
    POWERS VS BRYANT’S adm’r.
    1. A verification, at the foot of a plea in abatement, stating it to have been sworn to and subscribed in open court, certified by the clerk, is a sufficient compliance with the statute which requires such pléas to be accompanied with an affidavit.
    2. A plea in abatement of a writ, alleging the residence of defendant in another county, need not allege the ground of abatement to have been continued up to the time of pleading; and a change of residence of defendant, between the time of suit brought and the time! of interposing the defence, cannot deprive him of his privilege under the statute authorising the plea.
    3. The words “resident citizen,” in such a plea, are as forcible to indicate a fixed home, as the words “permanent residence,” which are the words employed in the statute, and sufficiently accord with the intent and meaning of the statute.
    4. A demurrer to a plea in abatement admits the plea to be on file, and can only contest its legal sufficiency; and semble does not reach the indorsement on the plea required by the twelfth rule, regulating the practice in the Circuit and County courts.
    5. Though an objection might, it seems, be well taken to such plea, if it affirmatively appears not to have been filed within the time prescribed by statute.
    
      0. The certificate of a judicial officer or clerk of a court, of the acknowledgment or proof of deeds, need not be under seal; and the hand-writing of the judge or clerk taking the acknowledgment, may be proved in open court by any witness acquainted with it.
    
      7. To support a plea in abatement which alleges that defendant was at the time of service of the writ, a resident citizen and freeholder in another county, a conveyance of a lot of land to defendant, without suppletory proof, is not sufficient: ¡Sem-ble, that proof that the grantor in the conveyance had title, or that defendant was in actual occupancy of the land, would sustain the defence.
    Error to the Circuit court of Tuskaloosa county.
    Action on the cause in assumpsit. Plaintiff issued his writ against defendant, returnable at the Spring term, eighteen hundred and thirty-five, of the said court, which was returned executed, and at the March term of said court, filed his declaration, for that on the seventh day of July, eighteen hundred and thirty-three, in the county-aforesaid, defendant made and delivered to said plaintiff a certain promissory note of defendant of that date, and thereby then and there promised to pay hy the twenty-fifth day of December next thereafter, to the said plaintiff, or hearer, three hundred dollars, in good negro property at a cash price, for value received of him on that day. And although the note had been long due, and defendant often requested, yet he had not paid said sum of money in said note specified, according to the tenor and effect thereof, but so to do had wholly neglected and refused, &c.
    And the defendant came in his own proper person, and filed his plea in abatement to the plaintiff’s declaration, in the following terms, to wit: That the said plaintiff further to sustain his said action ought not, because he said that at the time 'when the writ in the cause was issued, and 'when the same was executed, he, the said defendant, was a resident citizen of the county of Mobile, and a freeholder of said county, and this he was ready to verify. This plea was subscribed and sworn to by defendant in open court.
    To this plea plaintiff demurred; which being overruled, the plaintiff replied, and upon issue, a verdict was given for the defendant.
    Before the jurors withdrew from the bar of the court, the plaintiff filed his bill of exceptions, which stated, that on the trial of the issue upon the plea in abatement, the defendant, after shewing his residence in Mobile county, offered as evidence, to prove himself a freeholder in the said county of Mobile, a deed of bargain and sale from one Moody and wife, to himself, of a freehold estate in said county of Mobile, having endorsed upon it a certificate of acknowledgment and registration in the usual form, except that it was under the private seal of the clerk of the County court, not including a statement or shewing, that there was no public or official seal to the office: to the introduction of which deed, thus authenticated, the plaintiff objected; whereupon, the court permitted the defendant to prove the handwriting of the said clerk, to which also the plaintiff objected, as well as to the introduction of the said deed; which objection of the plaintiff tiie court overruled, and permitted said deed to go in evidence to the jury.
    Upon this state of the case, the plaintiff requested the court to charge the jury, that the evidence was not of itself sufficient to sustain the defendant’s averment in his plea, that he was a freeholder; which instruction the court refused, and to all the things as above stated, plaintiff excepted, &c.
    And the said plaintiff here said, that in the record from the court below, there was error, to wit:
    1. That the court below overruled plaintiff’s demurrer to the plea in abatement;
    2. That the court below permitted defendant to prove the hand-writing of the clerk, after the plaintiff’s objection as shewn in the bill of exceptions;
    3. That the court below permitted the deed to go in evidence to the jury, as authenticated, as shewn by the bill, &c.
    4. That the court below overruled and refused the instruction asked for by the plaintiff, &e.
    And at the June term of this court, upon a suggestion of the death of the defendant below, a scire facias issued to his personal representative, to appear if he thought proper, to do and receive what this court should consider, &c. Upon the return of which, being executed, the administrator cum testamento annexo of the deceased, was entered as a party, &c,
    
      Crabb, for plaintiff in error,
    now urged the reversal of this case,—
    1. Because the court below should have sustained the demurrer to the plea in abatement. That plea was not -filed in proper time. It was not verified by affidavit— (Aik. Dig. 276, s. 103.) It was not good in substance— it did not allege that Mobile county was the county of defendant’s •permanent residence, as the statute requires —(Aik. Dig. 284. s. 146.) Nor did the plea allege, as it should, that Mobile was the county of defendant’s permanent residence at the time of filing the plea, as well as when the writ was issued and when executed. Dilatory pleas were to be construed strictly, and against the party pleading — (Gould’s PI. ch. 3, s. 57,58 and 59; ch. 5, s. 66.
    The evidence offered on the trial of the issue, did not prove a permanent residence of the defendant in Mobile county. The evidence offered to show a freehod in defendant, was not admissible, when first offered, because there was nothing about the certificate of its execution that implied verity, and it ought to have been proven by a witness before the court, who saw it executed. The court ought not to have permitted the proof of the hand-writing of the person who professed to be clerk, to have dispensed with the ordinary mode of proving deeds at common law. As there was no official seal to attest the verity of the clerk’s certificate, the next best evidence was the certificate of the judge of the county court of Mobile, that the person certifying was clerk, and that his certificate was entitled to due faith and credit as such. As no official seal accompanied the certificate, and no statement that there was no official seal, and therefore the private seal was affixed, — there was ground of suspicion that the certificate to the deed in question was not legally and in good faith applied, and therefore danger in deviating from the common law mode of proving the deed.
    But if the deed was sufficiently authenticated, there 
      wc.s error in admitting it as evidence per se of freehold in the grantee. Es should have been required also to prove possession under the deed; for mere possession of title papers is not such evidence of freehold as should be required to sustain a plea in abatement ef freehold. It was not at all unusual, that an individual retained the evidence of a conveyance of land to himself, after he had divested himself of all title by a subsequent conveyance to another. If this was sufficient evidence, an insolvent individual, who had not owned a freehold for years, might sustain a plea of freehold. This was a dilatory plea, and defendant should have been held to the strictest proof of his allegations. He might have divested himself of his freehold, and yet it be out of the power of the plaintiff to show it, because of the conveyance not having been recorded.
    That a plea in abatement must be verified by affidavit — (See 2 Stew. & Por. 358.)
    Porter, contra.
   COLLIER, C. J

— The facts suggest these questions—

First. Should the demurrer to the testator’s ]3lea have been sustained?

Second. Was the dred for the lot in Mobile legally admitted in evidence?

Third. Was it sufficient evidence in point of law, to show that the'testator was a freeholder, as alleged in his plea ?

1. The verification at the foot of the plea, stating it to have been sworn to, and subscribed in open court, (as certified by the clerk,) is certainly a sufficient compliance with the statute, which requires such pleas to he accompanied with an affidavit of their truth.

The words “sworn to” clearly refer to the plea, and must he taken to mean, that the testator declared, on oath, the facts it set forth were true.

Nor is the plea objectionable, in not alleging the ground of abatement to be continuing up to the time of pleading. The language of the statute forbids such an idea. It exempts from suit, any one situated as the testator is shewn by his plea to have been; and a change of condition between the time of bringing suit and interposing the defence, cannot deprive him of his privilege. We are warranted in this conclusion by the usual forms of such a plea —(1 Stew. R. 22; ibid 379; 2 Stew. & Por. R. 247.)

The plea does not, in the defence relied on, employ the precise language used in the statute, the words of which are: “ No freeholder of this territory shall be sued out of the county of his permanent residence,” &c.

The plea is, that the “ defendant was a resident citizen of the county of Mobile, and a freeholder of said county.” The adjective “resident,” preceding the substantive “ citizen ,” we think quite as forcible to indicate a fixed home, as the words “ permanent residence” connected in the act; and as no rule of pleading requires a de-fence of this character to be disclosed, otherwise than according to the intent and meaning of the statute, — we are of opinion that the discrepancy is not fatal.

If, however, the demurrer can be made to reach not only to defects apparent in the plea, but to the want of an indorsement on the plea of the time of pleading, it still might be sustained. By the twelfth rule, regulating the “practice in the Circuit and County courts,” it is provided that, “ No plea in abatement shall be received, if objected to, unless by the indorsement of the clerk, it appear to have been filed within the time allowed for pleading.” The phraseology of this rule would intimate, that the want of an indorsement, such as it contemplates, must be objected, before the reception of the plea, or it cannot be afterwards raised. In the present case, the demurrer admits the plea to be in file, and can only contest its legal sufficiency on the ground, that the facts disclosed, do not constitute an available defence, or else do not come in, in such form as to make them unexceptionable. If it appeared affirmatively that the plea was not filed within the time prescribed by statute, we will not say that such an objection would not have been well taken; but this is not discovered by the record, however the fact may be.—(Buddle vs. Wilson, 6 T. R. 369; and McAlpin & McAlpin vs. May, 1 Stew. R. 520.) We are, then, brought to the conclusion, that in overruling the demurrer, the Circuit court did not err.

2. The solution of the second question must depend on our statutes, in regard to the acknowledgment and certification of deeds. By the third section of the act of eighteen hundred and three, (Aik. Dig. 88,) the judges of the Superior court, or one of the justices of the County court, of any county in which the lands, &c. are situated, are authorised to take the acknowledgment or probate of deeds or conveyances of land, &c., “ and if a certificate of such acknowledgment or proofs shall be written upon or under the said deed or conveyance, and be signed by the person before whom ft was made, then every such deed or conveyance, so acknowledged, or proved and certified, shall be received in evidence in any court of this territory, as if the same were then and there produced and proved.’-’

By the first section of the act of eighteen hundred and ■eighteen, (Aik. Dig. 90,) it is enacted, that clerks of the Superior and County courts shall take and certify ác-. knowledgments of deeds and relinquishments of dower, within their respective counties, in like manner and form as were then required, when taken before a judge of the Superior court or justice of the quorum. These-are 4lre only statutable provisions which can have any influence upon the question.

The act of eighteen hundred and three, does not require the certificate of a judicial officer of the acknowledgment or proof of deeds to be made under seal, so that these acts would be quite as valid, without that appendage. The act of eighteen hundred and eighteen, which confers'the authority given by the previous enactments, on the clerks of the courts, only requires that they shall execute it, in the like manner and form as theretofore required. Now as seals were not theretofore essential to the validity of a certificate, it would seem" necessarily to follow, that the objection founded upon the want of a seal, was not well taken, and that there could be no objection to the course adopted on the trial, of proving the hand-writing of the clerk.

3. The deed was not sufficient in itself, to show the testator to have been a freeholder in Mobile at the commencement of the action, or at any other time. There was no evidence that the grantor himself had the title, which by his deed, he undertook to convey — nor was the absence of this, supplied by proof, that the testator was in the actual occupancy of the lot conveyed. Without suppletory proof, the deed could not sustain the de-fence, and for the refusal so to instruct the Jury, there is error.

The judgment is reversed and the cause remanded.  