
    The Central Bank versus Charles Prentice and Trustee.
    
      Oct. 11th.
    
    
      Oct. 12th.
    
    A mortgagee of personal property, not in possession, is not chargeable as the trustee of tile mortgager ; but a creditor of the mortgager may have a remedy under St* 1829, c* 124, [Revised Stat. c* 90, § 78 et seg.] as well where the mortgagee is in possession, as where he is not.
    The answer of the supposed trustee, Moses Adams, set forth, that the defendant, being indebted to him in the sum of about $ 135, on October 19th, 1835, mortgaged to him certain articles of personal property of the alleged value of $ 355, in order to secure the payment of a note for the sum of $ 300 on demand ; that the property was never delivered to him and was never in his possession ; and that the mortgage was recorded.
    It further appeared, that on August 31st, 1836, the trustee assigned the mortgage and the note to Jonathan Warren, and réceived his note for the sum of $ 140, instead thereof.
    In the Court of Common Pleas, the trustee was discharged. The plaintiff excepted.
    
      ' Barton and Kinnicutt, for the plaintiffs.
    
      C. Mien, for the trustee.
   Per Curiam.

The Court are of opinion, that a mortgagee of personal property, who is not in possession of the property, is not chargeable as the trustee of the mortgager. He is certainly not the debtor of the principal defendant, and has no credit to be charged ; and it is equally clear, that he has no goods, which could be surrendered up to an officer. But a creditor is not without remedy ; the St. 1829, c. 124, furnishes a remedy adapted as well to the case where the mortgagee is in possession, as where- he is not. The decision of the Court of Common Pleas discharging the trustee upon his answer, we think was correct; and the exception is overruled, end the judgment affirmed.  