1 Denio 159 | Court for the Trial of Impeachments and Correction of Errors | 1845
The main question presented • by this bill of exceptions is, whether the plaintiff was barred of his claim at the expiration of six months from the time he presented it to the defendant, it being disputed or rejected by her, and not referred.
The bill of exceptions states that the plaintiff presented his claim before the time when the defendant first published a notice requiring persons having claims against the defendant’s testator to present them, &c. and that it was disputed and rejected by her, and not referred. It is insisted that under such circumstances the plaintiff is barred by the provisions of the statute.
Considering the several provisions of the statute and the order in which they stand, I do not doubt but the six months limitation provided by the 38th section applies only to bar claims presented, disputed or rejected, •and not agreed to be referred, after such notice as is provided for by the 34th section shall halve been given, and within the time of the running of such notice: No other defence was set up; and as it is not pretended that the claim in this case was so presented and rejected after the first publication of the notice, it follows that the defence wholly failed.
The presenting of the claim on the 7th June, 1844, to Mr. Lord, was not a compliance with the statute. The fact that he was the legal adviser of the defendant in settling claims against the estate, did not authorize him to act for the defendant under the notice. The decision of the judge, however, on ‘ that point, though erroneous, did not prejudice the defendant. It may present a question to be hereafter settled' as to the right of the plaintiff to costs. In any view of the case, the defendant was not entitled to the benefit of the' six months limitation. The whole defence rested upon that point.-
New trial denied.