Jackson, Brother & Co. v. West

Baiitol, J., delivered tbe opinion of this Court. Tbe fund in Court, out of which tbe appellants claim to be paid tbe.sum of $1,024.12, and interest, being tbe amount of their account for necessaries furnished to Mrs. Eleanor West, from November 1852 to July 1856, has come to tbe bands of tbe trustees from tbe sale of tbe real estate of Mrs. Eleanor West, conveyed by deed of tbe first of May 1844, executed by A. P. West and wife. Tbe right of tbe appellants to tbe relief prayed in their petition, depends upon tbe decision of two questions: 1st. Whether their claim is proved according to law? 2nd.

Whether, if proved, tbe trust fund in Court may be charged with its payment ? 1st. As to tbe proof of the account: This consists of tbe oath of William B. Jackson, one of tbe firm of Jackson, Brothers & Co., and also the oath of Joseph C. Jackson, “a disinterested, credible witness,” tbe clerk and bookkeeper of tbe appellants, made, and certified according to the requirements of the 4th sec. of tbe Act of 1785, cb. 46. This is sufficient prima facie proof to establish the account, according to tbe practice in this State. Strike vs. McDonald, 2 H. & G., 234 .

McCubbin vs. Cromwell, 2 H. & G., 458 . Alexander’s Ch. Pr., 132. But, if tbe exceptions filed against this claim are to be considered as requiring full proof, we think tbe evidence taken under tbe commission has supplied as full proof as such a claim is ordinarily susceptible of.

In our opinion, tbe testimony of Joseph C. Jackson, the clerk of the appellants, given in answer to tbe 4th and 5th interrogatories, is sufficient to establish the sale and delivery of the articles charged in the account, at the prices therein stated. ⁸³ One of tlie exceptions taken by John H. Strider, administrator of Eleanor West, is, that it is barred by tbe statute of limitations. It may be questioned wbetber the administrator has any interest in the subject matter of this controversy, which would entitle him to interpose exceptions to the appellants' claim. The fund in Court, we have said, has arisen from the sale of Mrs. West’s lands, and neither in them, nor in the trust funds arising from their sale, has the administrator, as such, any interest. But if it were otherwise, by the order of the Circuit Court, passed on the 13th day of November 1860, under which Strider was allowed to file his answer, and contest the appellants’ account, he was expressly precluded “from interposing the statute of limitations to the same.” In any view, therefore, we can take of the case, the claim of the appellants is free from this objection; and it is unnecessary, therefore, to decide whether it might have been successfully made at the proper time.

The claim being proved, we are next to inquire whether the fund in Court is chargeable with its payment. By the deed of the first of May 1844, to which we have referred, the land was conveyed to the trustees