
    Start versus Sherwin.
    Where an equity of redemption is attached on the writ, it is the duty of the officer, upon receiving the execution within thirty days after the judgment,, to levy on the equity of redemption, without waiting for particular instructions .from the creditor.
    
      Otherwise where the land itself is attached.
    And where “ all the right, title and interest11 of the debtor, in land which proved to be under mortgage, was attached, it was held, that the officer, having no instructions from the creditor to levy on the equity of redemption, was not liable for neglecting to do so, unless he knew that he had attached an equity of redemption only.
    This was an action on the case against a constable for neg-1 lecting to seize and sell on execution the right in equity of re- ^ deeming certain real estate.
    At the trial, in the Court of Common Pleas, it appeared that the plaintiff, on the 6th of May, 1820, sued out a writ of attachment against one Hartshorne, which was delivered to the defendant with directions to “ attach or hold to bail ”; and the defendant made a return, that on the same day he attached “ all the right, title and interest ” of Hartshorne in the real estate in question. The plaintiff obtained a judgment against Hartshorne, and an execution was issued upon the judgment. The attorney of the plaintiff told a witness to deliver the execution to the defendant, saying that the defendant would know what to do with it, as there was a special attachment; and the witness delivered it accordingly in September 1820, within thirty days next after the rendition of the judgment, and at the same time communicated to the defendant the remark of the plaintiff’s attorney. At the time of the attachment there were two mortgages on the estate. The defendant did not seize the equity of redemption upon the execution, but, after the expiratian of the thirty days, committed Hartshorne to prison, whence he was discharged upon taking the poor debtor’s oath ; and the judgment remained unpaid. Evidence was produced to show the value of the equity of redemption.
    Williams, justice of the Court of Common Pleas,
    instructed the jury, that, upon these facts, it was the duty of the officer, without further directions, to seize the right in equity and expose it for sale ; and that, if it would have sold for enough to satisfy the execution, the plaintiff was entitled to recover damages to the amount of the execution with interest from the time when it would have been satisfied by the sale ; but that, if the equity of redemption would have produced a less sum, the plaintiff was entitled to recover that sum.
    The jury having found a verdict for the plaintiff, the defendant filed his exceptions to the foregoing instructions.
    
      8. Dana, in support of the exceptions, admitted,
    that if per sonal chattels had been attached, it would have been the duty of the officer to have levied on them; but where an interest in land is attached, the officer has not the means of knowing whether the land itself, or only a right in equity, is attached, unless he has particular instructions from the creditor ; and he therefore cannot know in what manner to levy the execution. Where the officer is in danger of making a mistake, be may require the creditor to show him property to be levied on. Bond v. Ward, 7 Mass. Rep. 123 ; Bull. N. P. 53.
    
      Lawrence, for the plaintiff,
    contended that the defendant should have sold the equity of redemption. By St. 1798, c. 77, §§ 3, 4, an equity of redemption attached is as much within the control of the officer as any chattel, though a different mode of proceeding is required in the sale of it ; whereas n extent on land cannot be made without some agency on the part of the creditor. The expression in the return shows that the defendant knew the nature of the estate which he had attached. [Putnam J. Suppose the mortgage had been paid off after the attachment, and the officer, not knowing éhaí-&ct, had levied as upon an equity of redemption.] Jf would then be negligence in the creditor not to have infsrmed him, and he might in consequence lose his debt.
   The opinion of the Court was read by Putnam J., at the sit^ngs a^er this term, as drawn up by

Parker C. J.

If it appeared in this case that the defendant knew that the land of the debtor was under mortgage, so that his return would necessarily prove that he attached only the right of redemption, the jury would have been rightly instructed by the Court as to his liability. When chattels are attached, the officer is bound, on receiving the execution within thirty days after judgment, to satisfy it out of the chattels, without any special, directions from the creditor ; for the goods attached are presumed to be in the possession or control of the officer, and the presence of the creditor is not necessary to enable him to convert the goods into money. And the same reason exists where the property attached is an equity or right to redeem land mortgaged, for the officer may proceed to execute bis precept without the presence of the creditor. And he is bound to suppose that the creditor intends to get satisfaction of his debt out of the property he has caused to be attached, unless the contrary is shown to the officer.

In the case of land, the rule is different, because nothing can be done by the officer, without the agency of the creditor, who is to show the land to the appraisers, is to appoint one of them, and is to receive seisin in order to complete his title ; so that, unless the creditor, or some one authorized to act in his behalf, be present, the officer cannot proceed. But the return of the officer upon the writ does not show that he had attached an equity only, for the terms made use of would sufficiently express an attachment of the land itself; and, indeed, the same form is frequently used, where it may be uncertain whether the land is under incumbrance or not. In order, then, to charge the officer with neglect in not taking and selling the right of redemption, the jury ought to have been satisfied that he knew that the land was under mortgage, so that nothing but the equity could be attached ; for the officer is not bound to search the records to ascertain this fact. We think, then, that to make the ^diractáo'fi of the judge correct, the jury ought to have been in structed to take the evidence on this point into consideration.

¿Vete trial granted at the bar of this Court.  