
    Choteau, Merle, and Sandford v. Thompson and Campbell.
    A mortgage lieu to indemnify mortgagees against loss by reason of their having accepted drafts for the accommodation of the mortgagors, is not necessarily lost by a change of the evidences of liability, as where the first acceptances are taken np with the proceeds of like acceptances made for that purpose.
    A waiver of objection to the competency of a witness so as to allow his deposition to be taken in a cause, is a waiver during the whole progress of the cause, and the objection can not be insisted on when the witness is called to give a second deposition in the same cause.
    The practice in Ohio is to take tne deposition of a defendant in chancery without leave; subject to the right of the party against whom it is taken to except to it.
    In chancery. Reserved in Hamilton county
    Under the order of reference in this case (see 2 Ohio St. 114), the complainants took further testimony; among others, that of ¥m. H. Campbell, which was in substance as follows: The acceptanee of Choteau, Merle & Sandford to four drafts; one dated June 22, 1847, for §4,000, at six months, drawn by Thompson & Campbell; one dated July 3, for §1,500, at six months, drawn by Thompson & Campbell; one dated June 21, 1847, for §2,000, at four months, drawn by E. Davis, in favor of Thompson & Campbell; and one dated June 19, 1847, for §2,500, at four months', drawn by Thompson & Campbell, are in the handwriting of G-uilliaume Merle. Was a member of the firm of Thompson & Campbell during the time the drafts were made. E. Davis was the agent of Choteau, Merle & Sandford, at Cincinnati, during that year. The name on the draft drawn by *him is in his handwriting. There was [425 a letter of credit given according to the proviso in the mortgage, and under that letter of credit, Choteau, Merle & Sandford became liable for §5,000, which amount is still owing by Thompson & Campbell. We drew three separate drafts against that letter of credit; one dated October 9,1845, for §2,000; one dated October 21, for §1,500 ; and one dated November 3, for §1,500. Do not know where that letter of credit is; the cashier of the Lafayette Bank can not find it. It was deposited in the Lafayette Bank when we negotiated the drafts there. The purport of it was to authorize -us to draw to the amount of §5,000 upon themselves. We received another letter of credit from Choteau, Merle & Sandford, in July, 1846. We used it by having drafts discounted at the Lafayette Bank; one, July 30th, for §1,500; one, August 17th, for §2,000; and another, September 12th, for §1,500. The four drafts first described have this connection with the six drawn under the letters of credit — the debt is the same that was originally intended to be secured by this mortgage. The original drafts were renewed, sometimes for the same amounts, and sometimes for different amounts, owing to the state of the money market and the facilities for getting a discount. Since the drawing of the six first drafts, the liabilities of Choteau, Merle & Sandford have never been less than §10,000 on the letters of credit. The drafts may have been temporarily reduced two or three thousand dollars by their payment by Choteau, Merle & Sandford, before renewing them. There were always drafts out to the amount of seven thousand dollars. The first six drafts were negotiated on the same day they were dated, or within a day or two afterward. Choteau, Merle & Sandford paid all the drafts. We remitted the money to them, and charged it to them. Four or five days before a draft matured in New York, I got another one discounted, and remitted the money to Choteau, Merle & Sandford to pay the one maturing. From the time the first mortgage was given, the five thousand dollárs was never decreased. 426] After the second mortgage was given, and *the drafts were increased to ten thousand, Choteau, Merle & Sandford were liable for that amount all the time, except on the one or two occasions of the reduction to seven or eight thousand by their payments.
    On this testimony, and other evidence relating to the other claims, the master reported adversely to the claim of Gregory, Burnet & Co., favorably to that of Bailey & Smiley, on lots 23 and 24, against the claim of Bradford & Co., as wholly unproven, recognizing the lien of Greenwood as fully established, and giving preference as to the fund representing lot 23 to the claim of Choteau, Merle & Sandford. In a written paper submitted to the master, Choteau, Merle & Sandford abandoned all claim to a lien under the several extensions of the mortgage, and relied on the first mortgage alone.
    The defendants excepted to the report of the master as follows:
    1. Because the master reports the priority of lien on lot 22 in favor of the complainants, Choteau, Merle & Sandford, when, from the evidence and exhibits in the case, it should be in favor of the claim of said Greenwood.
    2. Because the claim of the complainants, as set forth in their bill and exhibits, and the accounts attached to the answer of Choteau, Merle & Sandford to the cross-bill of G-reenwood, as well as the account attached to the former deposition of Wm. H. Campbell, show that nothing is due to complainants on account of any claim under said mortgage, prior to the 14th day of January, 1847, the time at which Greenwood’s lien attached.
    3. Because from the evidence it appears that Campbell & Thompson, the mortgagors, were carrying on said mills for the joint interest of themselves and complainants (the mortgagees), and their claim should have been postponed to the liens of the mechanics who furnished the machinery, engines, work, and materials for the same.
    4. Because the master received and acted on the testimony of 427] Wm. H. Campbell, one of the defendants (which *is incompetent), and because the same was not authorized by the court to be taken; and because the evidence of said Campbell does not establish the priority of complainants’ claim, and is inconsistent with the complainants’ claim, as made by their bill.
    5. Because said report is in other respects contrary to the evidence.
    
      Woodruff & Hopkins, for the exceptions.
    
      Mills & Hoadly, for complainants.
   Thurman, C. J.

¥e think the testimony fully warrants the finding of the master, that $5,000 of the present indebtedness of Thompson & Campbell to the complainants, originated in 1845, and is covered by the original mortgage, executed by the former to the latter. True, the evidences of indebtedness were, from time to time, changed ; that is, the first acceptances of the complainants covered by the mortgage, were taken up by the proceeds of other drafts of Thompson & Campbell, drawn upon and accepted by the complainants ; and this process of renewal went on until the amount of the original acceptances, $5,000, was embraced in the drafts mentioned in the bill. This was done without any intention of releasing or varying the mortgage security; the debt continuing without the least interruption, though the evidences of it were different at different times. That those changes iu the mere evidences of indebtedness did not affect the lien of the mortgage is very evident from the cases of Patterson v. Johnson, 7 Ohio (pt. 1), 225, and Brinckerhoff v. Lansing, 4 Johns. Ch. 65. As this lien is of an earlier dato than that of either of the other parties to the suit, the master was correct in giving the complainants the priority complained of.

I have spoken of the first acceptances given by the complainants as creating a debt due them from Thompson & Campbell, the latter having been debited with them according to mercantile usage in such cases. But if it be more proper to say that they merely constituted the relation of ^principal and surety be- [428 tween the parties, and that the mortgage is to be regarded as an indemnity merely, the case will not be different in principle, as the before-mentioned authorities fully show. This disposes of the first two exceptions.

The third exception is unfounded in fact. The testimony does not show that the mills were run for the joint interest of Thompson & Campbell and the complainants. There was no community of profit and loss, nor any joint ownership of property between them. On the contrary, the latter were merely the commission merchants of the former, receiving and selling property, and making advances as commission merchants are accustomed to do.

As to the fourth exception, Campbell was a competent witness. If he was not wholly disinterested, as complainants contend, it must be admitted that his interest was, at least, evenly balanced.

Besides, his first deposition was taken and used without objection. If he is incompetent now, he was equally so then, and the parties knew it. Having failed to except to that deposition, they waived the objection to his competency; after which they could not interpose it to prevent his again testifying in the same case.

That his deposition was taken without a previous order of court is immaterial. The practice in Ohio is to take the deposition of a co-defendant in chancery without leave, subject to the right of the party against whom it is taken to except to it. This practice is indispensable to prevent delay, especially in the courts that sit but once a year.

The deposition does, with the other testimony, establish the priority awarded to the complainants by the master; and if it is inconsistent with the allegations of the original bill, which we do not affirm, that objection is removed by the amendment to the bill.

The last exception is, that the report is contrary to the evidence. We do not think so.

As to the suggestion made at bar, that some parts of the ma-429] ckinery on lot No. 22 were not fixtures, and therefore the *complainants’ mortgage was not a lien upon them, I may remark, first, that no such pieces of machinery have been specified; secondly, that the objection sounds rather strange in the mouth of a party setting up a mechanic’s lieu upon this very machinery as a part of the freehold ; thirdly, that it comes too late after all the parties, pleadings, and orders of appraisement and sale have treated the property as a part of the realty, and it has been appraised and sold as such; and lastly, that we see nothing in the evidence to satisfy us that its true character has been mistaken.

The exceptions to the master’s report must be overruled, the report confirmed, and a decree be entered accordingly.  