Majority
of York, deceased, upon a promissory note made by the said deceased in favour of the plaintiff, dated April 28, 1932, payable three months after date.
On or about April 25, 1938, the plaintiff caused to be filed in the office of the Registrar of the Surrogate Court of the County of York a notice of claim, expressed to be filed pursuant to the provisions of The Surrogate Courts Act, R.S.O. 1937, c. 106, s. 67 (1).
Sec. 67 (1) of that Act provides that the provisions of The Limitations Act shall not affect the claim of any person against the estate of a deceased person "where notice of such claim giving full particulars of the claim and verified by affidavit " is filed as provided for in said section prior to the date upon which the claim would be barred by the provisions of The Limitations Act.
The notice in question gave the amount claimed to be due and owing and the computation of such amount, in which computation was stated the face amount of the note and its date; but the notice itself did not say whether said deceased became liable on the note as maker or as endorser; it did not say that plaintiff was the payee or that he became a subsequent holder; it did not say when the note matured, nor where it was made payable. The notice stated that " the amount of the said indebtedness is verified by affidavit hereto attached."
The attached affidavit said that the deceased signed the note as promissor, that it was dated at Toronto on April 28, 1932, that it was in the principal sum of $3,500 and was payable to the plaintiff's order three months after date at the Bank of Toronto, at St. Catherines, Ontario, and that the note did not specify the rate of interest.
The Court of Appeal held that, "having regard to the nature and purpose of s. 67 (1), what was done in this case was a substantial compliance with it, and accordingly the provisions of The Limitations Act do not affect the claim upon the promissory note."
The defendant alleged, by way of defence and by counterclaim, an indebtedness of plaintiff to said deceased for professional services rendered in 1927, as set out in a bill of costs for $5,001.90 forwarded to plaintiff on or about April 20, 1932.
Against this claim the plaintiff
Judgment of the Court
J.-At the conclusion of the argument of counsel for the appellant, the Court intimated that it would not require to hear from the respondent on the question as to the effect of subsection 1 of section 67 of The Surrogate Courts Act. This is a comparatively new provision but we see no reason to disagree with the decision of the Court of Appeal for Ontario as to its meaning. The provisions of The Limitations Act, therefore, do not affect the respondent's claim upon the note.
As to the account of $5,001.90, which is set up as being an account for services rendered by the late Walter J. Boland to the respondent, an examination of the record convinces us that this account was an account of the legal firm of Macdonell and Boland. The question, therefore, raised for the first time in this Court, that there is a right of retainer by the appellant as executor of his brother's estate, does not arise and need not be considered.
On the remaining point that, irrespective of section 54 of The Limitations Act, there was an admission of a pending unsettled account between the respondent and Walter J. Boland, effective to take the claim out of the operation of the statute, we agree with the Chief Justice of Ontario and have nothing to add.
The appeal should be dismissed with costs to be paid by the appellant John F. Boland as executor of the estate of Walter Joseph Boland according to the usual form in such cases.
Appeal dismissed with costs. Solicitor for the appellant:
F. H. Snyder.
Statutes and regulations cited
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Unresolved citations
- s. 67
- section 67 of The Surrogate Courts Act
- section 54 of The Limitations Act