#### Kidd’s Administrator v. Alexander’s Administrator.

May, 1823.

Evidence* — Certificate of Notary Public. — The certificate of a notary public, that a release was acknowledged by a party to be his act and deed, ought not tobe received in evidence; but the deposition of the notary public, or some equivalent testimony, ought to be produced to the court.

This suit was originally brought in the county court of Caroline, and afterwards Removed, by certiorari, to the Fredericksburg chancery court.

*The administrators of Isaac Kidd, filed their bill to injoin a judgment obtained against them by Benjamin Alexander, on a bond executed by their intestate, as security to one John Segar. They allege that considerable payments had been made towards the discharge of the said bbnd; one in particular, in William Hill’s bond for 1061. paid to John Scott, to whom at that time the bond aforesaid of John Segar had been transferred, though not legally assigned: that having no wish to postpone the payment of any balance actually due, they agreed to waive the issue, and prove their discounts before John Pendleton: that in consequence of the nonattendance of a witness, at the time and place appointed, they have had no opportunity to establish their payments and set-offs, and the judgment has become final. They therefore pray an injunction, and other relief.

The injunction was awarded!

Alexander having died, the suit was revived against his administrator, who answered that he has no personal knowledge of the transactions in question, but believes it to be true, that the said Alexander parted with the bond, without assigning it, and that he was not to make it good, nor was any recourse to be had against Alexander, in default of payment.

A motion to dissolve the injunction was denied.

Israel and John P. Pleasants, were admitted defendants, on their motion. They filed an answer stating; that John Scott (named in the bill) being indebted to the defendants, they received, by their agent, the said bond, with an assignment of a number of small bonds on other persons; although at the same time, they understood that the said Scott, held other bonds of the said Segar’s, to which there was no security, and against which, they were induced to believe there were some set-offs on account of payments to the said Scott by the said Segar. They conceive, that if there had been no set-offs against these last-mentioned bonds, Scott would rather have assigned these for the ^payment of his debt, than to have assigned a *180parcel of small bonds, which he did. The defendants state, that they allowed to the said Scott, the full amount of Segar’s and Kidd’s bond, and have never received a cent on account of it: that they have heard and believe, that the set-offs ought to be applied to the other bonds of the said Segar, held by Scott, and not to that in which Kidd was the surety: that very soon after obtaining possession of the said bond, the defendants lost no time in reducing their claim to a judgment: that Segar never directed the application of his payments, to this particular bond in which Kidd was his surety; and it is not probable, that Scott, the creditor, would apply those payments to this bond, in preference to the bonds which he held without any additional security.

Several depositions were taken, all of which, go to establish the plaintiff’s allegations, except that of John Scott, who' is mentioned in the foregoing bill and answers, as having received the bond in question from Alexander, and transferred it to Israel and John Pleasants. Before his *deposition was*taken, Israel and John Pleasants executed a release to Scott under their seal, relinquishing all claim on the said Scott, on account of the transfer of the bond to them. The execution of this release, was certified by John Gill, notary public of the state of Maryland, in the form in which notarial acts are usually executed.

The chancellor referred the accounts between the parties to a commissioner, who reported a balance (of $399.48, to be due from Segar and Kidd, to Israel and John P. Pleasants. Exceptions were filed, and the chancellor decreed, that the injunction should be dissolved as to the sum_ of $177 15 cents, with interest, &c. (that being the balance due, after applying to the plaintiff’s credit a due proportion of Hill’s bond, in the proceedings mentioned,) and that the injunction be perpetuated as to the residue of the said judgment. From this decree, the plaintiffs appealed.

*

See generally, monographic *note*on “Evidence” appended to Lee v. Tapscott, 2 Wash. 276. The principal case Is cited In Cooley v. Porter, 22 W. Va. 126.

JUDGE BROOKE,

*May 14. — delivered the opinion of the court:

The court not deciding whether, if proved, the release in the record would be effectual to bind the late house of Israel and John P. Pleasants, is of opinion, that the certificate of the notary public, John Gill, that John P. Pleasants, partner in the late house of Israel and John P. Pleasants, acknowledged it to be his act and deed, was inadmissible evidence to prove the execution of the said release. To effect that object, the deposition of the notary public, or some equivalent testimony, ought to be before the court. In the absence of such proof, the court is of opinion, that John Scott, the assignee of the bond in question, was an incompetent witness, and his deposition and affidavit, also inadmissible testimony.

The court is further of opinion, that admitting the release to have been well executed, and the competency of the witness, John Scott, his testimony would be entitled to but little weight; it appearing by his ■own shewing, that he assigned the said bond to Israel and John P. Pleasants, as then wholly due and unpaid, though by his receipt for Hill’s bond, and the application of it according to the terms of the receipt, a large proportion of the bond in question, was discharged at the time of the said assignment, of which he was not ignorant when he gave his deposition and affidavit in the cause. The court, for the foregoing reasons, reverses the chancellor’s decree; and it is decreed and ordered, that the injunction be perpetuated, except for the sum of $20 96 cents, with interest, at the rate of five per cent., from the 15th of October, 1802, until paid.