The evidence was admissible upon the authority of the case of Ford v. Lord Erey, 6 Mod. 44. The mortgage ought to have been received, and if it was rendered of no validity by any matter dehors, such circumstances should have been made to appear to the court, by way of defence against the claim set up under it. In refusing to hear it, the court then did wrong, and a new trial must be granted.

The court, in answer to an inquiry of Mr. Ogden, intimated their opinion, that the mortgage was not void, because it was not recorded.

New trial granted.

Note. — The court do not take any notice of one question which was argued, viz: whether the interest of a mortgagee in a mortgage is to be considered as personal estate though indirectly they seem to have decided, that it was to be regarded in that light. In Hassel v. Tynte, Ambl. 318, Lord Hard wick e said, that it was a question upon which he felt very unwilling to give an opinion. His words are, “ what has been argued at bar is very true, that the money is the principal, and the land only the security; that the money would pass by will not attested according to the statute; and yet here is an interest in land, and it is a very considerable question, whether it can pass by parol gift ?” *549Tho question was reserved. Fonblanque b. 3, a. 1, s. 13, considers it as personal property, and in the same light it seems to be regarded by Lord Mansfield, in Martin v. Mowlin, 2 Bur. 969 ; recognized in Green v. Hart, 1 John. 583; 1 Caine Ca. Er. 69, Waters v. Stewart. But see Noys v. Mordaunt, 2 Vern. 581; Doe v. Parratt, 5 Term Rep. 652, which shew, that in certain cases it is looked upon as real property. See also Perry v. Barker, 13 Ves. jun. 198, and Den ex dem. Jouet v. Spinning Post, 3 John. Ch. Ca. 145 ; 11 John. 538.