¶1This is an action of tort for the conversion of personal property not covered by the mortgage referred to in Simmons v. Carroll, post, 428. The defendant, a deputy sheriff of Franklin County, attached the property sued for on January 31, 1916, by virtue of a writ in favor of Samuel Freedman, of Athol, against the plaintiff, a resident of Orange, Franklin County, and placed the property in the hands of a keeper, but did not remove it from the premises of the plaintiff. On February 7, 1916, the defendant went to the plaintiff’s farm and notified him that “the prior writ had been dropped,” and attached again the same property and removed it from the premises. This writ (a trustee process in which Hattie B. Simmons of Orange was summoned as trustee) was returnable before the Superior Court in Worcester County. The writ dated January 31 was never entered in court. On February 17 the trustee process was dismissed by the Superior Court, as it was improperly made returnable in Worcester County instead of Franklin County where the trustee lived, the court denying the motion to transfer the case to Franklin County.
¶2On February 11, 1916, the present action was brought. On February 23, on a writ between the same parties, the defendant again attached the property, and it was sold. At this sale the plaintiff appointed an appraiser. None of the property has been returned to the plaintiff.
¶3The judge of the Superior Court in his memorandum stated that he was unable to find that on February 7 the property was in the possession of the plaintiff, and ruled that the defendant was without authority to attach the property on that day. He further ruled that the attachment made under the trustee process of *427February 7, returnable in Worcester County, was without authority and was invalid. He found that the plaintiff was entitled to recover for the property not covered by the mortgage, in the sum of $762.58.'
¶4The defendant requested the judge to rule that the defendant “acted under precepts which justified his actions,” and that “the trustee writ . . . returnable to Worcester County was not void but only voidable . . . and justified the acts of the defendant in moving the property.” These requests were refused.
¶5Before the defendant attached the property on the third writ (on February 23,1916), he had already attached the property and placed it in charge of a keeper on the first writ; and, while in the possession of this keeper and not in the possession of the owner, the property was attached and taken away from the plaintiff’s premises under the second writ. To justify the acts of the defendant it must be shown that the attachment was a valid one and made under legal process. The defendant attempted to justify under the second writ. It was an attempt to make an attachment under a writ in trustee process returnable in Worcester County, when the trustee was named as residing in Franklin County, and when the property was not in the possession of the mortgagor. While it was on the plaintiff’s farm, it was in the hands of the defendant’s keeper and the possession had not been restored to the mortgagor before this attachment was made. The defendant attempted to attach all the property on this writ as mortgaged property, and he can justify his acts in this proceeding only by showing that the attachment was authorized by law. To justify the officer when mortgaged personal property is attached and the mortgagee is summoned as trustee, the property must be in the possession of the mortgagor. Porter v. Warren, 119 Mass. 535, 537. Drysdale v. Wax, 175 Mass. 144. Jenness v. Shrieves, 188 Mass. 70. Shapira v. Walker, 225 Mass. 451.
¶6The defendant cannot protect himself under the third writ. The property had been attached and taken from the plaintiff’s farm and the present action had been brought before the third writ was issued. The fact, that the plaintiff appointed an appraiser at the sale of the attached property under the third writ, is not a waiver of the defendant’s conversion. His participation in the proceedings by the appointment of an appraiser does not show an intention to *428abandon his action against the defendant or to waive his right to recover for the loss of his property. See in this connection Schwartz v. American Surety Co. of New York, 231 Mass. 490.
¶7As the officer was without justification in attaching the plain-? tiff’s property and the process under which he acted afforded him no protection, it becomes unnecessary to consider whether the second writ, returnable in Worcester County, is void or merely voidable, when it showed on its face that the sole trustee was a resident of Franklin County.
¶8 Exceptions overruled.