
    Josiah Payne, vs. Newman Kershaw.
    
      Rule on Sheriff to skew cause why the proceeds of the sale of a schooner, tríade under execution in this case,, should not be * paid over; cause shewn, that the schooner was mortgaged to a third, person, and condition broken, before judgment rendered: Rule discharged.
    
    This was a rule upon the Sheriff, to shew cause why the proceeds of the sale of a schooner, made under the execution jn this case, should not be paid over. The sheriff shewed for cause, that the defendant had mortgaged the said schooner to William A. Caldwell; that the mortgage bore date and had become absolute, before the judgment was obtained by plaintiff, and that the sheriff had been notified and proceeded against in due form, to make the money liable to said mortgage. The presiding judge ordered the rule to be made absolute: from which die sheriff' appealed and now moved the constitutional court to reverse said order.
    
      Clarke, for the motion.
    A mortgage of goods vests an absolute estate in the nuntgagee and differs from a pawn. He may maintain trover, Sic. 3 Dali. 144; 1 Res. 361; 8 Johns. 96; Pow. on Mort. 3; 2 Caines’ Cas. 202; 1 Treadw. 154. There is no such thing as an equity of redemption of personal property; this applies exclusively to real estates: the estate in chattels becomes absolute on the non-performance of the condition. Pow. on Mort. 338; 1 lilac. Rep. 145; 1 Caines’ Cas. 71.
    If the sheriff has sold property in which defendant in execution had no interest, he may retain the proceeds in his own hands, as an indemnity against his liability to the rightful owner. 15 Hast. 271-3; 1 Bay, 300; 2 Burr, 1005; Cowp. 419; Bull. Mi. Pri. 131; 1 M‘ Cord, 402. It is the duty and within the power of the court, to assist and protect the sheriff. 2 Blac. Rep. 1064; 1 Con. Dec. 145; Ex parte, Stevens, 1 ,M‘ Cord, 87.
    The cases, ex parte, Stagg and ex parte, City Sheriff, are cases of mortgage, on real estate; as to which, the equity of redemption exists; this is the subject of levy and sale, unlike the interest of mortgager in personal property. It may lie said that although there is not an equity of redemption, there is an equitable interest in the property. This at most however is a chose in action, which cannot be sold under execution. 9 Johns. 96; 4 Com. Big. 121; 8 East. 407.
    
    We ask no more than that the money may be suffered to remain in- the hands of the sheriff, and the parties left to contest their rights in a suit at law.
    
      Asesor.., contra.
    The plaintiff has a clear right to receive the money made on his execution; and the court ought not to interfere on the mere suggestion of the existence of adverse rights. The mortgage is not recorded, and the sheriff can in no event be liable.
    
      Clark, for motion.
    
      Ax son, contra.
   The opinion of the court was delivered by

Mr. Justice Eager.

If the schooner, sold by the sheriff was not the property of the defendant in execution, the money made ought not to be paid to the plaintiff. The facts set forth in the return are sufficiently strong to render it doubtful whether the defendant had any right of property in the schooner. ■ Under such circnm-stauces, it is safer to leave the rights of the parties to be decided in an action, than to attempt to decide upon them on a rule against the sheriff. The motion in this case must, therefore, be granted.

Mott, and Johnson, Justices, concurred.  