Askew v. Weissinger

ORMOND, J. This case, as it regards the jurisdiction of this court, is in the same condition as the case of Cawthorne v. Weissinger; but as the case has been argued upon its merits, it is proper we should express our opinion upon it. The 10th and 11th sections of the act of 1843, [Clay’s Dig. 194,] provide that an affidavit should be filed with the account in the clerk’s office against an insolvent estate, which if not contested within nine months after the estate is declared insolvent by the administrator, or the creditors in his name, should be sufficient proof of the account. That statute, however, does not%pply to this case. By the old law, creditors were allowed “to file the evidences [908] of their claims” in the clerk’s office, [Aik. Dig. 154, § 7,] which by a fair construction, would probably apply to a sworn account, as it could in no other way be evidence. This, however, was merely prima facie evidence of the claim, and if other proof was required, it was necessary that it should be made, or the claim would be rejected. • The claim, therefore, against an insolvent estate, must, like any other, if contested, be proved according to the course of the common law, and the court was correct in rejecting the affidavit of James Abbot, establishing the correctness of the account, because it was taken ex parte. The deposition of Toller, taken with notice, merely proves that the charges were reasonable, but he knows nothing of the account. The court, therefore, did not err in excluding it, and in refusing to allow the account, it being ■contested by the executor. Let the writ of error be dismissed.