Allen v. Thaxter

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 (2). 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. Footnotes [(2)] Vide Henthorn v. Doe, ante, p. 157, and notes 1, 2. — Stat. 1828, p; 48.