The defendant had a legal right to withdraw the evidence admitted subject to exception, at any time before the case was submitted. Mason v. Knox,66 N.H. 545. The fact that the court could set the verdict aside if it were found that it was produced by that evidence, even if the testimony had been excluded, is immaterial; for the court refused to strike out the evidence because of the plaintiffs' objection to this course, and not because the trial justice found that he could not free his mind from the impressions produced thereby. It is obvious that if the evidence had been withdrawn the plaintiffs could not insist on their exception to its admission, and they are in no better position now. If they have been prejudiced, it is because the evidence was considered — not because it was admitted; and since it would not have been considered if they had not insisted that it should be, their exception must be overruled. They cannot be heard to complain because the court did what they insisted should be done.
The mortgage in question is so far governed by the provisions of the common law that the plaintiffs have no claim on the black horses which can be enforced in an action at law, however it may be as to the horses which Drinkwater traded for them. If the plaintiffs are to prevail, it must be because of the rule by which such mortgages are enforced in equity (Pierce v. Emery, 32 N.H. 484); and to avail themselves of that rule, they must show that the defendant knew of their mortgage at the time he bought the black horses. It is found that the defendant did not know of the plaintiffs' mortgage and is not chargeable with knowledge of it; and consequently they have no lien which is enforceable in equity against him.
Exceptions overruled.
All concurred. *Page 386