settled. But where one was attached, about the time fixed for its departure, when part of the horses were fastened to it, and the passengers were engaged and ready to take their seats, and another, which had been driven into the yard of the tavern, where it was accustomed to put up, at the place of its destination, but had not distributed all its passengers, both attachments were holden valid.^

Certain articles of personal property have been exempted from attachment, in this Commonwealth, by

statute.

By Stat. 1805. ch. 100. s. 1. the wearing apparel, beds, bedsteads and bedding, and household utensils, of any debtor, necessary for himself, his wife and childthe tools of any debtor, necessary for his trade, or occupation, the bibles and school books, which may be in actual use, — together with one cow, and

ren,

one swine, - are altogether exempted from attachment on mesne process, or levy on execution: Provided, that the beds and bedding exempted, shall not exceed one bed, bedstead and necessary bedding, to two persons, and household furniture, the value of fifty dollars, upon any just appraisement.

Under the exemption of beds, in the above statute, it has been holden, where the debtor's family consisted of himself and wife and three small boys, that two beds only were exempted from attachment, those being all that were necessary for the family, though, if the children had been of different sexes, the case might have been otherwise.1

Under the exemption of one swine, it has been holden, that a swine, when killed, is protected from attachment and seizure, as well as when alive.2

The term tools in the foregoing statute, it has been holden, was used to designate those implements, which were commonly used by one man, in some manual labor necessary for his subsistence, and does not extend to complicated machinery, as a printing press, requiring many hands to set it in motion.3

3

So printing-types and forms, have been holden not to be tools necessary for the trade or occupation of a printer, within the foregoing statute, and therefore are not exempted from attachment, and execution.*

5

In Howard v. Williams, it is said by the court, that "the design and the effect of the law are, to secure to handicraftsmen, the means by which they

1 Glidden v. Smith, 15 Mass. Rep. 170.

2 Gibson v. Jenney, 15 Mass. Rep. 205.

3

Buckingham v. Billings, 13 Mass. Rep. 82.

Danforth et al. v. Woodward, 10 Pick. Rep. 423. 2 Pick. Rep. 80.

are accustomed to obtain subsistence, in their respective occupations. The exemption is not limited merely to the tools used by the tradesman, with his own hands, but comprises such, in character and amount, as are necessary to enable him to prosecute his appropriate business, in a convenient and usual manner; and the only rule by which it can be restricted is, that of good sense and discretion, in reference to the circumstances of each particular case. It would be too narrow a construction of a humane and beneficial statute, to deny to tradesmen, whose occupation can hardly be prosecuted at all, much less, to any profitable end, without the aid of assistants, as journeymen and apprentices, the necessary means of their employment." accordingly, where the debtor himself worked on watches, and his apprentice or journeyman on jewelry, and the jury found the debtor's principal business, was that of a jeweler, it was holden, that the tools used by the apprentice or journeyman, were exempted.

And

Whether, if a debtor have two distinct trades, his tools used in both be exempted from attachment, and if not, whether he, or the officer may elect which tools shall be attached, is left undecided, by the case last cited.

Implements of husbandry, necessary for tilling land, are not, within the Stat. 1805. ch. 100. exempted from attachment, or seizure on execution.1

By Stat. 1813. ch. 172. six sheep, not exceeding the value of thirty dollars, and two tons of hay; by Stat. 1817. ch. 108. one iron stove, for each building occupied by the debtor or his family, and used exclusively for warming the building;-and by Stat. 1822.

ch. 93. s. 8. a tomb, in use as a cemetery for the dead; are exempted from attachment, and seizure on execution.

By Stat. 1832. ch. 58. fuel of the value of ten dollars or less, belonging to any householder, and procured and designed for the use of such householder, in his family, is exempted from attachment on mesne process, and execution.

SECT. III. WHAT CONSTITUTES AN ATTACHMENT OF REAL ESTATE.

In order to attach real estate, upon a writ of mesne process, it is not necessary that the officer should view, or enter upon, the land. "The attachment of real estate upon mesne process," says C. J. Parker, in the case of Perrin v. Leverett,' "is with us, almost entirely symbolical. The tenant is never dispossessed by it. The officer may go upon the land, in the dead of night, attach the land and return his precept; and without any act of notoriety whatever, and indeed, with the writ in the officer's pocket, until the return day, a lien is created in favor of the attaching creditor. Nay more, if he never set foot upon the land, but make a return, that he has attached it, there seem to be no means of questioning the fact."

A simple return, therefore, by the officer, that he has attached the real estate of the defendant, is sufficient. And, in practice, the officer simply minutes upon the writ, as soon as it is put into his hands, the exact time of his receiving it, and in the most general

1 13 Mass. Rep. 128.

manner, the estate attached; and if the return be subsequently made up, and the summons served in proper season, all the estate specified in the return, is considered as having been attached at the time of the original minute upon the writ. Some such memorandum as the above, however, must always be made by the officer, at the time he receives the writ.

As the officer does not take or keep possession of the land, it may be attached by other officers, and each attachment will take effect, in the order of time, in which it is made, subject to the rights of any previous attaching creditors. The same land, therefore, may be attached, at the same instant of time, upon different writs, by two different officers. And as the title, which each creditor would obtain, under a levy upon the real estate so attached, would be good, were it not for the other, they become, by the levy of their executions, tenants in common of the land.1

Pews. By Stat. 1795. ch. 53. all pews, and rights in houses of public worship, shall be considered as real estate. And by Stat. 1822. ch. 93. s. 7. it is provided, that whenever a pew shall be attached, or taken in execution, notice thereof shall be given in writing, by the attaching officer, to the clerk of the parish or religious society, holding the church or meeting-house, in which such pew is situated, or left at his dwelling house, or usual place of abode.

And for the attachment of a pew in a meeting-house, upon mesne process, it is not necessary for the officer to enter the house.2

1 Shove v. Dow, 13 Mass. Rep. 529. Watson et al. v. Todd et al. 5 Mass. Rep. 271.

2 Perrin v. Leverett, 13 Mass. Rep. 128.