¶1From the detail of facts, in this case, it appears, that after the property was attached, it was suffered to remain in the house occupied by the debtor and others, six days, and, a part of the time, in the room wherein he resided ; that two days, viz. from the 10th to the 12th, it was not in the custody of any one ; and that two days more, that is, from the 12th to the 14th, it was not in the actual possession of Jones, or under his oversight, nor in the actual possession of any person. Nor is the slightest necessity for this conduct made to appear. It is not stated, that the plaintiff was so much occupied, by other important business, as to be unable to exercise personal attention to the subject, or to procure a person to do *273it, or to remove the property ; and yet the exigency of the case required it. Jones refused to be the depositary of the and of consequence, they were not in the custody of any one. They, likewise, were within the house, and within the power of the debtor, and all this with the plaintiff’s knowledge. The court should have charged the jury, that the lien by attachment had terminated ; and that, on this account, the plaintiff, not having a special property in, or the actual possession of the goods, could not maintain trespass.
¶2The personal estate of every debtor is liable to be taken on process, and held to respond the judgment that may be rendered against him. This is effected, not by permitting it to remain in his possession, but by fastening upon it with a writ of attachment, and holding it in the custody of the law. Possession of personal property is the only indicium of ownership ; and the suffering of the debtor, after the service of an attachment or an execution, to retain the possession, is prima facie proof, that the attachment or execution levy is fraudulent in respect of creditors. It is of the very essence of a lien by attachment, that possession be taken and held ; and when this is relinquished, there is a termination of the lien, and the general owner is remitted to his property unencumbered. To this point the decisions of the courts are uniform and numerous. Chancellor v. Phillips, 4 Dall. 213. United States v. Conyngham & al. 4 Dall 358. Barnes & al. v. Billington & al. 4 Day 81. n. Burrows v. Stoddard, 3 Conn. Rep. 160. 164. 431. The plaintiff then, having abandoned the possession of the goods attached, the lien upon them was gone, and they were out of the custody of the law, when taken and carried away by the defendant. Of consequence, the plaintiff had no special property or possession, and cannot sustain the action of trespass.
¶3Instead of charging the jury with the principles before-mentioned, and leading their minds to the enquiry whether the goods attached were in the plaintiff’s custody, at the time of the alleged trespass, the judge took from them the consideration of this, the only material question in the case, and assumed a new principle ; one, in my opinion, altogether inadmissible. They were instructed, “ That it was immaterial whether Jones consented to take the care and charge of said goods f@r the plaintiff after the 12th of May ; for that the property was out of the possession of Beckwith; and, of course, he could not *274dispose of it to defeat the attachment.” The charge proceeds the hypothesis, that whether the plaintiff had possession Gf die goods or not, was an irrelevant enquiry, as the defendant did not actually possess them. It seems to have been forgotten, that the plaintiff was bound to establish a title, which he could do only by shewing a legal attachment and the actual custody of the goods under it; and if Beckwith had not possession, that it would be of no avail in the plaintiff’s favour. Beckwith, however, had not only title, but the possession also, in contemplation of law. When personal property is not in the actual possession of anyone, by the established law, it is in the constructive possession of the general owner, and he may sell and dispose of it at pleasure. Bro. Abr. tit. Trespass. pl. 303. 346. Latch 214. 2 Bulstr. 268. Bac. Abr. tit. Trespass. C. 2.
¶4On the whole, there is no doubt, that the charge of the judge in this case was incorrectand, of consequence, a new trial is advised.
¶5New trial to be granted.