
    [Lancaster,
    June 7, 1824.]
    ANDERSON and another, Executors of PORTER against NEFF.
    A plaintiff executor, tvho has paid all the costs which jhave accrued or which may accrue in the suit, is not a competent witness, without having- released the commissions to which he may be entitled on the money to be recovered.
    If a deposition be objected to in toto, without specifying the exceptionable parts, this . court will riot reverse the judgment, if any part of it be legal evidence, though other parts may be inadmissible. This is the general rule, to which there may be exceptions, to be decided on as they arise.
    On the 1st May, 1807, A. executed a mortgage to B., which was duly recorded. On the 14th March, 1815, C. entered judgment against A. for 2000 dollars, by virtue of a warrant of attorney for that purpose. There was some evidence of a parol agreement, that C. was not to enter up judgment until a certain time, which had not expired when the judgment was entered, and within which the conveyance hereinafter mentioned was made. . On the 17th March, 1815, A. conveyed the mortgaged premises to D. for the consideration of 2800 dollars, 2300 of which he paid, and agreed to pay to B. the mortgagee, 500 dollars, the balanee then due on the mortgage, and to lift the mortgage.. D. in his lifetime paid part of the balance, and the residue was paid after his death, by his executors, to whom an assignment .of the mortgage was executed on the 23d September, 1818. The premises were levied on and condemned un.der a f. fa, returnable to August Term, 1818, issued by C. the judgment creditor, and afterwards sold by the sheriff to C.
    
      Held, that D. was not entitled to receive out of the purchase money, the balance due. upon the mortgage, at the time of the conveyance, to him, but that C. was entitled to retain'it.
    
      Quere. Whether the regularity of a judgment can be inquired into in another suit, between the ptaintiff in the judgment, and the alienee of land bound by it ?
    This cause was commenced in the Court of Common Pleas of Lancaster county, by virtue of a written agreement, in these words:
    “Agreement to enter amicable action on the- case and to refer.
    
      Robert Jlnderson and Samuel ^ J
    Enter amicable action in the Court of Common Pleas of Lancanter couty, to November term, 1819, to decide the following controversy, that is to say:
    
    “Whereas to January Term, 1815, No. 391, judgment is entered in the said court, in favour of John Neff, against Thomas Clark, Esq. on the 14th day of March, 1815, for the sum of tw6 thousand dollars, -payable in sixty days after date, being the 31st of February, 1815. And whereas, á mortgage was executed by Thomas Clark and wife, on the first day of May, 1807, to Andrew Walker, for the payment of JB 500, on which a balance of 500 dollars, was due with interest, from the 17th March, 1815. And whereas the tract of land containing about 137 acres, situate in the townships of Colerain, and Little Britain, which the said Thomas Clark owned, was conveyed by him since the date of the said mortgage and the entering of the said judgment, to the said James Porter, now deceased, and the said mortgage has since his death been assigned to the said executors, they and the said James Porter, in his life time, having paid the balance due on the said mortgage, to the said Andrew Walker. And whereas the said tract of land above-mentioned has lately been'sold by the sheriff of Lancaster county, as the property of the said Thomas Clark, and has been purchased at the sale by the said John Neff. And whereas, it is now disputed, whether the balance due upon the said'mortgage, which was paid by the said Col. James Porter, in his life time, in part, and by the said executors since his death,, or the amount of the above stated judgment in favour ;df the said John Neff, shall be first paid, for determining which, this-amicable action is now entered. And it is hereby further agreed, that, arbitrators be chosen this day to determine the same. That the said arbitrators be chosen, and their proceedings be in the same way as though this suit were commenced and arbitrated under the act of assembly, regulating arbitrations. In witness whereof, we have hereunto set our hands and 'seals.
    
      September, 13 th, 1819.
    
      John Neff, [seal.] ’
    
      Robert Anderson, [seal.]
    
      Samuel Pusey, [seal.]
    To George B. Porter, Esq. Prothonotary.
    
    The parties, by an agreement endorsed on the above, appointed five arbitrators, who on the 24th December, 1819, awarded, “ That the balance due on the mortgage assigned by Andreto Walker, to the executors of Col. James Porter deceased, shall be first paid, which balance, with interest, calculated to this day, amounts to 635 dollars 58 cents, with costs .of suit, "to be paid by the defendant.” The defendant appealed from the award, and the cause was afterwards tried in the Court of Common Pleas, under an agreement of counsel, that the trial should be on the merits, upon a count for money had and received, and the plea of non assumpsit.
    
    On the trial, the counsel for the plaintiffs, after having read the agreement upon which the action was instituted, and the mortgage therein referred to, offered to prove that the said mortgage was recorded on the 20th November, 1807. The evidence was objected to by the' opposite counsel, but admitted by the court. The confirmation of the sheriff’s sale, and the sheriff’s deed to Neff, together with several other matters, which it-is not necessary to mention, were likewise offered in evidence by the plaintiff’s counsel, objected to and admitted by the court. The ft. fa. under which the property was levied on and condemned, was returnable to August Term, 1818. The assignment to the executors of Porter was dated September 23d, 1818, and recorded on the following day.
    In the course of the trial, the counsel for the plaintiffs, offered JRobert Anderson, one of the plaintiffs, as a witness, having first required the prothonotary to tax all the costs which had accrued, or which in his. opinion might accrue in the cause; which was done, and the amofint deposited in the hands of the prothonotary with a futher sum, Sufficient to cover all the costs which might accrue in the Supreme Court, and a stipulation, that, in case the said Robert Anderson should be admitted as a witness, the said deposit should remain in the hands of the prothonotary, in payment of the costs already accrued, or which might accrue, whatever might be the final determination of the cause. The defendant’s counsel objected to the admission of Mr. Anderson, and the court sustained the objection. The plaintiffs’ counsel then offered to deposit in the hands of the prothonotary, á further sum of fifty dollars, for the purpose above-mentioned, and under a similar stipulation, and again offered Robert Anderson as a witness, but the court again rejected him. The counsel for the plaintiffs then offered to-enter into a recognizance in the penalty of 1000 dollars, conditioned for the payment of all the costs which ever could accrue in the suit, for the purpose of enabling Robert Anderson to become a witness; and then offered him a third time; but the court rejected him and sealed a bill of exceptions upon each rejection.
    
      Samuel Dale, Esq. who was one of the arbitrators by whom this cause had been decided, was then sworn for the plaintiffs, and stated: That one little thing he remembered from the manner in which Mr. Neff told it, more than from any thing else: That Pusey and Neff appeared before the arbitrators and stated their respective cases, without the assistance of counsel: That Neff, in speaking of the bond for 3000 dollars, given to him by Thomas Clark, observed, that Clark gave it to him under a promise, that he would not enter it up until a certain time: That his (Neff’s) language, was nearly this, “ At night on my bed, I thought there was something wrong in this business. I was uneasy. I said Johnny, you had better look to yourself. I think you had better take a trip to Lancaster. Accordingly, next day I got up and went to Lancaster, and entered up my bond, and in a few days after Clark executed a deed,” the witness thought he said, “to Porter.” That Neff said, the witness proceeded, that the judgment was entered before the day the agreement would have been out. He had a faint recollection that Neff spoke of eight days, or eight weeks, or eight something. He understood the deed was made between the time the bond was entered up and the time Aechad agreed to withhold it. He added, that he could not recollect all that passed. His recollection was pretty distinct, as to the judgment being entered up before the expiration of the time agreed-upon, because Neff observed, he was fortunate in going to Lancaster.
    
    The counsel for the defendant, during the trial, offered in evidence, the deposition of Andrew Walker, to the admission of which the plaintiff’s counsel objected, both because the deposition had not been taken by sufficient authority, and because the whole and every part of the subject matter of the said deposition, ivas incompetent; but the court overruled the objection, and permitted the deposition to be read, except those parts which are printed in italics. An exception wás taken to their opinion. The counsel for the defendant, when the deposition was objected to, called on the opposite counsel to specify such parts of it as they deemed exceptionable. . This requisition they refused to comply with, and the court would not compel them to do so.
    The deposition of Andrew Walker, was to the following effect: That when Clark and Porter dealt for the land, Porter became paymaster to him, the deponent. Clark sold Porter the land, with the proviso, that he would pay the deponent the mortgage. Clark requested the deponent to come to his house, and they would settle, and he did so.
    
      1st Question by John Neff: Did you consider the mortgage satisfied, when Porter gave you his obligations?
    
    
      Answer. I considered Porter able enough. We agreed that the mortgage should be lifted. He. was to cáll for it, and if he could not get it, I'was to assist him.
    
      •2d Question. Did Porter pay you any money, on account, before he died?
    
      Answer. He did.
    
      3d Question.' How much money was due from Clark to you, when Porter gave you his obligations?
    
      Answer. I cannot tell. .
    
      4th Question. Did you consider Clark'’s property bound to you for the mortgage, after Porter became paymaster to you for it?
    
    
      Answer. I considered Porter able enough. I still considered it bound, until I was paid.
    
    
      1st.Question by Samuel Pusey. Do you recollect that we paid the balance of the notes thafySorter gave you?
    
      Answer. I do. ;
    
      2d Question Do you recollect the year in which Clark, Porter, and yourself had the settlement?
    
      Answer. I do not: but the obligation will show.
    After the evidence on both sides was closed, the counsel, both of the plaintiffs and the defendant, proposed a number of points to the court, on which they requested tile jury might be instructed.
    They were as follows:. — The plaintiffs points,
    1st. That on the 14th March, 1815, the day on which the judgment was entered by John Neff against Thomas Clark, the mortgage, executed by Thomas Clark to Andrew Walker, and recorded, was existing in full force: and that, therefore, the judgment of John Neff, bound only the equity of redemption of Thomas Clark, in the land, or that part of the land which remained after the mortgage should be satisfied.
    2d. That Thomas Clark and wife having conveyed the mortgaged premises to Col. James Porter in fee, on the 17th March, 1815, he took them subject to the said mortgage; and even although the jury should believe the testimony of Andrew Walker, that Thomas Clark and Col. Porter agreed that the latter should become the paymaster of the mortgagee, and that he accepted him as such, yet after Andrew Walker had received the mortgage money from Col. Porter and his executors, it became in equity, the property of Col. Porter or his executors, who might, if he or they thought proper, have it assigned to him or them, and such assignment would be sufficient to give him the proceeds of the property sold at sheriff’s sale, in preference to John Neff, whoso judgment, when it was entered, only bound the equity of redemption.
    3d. That if the jury believe the testimony of Judge Dale, that John Neff admitted before the arbitrators, that he had entered up his judgment in violation of his agreement, before the time when he ought to have entered it, and that the deed from Thomas Clark to Col. James Porter, was executed before the time when John Neff could legally have entered up his judgment, according to his agreement, that circumstance is conclusive of this cause, and John Neff is bound to pay the sum in dispute, inasmuch as it is only by the violation of his agreement with Clark, that he can have any claim in this cause.
    4th. That where a third person, to whom the estate of a mortgagor has been conveyed after the date of a mesne judgment, discharges the prior mortgage, he is entitled to stand in the shoes of the mortgagee, as against the subsequent judgment creditor, and may take an assignment of the mortgage for his security; the distinction being, between a payment made by the mortgagor himself, who was the debtor, and a person who has purchased his estate bona fide and for value.
    The defendant’s points:
    1st. That inasmuch as it is agreed between the parties, that the mortgage has, since the death of Porter, been assigned to the executors, they and the said James Porter, in his life time, having paid the balance due on the said mortgage to Andrew Walker, it is a payment, and not a purchase of the said mortgage. That said ■ mortgage is extinguished, and plaintiffs cannot recover.
    3d. That as the mortgage and judgment were liens on the land purchased by Porter from Clark, and as said mortgage was paid by Porter and his executors, it is an extinguishment of the mortgage. That the assignment to .Porter’s executors vests no right of action in the plaintiffs, and that a personal right once suspended as gone for ever. ■ . '
    
      3d. That as Porter was the owner of the land on which the mortgage and judgment were liens, a purchase of the mortgage by Porter ^ or his executors, would be an extingishment of the mortgage; that at any rate it would cease to be a lien on the land, and that it would be necessary to resort to Clark for payment of the balance of the mortgage.
    4th. That Clark, having mortgaged the premises to Walker, had nothingto sell to Porter but an equity: That Neff’s judgment, beingsubsequentto the mortgage, bound only that equity, and as that was all that was or could be sold under Neff’s judgment and execution, the mortgagee, or any person claiming under him, can have no claim to any part of the money made by said sale.
    5th. That from the case as stated and filed of record, and the proof made by the plaintiffs and defendant, the plaintiffs are not entitled to recover, butjudgment should be rendered for the defendant.
    6th. That as the property was sold on Neff’s execution, the mortgagees are entitled to no part of the proceeds of the sheriff’s sale.
    7th. That as it is not stated in the agreement the parties filed of record, that the mortgage was recorded, nor that the sheriff’s sale was confirmed by the court, nor that a deed properly acknowledged was given by the sheriff to Neff for .the property, the plaintiffs are not entitled to recover. ,
    8th. That from the ease as stated and filed of record, plaintiffs are not entitled to recover.
    9th. That the agreementof Clark, Walker, and Porter, being to pay and lift the mortgage, as proved by the testimony of Walker, the mortgage was paid, satisfied and extinguished, at the time of the deed to Porter, and that the attempt of Porter and Walker to set it up, is in fraud of their agreement, and would be a complete fraud both upon Clark and his creditors.
    The President of the Court of Common Pleas, after adverting to some of the leading facts, delivered, to the jury the following charge:
    The defendant seemed to consider the plaintiffs as not at liberty to prove any other facts than those stated in the' agreement, and have requested the court to charge you, that as it is not stated in the agreement of the parties, filed of record, that the mortgage was recorded, nor that the sheriff’s sale was confirmed bv the court, nor that a deed properly acknowledged was given-by tne sheriff to Neff for the property, the plaintiffs are not entitled to recover.
    The court are of opinion, that if there was nothing more in the case than the facts, as stated in this agreement, and filed of record, the plaintiffs would not be entitled to recover.
    But the court decided, that the agreement was nothing more than an admission of the facts recited in it, and was not to be considered as a statement of the whole case,, so as to preclude thé proof of such other matters, by either party, as might be material to a correct decision of the cause, and did not contradict the facts stated in the agreement. We, therefore, admitted the other testimony given on the trial.
    
      Andrew Walker, whose deposition has been taken on the part of the defendant, testifies: [His Honour here stated the contents of Andrew Walker’s deposition.]
    Judge Dare testified as follows:
    [The President here read his testimony.]
    The question for your consideration is, whether under the evidence and agreement, your verdict ought to be in favour of the plaintiffs or the defendant.
    We are asked on the part of the defendant, to charge you on three points, relative- to the effect of the assignment of the mortgage to the executors of James Porter. They are these. [He readNo. 1, 2, and 3.]'
    We shall answer these three propositions together. The law is, that where the equitable and legal estate are united in the same person, the former is merged in the latter; as where the owner of an equity of redemption pays off a subsisting mortgage, and takes an assignment of it, it will be intended, that he does it to exonerate his estate from the incumbrance, and that the mortgage is extinguished unless it is made to appear, that he has some beneficial interest in keeping the legal and equitable estates distinct.
    Where a third person, to whom the estate of a mortgagor has been conveyed after the date of a mesne judgment, discharges the prior mortgage, he is entitled to stand in the place of the mortgagee, as against the subsequent judgment creditor, and may take an assignment of the mortgage for his security; the distinction being between a payment made by the mortgagor himself, who was the debtor, and a person who has purchased his estate bona fide, and for value. Whether there are any circumstances in the casé to show, that the two estates,- viz: the legal and the equitable, ■should be kept distinct, is a matter for the jury to judge of under the evidence. Unless some satisfactory reason for keeping up the distinction clearly appears, we ought to adopt the ordinary and natural conclusion, that when the owner of the equity of redemption pays off a subsisting mortgage, he does it to exonerate his estate. We ought, as a general rule, to follow the principle, that in the union of- the’equitable and legal estates in the same person, the former is merged and extinguished. But where there is a special agreement between all the parties interested, that the mortgage shall be paid off by the person holding the legal estate, there must be an end of all further doubt or difficulty upon that point.
    If you believe the testimony of Andrew Walker, and are satisfied that Porter was to pay off, and lift the mortgage, it is the opinion of the court, that the mortgage must be ctmsidered as paid, satisfied and extinguished, at the time of the deed to Porter, so far as respected Clark and his assigns, and that any attempt on the part of Porter and Walker to set it up, would be in fraud 
      
      of the agreement, and a fraud upon Clark and his creditors; and after such an agreement, no assignment made to him or to his executors, would be sufficient to entitle them to the proceeds of the property sold at sheriff’s sale, in preference to John Neff.
    
    On the part of the plaintiffs, we are requested to charge you, that if you believe the testimony of Judge Dale, that John Neff admitted before the arbitrators, that he' had entered up his judgment in violation of his agreement, before the time when he ought to have entered it, and that the deed from Thomas Clark to James Porter, was executed before the time when John Neff could legally have entered up his judgment, according to his agreement, that circumstance is conclusive of this cause, and John Neff is bound to pay the sum in dispute, inasmuch as it is only by the violation of his agreement with Clark, that he can have any claim in this cause.
    In the first place, you are to ascertain whether in fact the judgment was entered before the time agreed upon, because it appears from the record, that the bond was dated on the 21st of February, 1815, and the judgment was not entered until the 14th of March, 1815, twenty-one days after the date of the bond. But supposing there was a departure from the agreement-, I do not think, that we can consider the judgment as a nullity. If it were irregularly entered, parties interested had their legal remedy, to have the irregularity corrected; but after the proceedings which have taken place under that judgment, it is now too late to invalidate it in this collateral way, and it ought to be considered asa good and valid judgment. ‘
    As to the effect of Neff’s judgment, and the sale under it. It is certain, that on the 14th of March, 1815, the day on which the judgment was entered by Neff against Clark, the mortgage executed by Clark to Walker, and recorded, was existing in full force, and that, therefore, the judgment of John Neff, bound only the equity of redemption of Thomas Clark in the land, or that part of the land which remained after the mortgage should be satisfied.
    The purchaser at sheriff’s sale, purchases only the title of the debtor, whatever it may be. If he has but an equity, the purchaser acquires no more. The sheriff sells the interest of the defendant in the execution; he cannot give a better title than the defendant himself had. He, therefore, could’ not sell or affect Walker’s interest. His interest was paramount, and could not be prejudiced. But with respect to the proceeds of the sale of property mortgaged, or subject to prior judgments, unless it be sold subject to those liens, they must be applied to the payment of them in the order of priority.
    But if the purchaser, or the sheriff, refuse to pay the proceeds to the lien creditors, I apprehend the legal remedy would not be the one now adopted. And, therefore, supposing the mortgage unextinguished, and unsatisfied, were it not for the agreement of the parties, this action would not be sustainable. The proper remedy would be a scire facias,* or other process, by which the property purchased by Neff, would be made answerable for the lien of the mortgage. But the agreement of the parties alters the case. They have agreed, that in this action it shall be determined, whether the balance due upon the mortgage, which was paid by the said Col. James Porter, in his life time in part, and by his executors- since his death, or the amount of the judgment in favour of John Neff, shall be first paid, and that this question shall be tried upon its merits on a count for money had and received, and upon the plea of non assumpsit.
    
    If, therefore, you are satisfied, that the mortgage was extinguished by the agreement of James Porter, or by the subsequent payment, you will find for the defendant. If you are convinced, that it was the intention of the parties, that the mortgage should continue a charge upon the land, you will find for the plaintiffs.
    
      Porter, for the plaintiffs in error,
    when about to argue the errors assigned in the 1st, 2d, and 3d bills of exceptions, founded on the rejection of the testimony of Robert Anderson, was informed by the court, that this point had already been decided during the present term, upon which he abandoned these exceptions.
    4. The deposition of Andrew Walker was improperly rejected. The party objecting to a deposition, is not bound to point out the parts which are exceptionable. The burthen should fall on him who offers' it. It is his duty to strike out at his peril, all illegal evidence.
    5. The court did not answer all the questions submitted to them on behalf of the plaintiffs in error, particularly the second point, and so far as they have answered them, they have done so erroneously. It is perfectly clear, that a prior satisfied incumbrance may be brought in for the protection of a subsequent bona fide purchaser, without notice of the defect of title. Powell on Mort. 513, 657, 658. Sugden, 519. 8 Johns. 16S. Hamilton v. Callender, 1 Dali. 420. His situation resembles that of a surety, who has paid the debt of his principal, and who is entitled to stand in the place of the creditor, and- receive all the advantages to which he was entitled. Clason v. Morris, 10 Johns. 525. Having obtained an assignment, Porter occupied the situation of the mortgagee, and as the property was subject to the mortgage when the plaintiff entered his judgment, he cannot now be placed in a better -situation than he then was.
    6. The court below erred in charging, that the plaintiff’s judgment was a lien from its date. • It was entered in violation of his positive agreement, and therefore, must be considered as operating only from the time at which he was entitled to enter it. This being subsequent to the deed to Porter, the land in his hands could not be affected by it.
    
      We further complain, that the court took the whole matter from the jury.
    
      Rogers and Jenkins, for the defendant in error.
    1. The case was submitted to arbitrators on a statement of facts, and it was afterwards agreed to try it on its merits. The case stated in the agreement, to which the parties ought to have been confined, mentioned the mortgage, but was silent as to its being recorded. The action, therefore, cannot be maintained.
    2. Taking the case, however, upon the whole of the evidence, the plaintiffs in error ought not to succeed. The mortgage was recorded, and was prior to the defendant’s judgment. After his judgment, Clark conveyed to Porter for the consideration of 2,800 dollars. The bargain waá, that Porter should pay the amount due upon the mortgage to Walker, which was to be deducted from the purchase money. Porter paid 2,300 dollars, and was to pay 500 dollars more. Unless,, therefore, he pays what was due upon the mortgage, he does not pay the whole of the purchase money. Porter gave to Walker a bond for the balance due, and he now endeavours by an ingenious operation; to put this sum of 500 dollars into his pocket, to the injury of Clark and his creditors. Payment by Porter of the money due on the mortgage, was equivalent to payment, by Clark. Porter being the owner of the land, -the moment the mortgage was paid, it was extinguished, and he held the estate exonerated from the charge. Jacob’s Law Dict’y. Extinguishment. Id. Merger. The error of the opposite argument is, in supposing that by the assignment, Porter acquired a beneficiál interest in the mortgage. Both by operation of law, and the express agreement of the parties, it was paid, not passed over to Porter. This is a conclusive answer to all the authorities cited on the opposite side. Hamilton v. Callender, does not approach this case. It only decides, that if a bond is taken as a collateral security, for a mortgage, the mortgage is not extinguished, but the mortgagee retains his lien until the bond is paid; a position not to be disputed. The right of action upon the mortgage was gone. Porter being the assignee of the mortgage, and the owner of the land which was the subject of it, could maintain no suit; and a personal action, once suspended, is gone for ever. 2 Johns. 147.
    
      3. It is assigned for error, that the court charged, that whether the plaintiff entered up his judgment contrary to his agreement or not, was- of no consequence. It is to be recollected, that the agreement to enter an amicable action; stated the defendant’s judgment to have been entered on a certain day, and no evidence to the contrary ought to have been received. But the court were right in their opinion excepted to. An irregularity in entering a judgment, cannot be taken advantage of collaterally in another action. It is valid until reversed. Lewis v. Smith. 2 Serg. 8? Rawle, 142. • '. '
    4. The objection, that the second point proposed to the court below for their opinion, was not answered, is not well founded. It was distinctly answered, in the negative.
    
    5. With respect to the deposition of Andrew Walker, the'court-below went further than they were bound to do, in rejecting any part of it. The counsel having refused to specify the parts of it to which they objected, if any part was good evidence, the whole was admissible. •
    
      Buchanan, in reply.-
    The intent of the agreement to enter an amicable action, was, to leave every thing open. The great dispute was, whether the defendant’s judgment should operate as a lien from its date. ■ It could not, therefore, be intended by the plaintiffs to confess that point. Besides, it was afterwards agreed by counsel, that the cause should be tried on its merits, which opened the door, supposing it to have been closed by the agreement.
    When the defendant, on the 14th of March, 1815, entered his judgment, there was a prior mortgage on record, on which 500 dollars were due. He knew, therefore, that he only had a lien on Clark’s estate, subject to the mortgage, and nothing has happened to put him in a better situation. On the 17th of March, 1815, Porter purchased of Clark for 2,800 dollars, and agreed to apply ,500 dollars of it to the. discharge of the mortgage. ■ Why might he not defend himself against the defendant to the amount of 500 dollars ? The agreement was between Clark and Porter exclusively The defendant was not a party to it, and could not be injured by it; for it left him just where he was before. When the legal am the equitable estates unite in the same péíson, he may consider ths. latter as merged or not, as best suits him,’ provided no third person is injured. When, therefore, Porter paid the mortgage, he had a right to ask either for a release or an assignment, and the defendant had nothing to do with it. He purchased the mortgage of Walker, and the equity of redemption of Clark. If the opposite doctrine prevail, it will be attended with consequences extensively injui’ious to the common transactions of business. It is very usual for people to advance money, in order to save their friends from incumbrances, about to be put in suit, and in- order to save themselves, to take an assignment of the incumbrance. This will hereafter be considered a dangerous measure, if the plaintiffs in error succeed on this ground.
   The opinion of the court was delivered by

Duncan, J.

The first, second, and third bills of exceptions have been abandoned by the plaintiffs in error. They fell within'the principles of Gephart’s Executor v. Gephart, “that a plaintiff executor, not having released the contingent compensation, in the nature of commissions, which might be allowed to him, on the sum recovered in the action, on the settlement of his- accounts in the Orphans’ Court, is not a competent witness.”

The fourth bill of exceptions, relates to the deposition of Andrew Walker. This deposition was objected to in the whole and every part, by the counsel of the plaintiffs in error, without stating any particular exception, or directing the attention of the court to the matter now objected to. The court struck out such parts of the deposition as appeared to them exceptionable, and I cannot now, when all- attention has been drawn to the minute objections, discover any part of it, which was received in evidence, that ought to have been rejected. But it is unreasonable to expect,, that the court on the trial of a cause, when a deposition is offered, stating many facts, should stop the progress of the cause, to con over a long deposition, and scrutinize every particular in it, with eagle eyes, to find out some error. The party excepting, ought to know the cause of his exception, (and he has an opportunity of examining it at his leisure,) to examine it with a view to discover whether it contains any irrelevant or improper matter. It will not do for him to shroud himself in mystery; object in the lump, and put the court and the adverse counsel on guessing what his objection might be. The opposite party, if the objections had been communicated, might have-withdrawn the particular matter; or the court might have overruled it. A court of error ought not to lend an ear to such covert objections. A party offering evidence, when called on, should state the purpose for Which it. is offered, for on the main question, it might be wholly irrelevant, yetan incident might have occurred during the trial, which would render it material; as where the credit of a witness is impeached, that might bé evidence to corroborate him, which would not be received on the issue. That was the case in Stewart v. Richardson. There the opinion of the court was, that if there hád been a cadi on the party, he should ha^e stated the view with which' it was offered. This court has already decided, that a party objecting to a deposition, should state the ground of his objection, and on much deliberation has come to the conclusion, that where an objection is made to a deposition in toto, if any part of it is legal evidence, not to reverse the judgment, though other parts of it may be inadmissible. This rule, like other general rules, may be liable' to exceptions. When they arise, they will be decided on. The matter objected to may be so very palpable, so directly opposed to every principle of justice, as to strike every man on the slightest investigation. Since the decision of this court on this subject, a case of this nature occurred in the Supreme Court of New York, Jackson v. Hoffy, 20 Johns. 362. The counsel objected to the whole depositions, because they had not been filed. He afterwards objected to reading the deposition of a particular witness, but said no more. Chief Justice Spencer observed, The specific objection was a ground for reversing the judgment, which made it unnecessary to advert to the other made in mass.” Büt he took occasion to remark, that it was Very questionable, whether any other objections, than the-first, were so specific and distinct, as to entitle the party to the benefit of his exception. Good faith, and the convenient administration of justice require, that the counsel who objects to evidence, or excepts to the opinion of the court at the trial, should state the particular grounds of his exception, for the double purpose of calling the attention of the court to the point of the exception, and to offer the opposite party an opportunity of obviating the objection, by additional proof, which, perhaps, had been inadvertantly omitted. Without explanation, the opposite counsel was not bound to answer-such vague objections, nor was-it. the duty of the court to notice them. , ■ ’

The numerous errors to the charge of the court in the plaintiffs specifications, are, in my opinion, confined in very narrow bounds, and cover but a small space. The true questions are, did Neff stand in that state, as to Porter, that he could not in conscience retain the money he received on his judgment, but ex sequo et bono, ought to refund it. I consider the case as open to every investigation, as if it were a bill in equity ; the object of the parties by their agreement, being to try the merits, without regard to form. And secondly, could the executors of Porter revive the mortgage, by taking an assignment of it, so that it might retain its, lien, and be entitled to priority, as if it had never been paid or satisfied ? I cannot fall in with the very ingenious argument of the counsel of the plaintiffs in error, that Neff’s, entering up his judgment at the time he did, was such act of bad faith, as to postpone him to Porter. His debt was a just one; he had a right to secure it by bond and warrant of attorney; the warrant of attorney authorised him to enter it up immediately, without waiting for default of payment, and it is not unworthy, of observation, that the debt was not payable at a distant day, but at the end of sixty days, showing strongly, that iVé^ would not trust Clark, even for that short time, on his personal security, but took one which he could realise instanter. ■ The statement of Neff, as declared by Judge Hale, before the arbitrators, of the conversation between Clark and Neff,. that gentleman has no recollection of; his memory does not serve him to state all that was said, and his impression arises solely from .Neff’s naivete of manner, in stating his nocturnal cogitations, and his conversations and reasonings with himself in his bed, when on that consultation, he determined to enter up-his judgment immediately. Such conversation, I have nó doubt, took place between Clark and Neff. It formed no part of the obligation, and was directly contrary to the written warrant of attorney to enter it up immediately on Clark’s assurance, that the money would be paid in a few days, and request not to enter it up for that time. I do not think the gratuitous assent to that request, should so bind the hands of the plaintiffs. If he had serious apprehensions that his debt would be lost by the delay, there would be a locus penetentim, and there would be nothing unfair in his immediately exercising the power, which his obligation gave him. The event shows, that he took very good advice of himself. The Court of Common Pleas, would not have set aside the judgment on the allegation now made to relieve a purchaser who had neglected to search the records, or any judgment creditor, or to relieve the debtor himself, on proof of such discourse between Clark and Neff, for I cannot see any difference between Porter and Clark in this respect. If Claris brought an action, what would be his damnification ? If Clark could show that he had estate sufficient, that he had no intention of defeating the security which he had given, and that the entry of the judgment had injured him, that would have made another case; but independent of the objection of its being nudum pactum, I cannot see what.cause of complaint Clark has, what equity against Neff, when the facts show, that if Neff had waited the eight days, his debt was gone for ever.

If Neff had in any way led Porter to believe, that he would not enter his judgment until Clark had conveyed to him,' and on the faith of that, Porter had paid,his money and taken the conveyance,- and while the matter was transacting, but before the conveyance, he had entered up his judgment, this would be a fraud on Porter, and Neff ought to be postponed. This would be an unnatural presumption ; such, fraud as ought not to be presumed, and there was not any scintilla of evidence, that Neff had any knowledge of the treaty; and if he had, still there could be no fraud in entering up. his judgment, because it was the duty of the purchaser to examine thé record. Porter and Neff, never..came in contact with each other. As between Clark and Neff, Neff committed no fraud on Clark, but prevented Clark from committing a fraud on him: for it would have been fraudulent in Clark, to request Neff, not to enter up his judgment for eight days,, and. in the mean time to convey the very security which the warrant of attorney was intended to reach. As between Porter and Neff, there was no communication or privity; no combination between Clark and Neff to defraud Por ter. A Court of Chancery would notinterpose and take away this plank from the creditor, on-the shipwreck of Clark’s affairs. I have considered this action as a billin Chancery, containing all the facts given in evidence, and on the whole of this case, I can see nothing unconscientious in retaining the fruits of it. If Neffhzs obtained an advantage from Porter’s purchase and extinguishment of the mortgage, it is an advantage not gained by any fraud committed by him. He did nothing clandestinely as to Porter. The injury of Porter arises from his own negligence, and from his confidence in Clark, without exercising common prudence in searching the records, and it is a maxim in equity, that he who trusts another, without taking security, shall suffer and not he who has not trusted, but taken a security. So far I think the court was right.

I have considered this case as if Neff’s judgment could be inquired into in this collateral action between Porter’s executors and him;, a proposition which it might be very difficult to maintain, particularly as there has been a judgment on the scire facias. But from the view taken of the whole case, it has not been deemed necessary to give any opinion on it. It is at least a matter of very doubtful propriety.

The remaining question is, was this a subsisting mortgage on which a scire facias might be sustained against the terretenants? There has been a loss, perhaps solely arising from the change of the times, and the fall in the price of land, by which so many have been ruined. The mortgage was recorded prior to the defendant’s judgment. After the defendant’s judgment, Clark conveyed to Porter, The consideration was 2800 dollars. Porter paid 2300 dollars, and became, bound to discharge the 500 dollars, due on this mortgage. Porter became paymaster to Walker, the mortgagee, with an express engagement that he would pay Walker. Walker swears that he and Porter agreed that the mortgage should be lifted. Porter gave his obligation to pay it, paid part and the residue has been paid, by the plaintiffs, hisexecutors. Neff issued his fi. fa to Jlugust, 1818. On the 30th June, 1818, the property was levied on and condemned. The plaintiffs do not take the assignment of the mortgage until 23d •September,■ 1818. There was no agreement between Porter and Walker, respecting an assignment; it was payment; ’this very mortgage was part of the purchase money. How can the intervention of Neff’s judgment, change it into an assignment? When Porter died, it was payment and satisfaction; can it be set up again to overreach Neff’s. judgment? Without questioning the right of parties to come to an agreement, that the mortgage shall be assigned to a purchaser for his security, there was no agreement to this effect. Clark, the mortgagor, Walker, the mortgagee, Porter, the Vendee, all concurred in this one object; payment and satisfaction. Assignment and keeping the mortgage up, to secure the purchaser, were not in the contemplation of any one of the contracting parties. They were not thought of until the danger arose from Neff’s judgment, and the unexpected insolvency of Clark. The presumption of law is, that Porter had notice of this judgment, and knowing it, went on with his contract with Clark and Walker. The assignment was'clearly an after thought. The law is with Neff. His equity is equal to Porter’s, and where the equity is equal, the law must prevail. Equity will not deprive a creditor of any security he has obtained, unless he has acted unfairly with regard to others. Hamilton v. Callender, only proves this, that taking a collateral security, does not extinguish a mortgage. The law of England, with respect to using satisfied incumbrances to protect purchasers, has no relation to mortgages in Pennsylvania. Our act of assembly puts mortgages on a different footing.. The legal estate never vests in the mortgagee as absolute owner of the land, unless he purchases under, a levari facias. There, after the day of payment and foreclosure, the title is in the inertgagee, and relief is granted in Chancery, because the party is without remedy at law; and equity will grant the, remedy on what terms it pleases. But the act of assembly precludes all necessity for such interference. Redemption, here, is not a principle of equity, but a legal right.. The act expressly confine? the remedy on the rnort- ^ gage, to the recovery of principal and interest, The judgment on the mortgage, • and the levari facias are for the principal and interest. There is no penalty, nor judgment for a penalty. As well might the court refuse to stay proceedings on a single bill, till a subsequent debt was discharged, as in the case of a mortgage. In the execution, in both, no more can be levied than the principal and interest. These principles were settled in Dorrow v. Kelly, 1 Dall. 144. and have prevailed invariably. There'is no natural equity in tacking debts, and where it interferes with the rights of others it is most unjust. A mortgage is but a security, for the payment of the debt, and when that is paid or extinguished, it can never be resuscitated. Wentz v. Dehaven, 1 Serg. & Rawle, 317. The case of Denn v. Wynkoop, 8 Johns. 173, was decided on its own circumstances, and upon the agreement of the parties. The covenant indorsed on the mortgage was a discharge, neither in law nor in equity. It never was payment nor intended' as such. It would have been contrary to the express agreement of the parties, reduced to writingatthe time. The covenant on the mortgage was a necessary instrument. All the instruments; the mortgage by the husband and wife of the wife’s land, the release by the husband to the mortgagee, and the covenant, would all be consti'ued as but one conveyance; the endorsement on the mortgage, a link in the chain of conveyance, which if it had affected the execution of the mortgage, would have defeated the estate it was intended to secure. The mortgaged interest was never reduced; the land was taken for the debt, and Ludlow retained the mortgage, to secure his title, as the release of Barton, (the husband)-alone, did not secure the fee.' The general principles, as applicable!*) the cause on trial, were properly stated, and the judgment must be affirmed.

Iudgment affirmed.  