Where the assignee of a mortgage transfers it back to a prior holder, who is in possession of the mortgaged property, the transfer, though not in writing, is a release of the assignee's claim to the property. An officer's return, referred to in the certificate annexed to a deposition, is made part of the certificate for the purpose for which it was referred to.
The court held, that the transfer of the mortgage from Thurston back to Millard, although not in writing, (Millard being in possession of the property,) was a release of Thurston's claim to the property.
The plaintiff offered in proof of his case, a deposition, with a certificate of the justice before whom it was taken, attached, in which it was stated that the opposite party was served with reasonable notice, as would appear by the annexed return of the sheriff. It was objected on the part of the defendant that the certificate itself should disclose the time at which notice was given. But the court held, that the reference to the officer's return made it a part of the certificate for the purposes for which the reference was made, and, if the return showed the requisite notice, it was sufficient proof.