Paré v. Paré

Paré v. Paré

The 1866 notarial deed did not effect novation of the 1863 promissory note but merely interrupted prescription and could only renew the five‑year prescriptive period; the plaintiff, who retained the note and did not produce it, failed to rebut that more than five years had elapsed, so the debt was prescribed and the appeal succeeds.

Citation
(1894) 23 SCR 243
Parties
Appellant / Defendants: J. B. Paré & al; Respondent / Plaintiff: Joseph Paré
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
1 May 1894
Procedural Posture
Appeal / On Appeal From the Court of Queen's Bench for Lower Canada (appeal Side) to the Supreme Court of Canada
Outcome
Appeal allowed; judgment of the Court of Queen's Bench reversed and plaintiff's action dismissed
Legal Topics
Novation, Interruption of Prescription, Promissory Note, Notarial Deed, Onus of Production / Evidence
Source Language
English
Civil Law Contract Prescription (statute of Limitations) Property (hypothec/mortgage) Novation Interruption of Prescription Promissory Note Notarial Deed +1 more

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Parties

J. B. Paré & al

Appellant / Defendants

Joseph Paré

Respondent / Plaintiff

Procedural Posture

Appeal / On Appeal From the Court of Queen's Bench for Lower Canada (appeal Side) to the Supreme Court of Canada

Legal Issues

  1. 1 Whether the 1866 notarial deed effected a novation of the 1863 promissory note changing prescription from five to thirty years
  2. 2 Whether the 1866 deed merely interrupted prescription and thus renewed the original five‑year period
  3. 3 Whether the plaintiff, in possession of the promissory note, had the onus to produce it to avoid a finding of prescription

Ratio Decidendi

The 1866 notarial deed did not effect novation of the 1863 promissory note but merely interrupted prescription and could only renew the five‑year prescriptive period; the plaintiff, who retained the note and did not produce it, failed to rebut that more than five years had elapsed, so the debt was prescribed and the appeal succeeds.

Court Disposition

Appeal allowed; judgment of the Court of Queen's Bench reversed and plaintiff's action dismissed

Orders

  • Appeal allowed and judgment below set aside
  • Action dismissed with costs in all four courts against the respondent