Central Bank v. Prentice , 35 Mass. 396 ( 1836 )

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.