Lay v. Clark's Adm'r

31 Ala. 409

• Court: Supreme Court of Alabama
• Decided: January 15, 1858
• Status: Published

Opinion

STONE, J.

— Section 1847 of the Code provides, that claims filed against insolvent estates must be “verified by the oath of the claimant, or some other person who knows the correctness of the claim, and that the same is due; or the same is forever barred.” In Carhart, Brothers & Co. v. Clark’s Adm’r, at the present term, we held, that to avoid the bar, both the claim and the verification must be filed within the nine months. — See, also, Pickle v. Ezzell, 27 Ala. 623.

The word “verified,” as employed in this section, means proved. The affidavit of Mr. Lay shows a sale of merchandise, the agreed price, and the time when the debt matured. This makes a prima-facie case; and, if submitted to a jury, would, in the absence of other proof, justify a verdict in favor of tlie plaintiff. Is it sufficient under the section of the Code we are considering?

The statute has not declared, in terms, what shall be a sufficient verification. It furnishes, however, persuasive evidence of what is meant, by prescribing the extent of knowledge which the witness shall possess, when the verification is by some person other than the claimant. We can conceive of no good reason for requiring that such witness should knoio the correctness of the demand and that the same is due, unless it be part and parcel of every good verification that it show the claim to be correct and due. Neither can we find any solid foundation on which to rest a distinction, which would relieve a claimant who verifies his own claim from offering as full proof as is required by a disinterested third person. We think we carry out the intention of the legislature, by holding that the verification, no matter by whom made, shall show that the claim is correct, and that the same is due; in other words, that it is a just and subsisting demand.

In Jordan v. Owen, 27 Ala. 153, we considered the import of the language “correctness of the demand,” as employed in section 2313 of the Code. That section is, in its policy, very like the one under discussion. We there said, that when a party “undertakes to prove by his own oath the correctness of his demand, he must not only state facts which, if proved by other witnesses, would make out a prima-facie case of indebtedness of defendant to him, but he must go further and swear to the fact of nonpayment of the indebtedness.” — See, also, Brasher v. Lyle, 13 Ala. 324.

We do not hold that, under section 1847 of the Code, the affidavit shall, in terms, aver that the claim has not been paid. It must, however, appear from the affidavit that the claim is a subsisting demand.

The claim in this case was not sufficiently veifified; and the result is, that the judgment of the probate court is affirmed.