concurred in sustaining the exceptions, but from that part of the opinion which precludes the mortgager, (when sued, after a foreclosure, for the balance due on the mortgage debt,) from making claim for rents and profits received by the mortgagee previous to the foreclosure, he dissented, and observed ; — “A mortgage is merely collateral to the principal debt, why then should it not be treated as other collateral security? Were stocks of any kind or choses in action mortgaged, and these collaterals applied in payment, and an action brought to collect a balance, can there be any doubt that our courts would require the party thus claiming a balance to account for the interest or dividends collected, as well as for the principal, or value of the stocks? The same principle must apply to mortgages of real estate. When a party claims a balance, he must account for all he has received from the collateral security in his hands.

. It will be'found that the rule laid down in the cases, cited by Judge Tenney, originated in combating the doctrine of the English Chancery Courts, that by an absolute foreclosure of the mortgage the whole mortgage debt was thereby paid, or when the mortgager was allowed to claim a balance, the foreclosure should thereby be reopened. It is this English doctrine of absolute payment, that is so ably refuted by Judge Story in the case cited. I do not find that the facts in any of the cases relied upon raise the question of accounting for rents and profits, nor that the attention of the courts was called to that question. Hence the general terms in which the doctrine announced in the opinion of Judge Tenney is stated.

The equitable, and I think, the true doctrine applicable to this class of cases, is thus stated by Parsons, C. J., in the *287case of Newhall & al. v. Wright, 3 Mass. 138.— “If neither the mortgager nor any subsequent mortgagee will redeem, the presumption is violent, that the land, together with the rents and profits received, is not worth more than the debt and interest due. .If it should be worth less, and the first mortgagee should sue the mortgager to recover the deficiency, in that suit the mortgager will be allowed not only for the value of the lands when the mortgagee took possession, but also for all the rents and profits he received after possession."

This action is upon a judgment, for the purpose of obtaining a balance, claimed to be due thereon, a part having been satisfied by means of the foreclosure of a mortgage of real estate, given by the defendant as collateral security for the original cause of action.

Objections were made at the trial, by the plaintiff, to the depositions of Samuel Pillsbury and other persons, offered by the defendant, on the ground, that the notice of their taking, was not so long prior to the caption, as the statute requires. The justice has certified, that “ the adverse party was duly notified to attend, as will appear by the notice annexed.” By this reference, the notice itself makes a part of the certificate, and shows that the plaintiff and his attorney had their residence at the time in Machias, in the county of Washington, a distance of one hundred and ten miles from the place of caption; and at thirty minutes after eight o’clock in the afternoon of Sept 27, 1852, were notified, that the depositions objected to, would be taken at two o’clock in the afternoon of the next day. By R. S. c. 133, § 9) amended by statute of 1842, c. 31, § 17, the notice is required to be such, that the adverse party shall be allowed, between the service of the notice, and the time appointed for the taking the deposition, time for him to travel from his usual place of abode, to the place of caption, not less than at the rate of one day for every twenty miles. It is very clear, in this case, that the plaintiff was not legally notified of the taking of the depositions. The appearance of the attorney and the putting of interrogatories by him, were under a written protest, that the plaintiff was not bound, by the notice, and could not be regarded as a waiver of a right to object on that account.

It may be regarded as the settled doctrine of the law of this State, that the holder of a personal obligation, (or a judg*284ment thereon,) for which a mortgage of real estate has been given, as collateral security, may recover the balance of the debt due, deducting the value of the mortgaged premises, at the time. of the foreclosure. Tooke v. Hartley, 2 Bro. Ch. 125; Amory v. Fairbanks, 3 Mass. 562; Hatch v. White, 2 Gal. 152; Omaly v. Swan, 3 Mason, 474; Dunkley v. VanBuren, 3 Johns. Ch. 330 ; Globe Ins. Co. v. Lansing, 5 Cowen, 380 ; Lansing v. Goelet, 9 Cowen, 346; Hughes v. Edwards, 9 Wheat. 489; 4 Kent’s Com. Lecture 57, p. 173 and seq., (1st Ed.)

In determining the sum to be allowed on account of the foreclosed mortgage, the excess of the amount of the rents and profits over and above that expended in repairs, necessary improvements, &c., is not to be added to the value of the real estate at the time of the foreclosure. In redeeming from the mortgage at any time, before the title becomes absolute in the mortgagee, the rents and profits are to be accounted for by him, because the mortgager has the right to save the estate from forfeiture, by the payment of the sum, which is due in equity. But the suit upon the personal contract is at law, and the equities, which the debtor had while the mortgage was open, are extinguished. He has no greater right in such action, to claim that the net avails of the rents and profits should be deducted from the amount of the judgment, than he has, that the sum should be refunded to him on a foreclosure of a mortgage on an estate of sufficient value to discharge the entire debt, secured thereby. It is through the laches of the mortgager, that the estate is not redeemed, while his equities remain, and on a failure to do so, the whole land, and its use from the time possession was taken for a breach of the condition, become the property of the mortgagee.

The instructions to the jury were not in accordance with these principles ; and the plaintiff’s counsel waived the right to have those given, which were in harmony with the law, by requesting those less' favorable to him. And if those requested, were substantially given, he has no ground of complaint. The Judge was requested by the plaintiff’s coun*285sel to instruct the jury, “ that the actual receipts from the rent and sale of the mortgaged property, after deducting necessary expenses, should fix the sum to be allowed upon the judgment, unless they were satisfied, that the plaintiff had not used ordinary care and prudence in the management and sale of said property.” The jury were instructed, “that in entering into possession for the purpose of foreclosure, he was bound to exercise the care and prudence in the management and control of the property mortgaged, which a prudent owner would exercise in the management and control of his own property.” The instructions given were more stringent against the plaintiff, than those requested. By the latter, he was holden only to the care and prudence required of those standing in the same relation to the property, which he did ; by the former, he was bound to exercise the care and prudence which an owner would exercise, in the management and control of his own property. The management and control of property like the mortgaged premises, is expected to be different by an absolute owner, from that by one, having entered thereon, for condition broken, as a means of obtaining payment of his debt.

• Again, by the instructions requested, if the plaintiff had introduced satisfactory proof, that he had accounted for all the rents and profits actually received, the burden would have been upon the defendant to show a want of ordinary care and prudence in the management and sale of the property. The import of the instructions given was, that the plaintiff was bound to show, that he had exercised the care and prudence in the management and control of the property, which an owner would have done in relation to his own property.

The instruction, that if the title'of the mortgager was defective, and there was any diminution of price from such defect of title, the defendant alone should be the sufferer for that cause, was correct, and did not differ materially from that requested. The defendant could transfer only his own right; and the foreclosure could vest in the mortgagee no greater interest, than that which the mortgager had at the time of the *286execution of the mortgage ; and any defect of title shown, operated, under the instructions, to diminish the amount satisfied by the foreclosure of the mortgage.

Exceptions sustained.