22 Md. 71 | Md. | 1864
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.
Under this deed there can be no question of the power of Mrs. West to charge her separate estate in the hands of the trustees, with the payment of the appellants’ claim. Cook vs. Husbands et al., 11 Md. Rep., 492. It is settled in Maryland that the debts of a feme covert cannot be charged upon her separate estate, unless the obligation sought to be enforced, presents upon its face some evidence of the intent to charge the separate estate
We think the Circuit Court erred in decreeing against the appellants’ claim. In our opinion the appellants were entitled to the decree which was presented by them to the Circuit. Court, and is found in the record before us in blank. By that. decree the trustees are allowed “a, credit of one thousand and sixty-five dollars, and thirty-two cents, to be retained in hand to pay the balance due certain creditors of A. P. West.” That part of the decree being assented to by the appellants’ solicitors, no question arises upon it for the consideration of this Court.
In order that such decree may be passed by the Circuit Court, the decree appealed from will be reversed and the cause remanded — the cost of the" appeal to be paid out of the fund.
Decree reversed and cause remanded.