Prestridge v. Patrick Irwin & Co.

46 Ala. 653 | Ala. | 1871

B. F. SAEEOLD, J.

The appeal is taken from the decree of the probate court allowing certain claims of the appellees against the insolvent estate of Jno. E. Prestridge.

The letter of Prestridge, written by Shearer to the appellees, on the 12th of February, 1866, is not a receipt requiring a stamp. It is a mere letter of a correspondent, communicating notice of the present condition of mutual business. This appears from the letter itself, and from the statement in it that the money was received through an express company, whose business it was to take a formal receipt. If Shearer does not remember writing the particular letter at Prestridge’s request, he testifies that he did write some letters- at his request, that this one is in his handwriting, and that he never wrote any letter for him without his request. He was Prestridge’s clerk in a grocery store. His testimony connects Prestridge with the letter, which was an admission of the receipt of the money specified, and was admissible in evidence.

As the law requiring a revenue stamp to be affixed to the certificate of a commissioner to take depositions has been repealed, the objection on account of the want of a stamp is now untenable.

The letter of Prestridge, written to the appellees, and his drafts drawn on them, accepted by them, and in their possession, were certainly proofs of transactions between the parties, tending to establish the justice of their claims against him. Supported as they were by the testimony of Knox, the account, up to the 28th of April, 1866, seems to be well sustained. After that date, the witness Horton, proves, from his personal knowledge, the remainder of the account.

No objection to the verification of the claims appears in the bill of exceptions, and it is not stated how this was done in any part of the transcript. It appears that in making up the issue, there was a plea of want of proper vesification, which was found against the defendant, whether on the facts, or a construction of law is not shown. The briefs of the counsel for the appellant admit that there was a verification by Sheffield for the claimants, and the ground of their objection was, that his testimonyin the cause shows he was ignorant of the correctness of the claims. Nevertheless, there was a formal and apparently complete verification, even if really defective or insufficient. This deficiency was supplied by proof before the final decree. Section 2196 is in this respect different from the corresponding § 1847 of the Code of 1852.

An account between the merchants is closed at the date of the last item. It is from this time that the statute of limitations begins to run. — Add. on Contracts, 1204. The amount due in this case was. the balance of the account on the 5th of March, instead of lstof June, 1866, with interest to the date of the decree. The error in this respect is probably too inconsiderable to require amendment, and is doubtless in favor of the appellant.

The decree is affirmed.