
    Allen, Administrator, v. Thaxter, Executor.
    Covenant on a deed averred in the declaration to have been executed for the obligor by his attorney in fact: Held, that a plea denying the attorney’s au» thority must be verified by affidavit.
    If the clerk’s certificate, attached to the copy of a record of a Court of another state, have not the seal of the Court or officer granting the letters testamentary, the copy is not admissible as evidence.
    ERROR to the Daviess Circuit Court. — Covenant by Thaxter, executor of Bond, against Mien, administrator of Gardiner. The declaration averred the deed to the testator, on which the suit was founded, to have been executed for Gardner by Prentiss his attorney in fact. The defendant below, inter alia* pleaded in bar, 1st, that Prentiss was not authorized to execute the deed; 2diy, that the plaintiff ne unques executor . The first of these pleas was rejected on motion, because it was not verified by affidavit. Issue was joined on the second plea, a jury dispensed with by consent, and judgment rendered for the plaintiff in the Circuit Court.
    
      Judah, for the plaintiff.
    Naylor. for the defendant.
    
      
       Quaere, whether this plea should not have been in abatement. The plea in Weathers v. Neuman, ante, p. 232, was in bar; but vide note to that case.
    
   Blackford, J.

By the plea which denied the authority of Prentiss, proof was required of the execution of the deed. No such plea, according to the statute, can be received without affdavit. Stat. 1823, p. 292. The Court did right in rejecting it. To prove himself executor, the plaintiff offered in evidence a copy of letters testamentary from a Probate Court of Massachusetts. It was objected to for a defect in the clerk’s certificate, but the objection was overruled. This certificate of the clerk, without the seal of the Court, or officer granting the letters testamentary, is not sufficient either by the act of congress or the statute of our own state . The evidence ought not to have been admitted.

Per Curiam.

The judgment is reversed, and the proceedings subsequent to the issue are set aside, with costs de bonis testatoris. Cause remanded, &c. 
      
       Vide Henthorn v. Doe, ante, p. 157, and notes 1, 2. — Stat. 1828, p; 48.
     