« PreviousContinue »
deserves, and the same disregard of English and American writers is manifested by the European jurists. Thus, Felix, Troplong. Mareadé, aud even Savigny, make little or no allusion to the English and American jurisprudence; aud when we refer to the English or American writers, we find that in their appreciation of the opinions of French and continental jurists, they fall into many inadvertent mistakes. sometimes into grave errors. Thus. Dr. Parsons, in his late work on Notes and Bills, affirms, upon the alleged authority of Pardessus, '' that in France the limitation and prescription of the place where the contract was made would prevail, no matter where the contractor was used," (vol. 2, p. 382) whereas Pardessus supports the lex loci solutionis, and in default of it, the Ice domicilii debitoris at the time of the contract. Again, at page I58'J, foot note v., the learned professor states it to be the opinion of Pothier that the lex loci and not the lex fori should govern, whereas Pothier never speaks of any but the lex domicilii creditoris. Mr. Guthrie, p. 219, in turn, says that Pardessus and Boullenois favour the lex domicilii debitoris, and does not notice the distinction which both these commentators make, when a place of payment is specified. Mistakes have even been commited by writers in their citation of works composed in their own language, Thus, Félix asserts that Dunod favours the lex domicilii debitoris at the time of the institution of the action, whereas it is the lex domicilii debitoris at the time of making the contract which is supported by Dunod. These examples, to which many others might be added, show the importance of a careful and detailed investigation of the subject.
In this Province there exists a wide diversity of opinion. In the late case of Wilson v. Demers, the question was raised before all its tribunals, and was differently decided by each of them; but before going into the grounds of these varying judgments. the facts of the case must be briefly stated.
Demers, the defendant, a native of Chambly, P. Q., went to Fonds du Lae, Wis., and there carried on business for some years. In the course of his dealings in the city of New York, in 1857, he gave his promissory note to Wilson, the plaintiff, payable four months after date, at a particular bank, at Fonds du Lae. A few months afterwards he left Fonds du Lac, aud, returning to Canada, began business at Valleyfield, near Montveal; and, so as not to differ from the honorable judges in appeal on mere matters of fact, it may even be said that he absconded from the United States, as their Honors held; for it is quite immaterial to the decisiou of his case whether he did or did not leave his American domicile suddenly, secretly, and fraudulently. Demers has ever since the beginning of the year 1858 resided at Valleyfield. Wilson alleging that he became acquainted with the whereabouts of his debtor only on the 19th of April, 18CG, and that by the laws of the State of New York and the State of Wisconsin, the said promissory note was not prescribed, brought his action thereon before the Superior Court in Montreal, against Demers.
The defendant first demurred to this demand, upon the ground that that court had nothing to do with those foreign laws, prescription being governed by the lex fori exclusively. This demurrer was maintained by the court below, his Honor Mr. Justice Berthelot holding that "the prescription of a promissory note made in a foreign country, and payable there, is to be governed by the lex fori and not by the lex loci contractus or lex loci solutionis.'' * This decision having been appealed from to the Court of Queen's Bench, was reversed on a point of procedure; and the question at issue was reserved until the final determination of the case on the merits.
The defendant also pleaded, 1st, the general statute of limitation of six years, 10 Vict. c. 11; 2nd, a special prescription of five years, under 12 Vict. c. 22, applicable to bills of exchange and promissory notes due and payable in Lower Canada.
These pleas were dismissed by His Honor Mr. Justice Mondelet, before whom the case was argued on its merits, the learned judge holding that the true rule of both the old and the new French jurisprudence, which should prevail in Lower Canada, is the lex loci contractus or the lex loci solutionis, when a place of payment is specified, j
Brought before the Court of Review, in Montreal, the decision of Mr. Justice Mondelet was reversed by Mackay and Torrance, •T.J.. on the 30th of November, 1868. His Honor Mr. Justice Mackay, for the Court, maintained that both pleas were well founded, that the statute of limitations fully applied to this as a commercial case, that the Promissory Note Act equally applied, and that the words ;idue and payable in Lower Canada," therein used, involved no more than "due" or " due and exigible "; and
• 12 L. C. Jurist, 222. f Hud.
in support of this ruling the learned judge quoted Symond's Law Milking, p. 413. He concluded his opinion by the following remarks:
•'Volumes have been written on the domicile of the debtor, as affecting the remedy or the suit; about his domicile. at the time of the contract, at the time of the suit; on the place of the contract, the place for payment, &e. The Bar is familiar with the reasonings pro and con. As many authors are ou one side as on the other. The old ones were divided, and so are the new. Pothier has been attacked for his opinions by Troplong, and lastly Troplong by MarcmU. A refuge can be found only in the old general rule, that the lex fori must prevail in cases of personal action such as the present one." *
The case having been taken into the Court of Queen's Bench, by Wilson, the decision of the Court of Review was reversed, upon the ground that the defendant absconded from the United States, and that his creditor did not discover his whereabouts until shortly before the institution of the action, their Honors applying to this case the maxim of the Roman law: "Contra <wn vdlentem ugere nulla currit prescriptio. "j"
Mr. Justice Badgley, however, held that in general and ordinary cases, the lex fori should rule in matter of limitation of personal actions, 1st, because prescription affects merely tie remedy; and 2nd, because prescription is a law of public order and policy.
The honourable Chief Justice and Mr. Justice Monk expressed no opinion whatever as to the lex loci contractu* or the lex fori. and simply concurred with Mr. Justice Badgley in holding that, as tlic defendaut had been guilty of fraud against his creditor by absconding from the United States and by not informing hi* creditor of his removal to Valleyfield. the laws of Lower Canada could not be invoked for his relief.
Mr. Justice Caron concurred in the judgment of the Court, for, amongst other reasons, the following: "IJ'apret notre droit commun applicable," he said, "l'absencc du défendeur telle que prouvée a interrompu la prescription et l'a empC'che de courir an prejudice du demandeur."'
It is admitted that prescription is a law of public order and policy; and yet the public interest is superseded by the private
* 13 L. C. Jurist, 24. f 14 Ibid.
interest of a creditor. If such reasoning were logical, no one could be astonished at the ruling of the honourable court.
It is because prescription is a law of public order and policy that no attention should be paid to the fact that the defendant was absent or had absconded from a foreign country, and that the protection of that law which has been enacted to secure the peace of the whole community should be extended to all, to foreigners as well as to residents. Is the maxim privatum incommodum publico bono pensatnr, not applicable in this as in all civilized countries? Clearly, the reasoning of Mr. Justice Badgley should have led him to a conclusion absolutely the reverse of the one at which he arrived.
Iu the case of Lippman v. Don.* the defendant. .Sir A. Don. had left France for parts of England unknown to his French creditor; and yet the counsel and judges iu the case never for a moment entertained the idea of invoking the maxim contra iwn calentem agere noil currit prcescriptio. Still, the English statutes of limitations contain an exception in favour of persons "beyond seas," whether they be creditors or debtors, provided that the limitation had not commenced to run. But this exemption was never applied to foreign prescription.
In virtue of what law, moreover, can absence, fraud, or any other disability of a creditor to bring his suit in due time, be held a cause of interruption of short prescriptions, such as prescriptions of five or six years in commercial matters. Not a single authoritywas quoted or indeed can be quoted in support of this novel proposition. It is true that absence is a cause of interruption of long prescriptions, such as those affecting real rights, because the Coutume de Paris, which is part of our common law, expressly declares and enacts that prescription can be thus interrupted ; but that law never extended this rule to short prescriptions. f
True, the ordinance of 1673, in an express article, declares that the five years prescription of bills of exchange runs a l'egard des mineurs et meine cles absents. But as the commentators observe,
* Infra, p. 140.
t Masse, 1 Dr. Com. 237,492; Riviere, Repetitions Ecrites, 395; Pardesius, Lettre de Change, No. 331 ; id. Dr. Com. No. 1990 ; Merlin, Repertoire, Sup. t. xrii, p. 589; Troplong, Prescription, t. 2, No. 1038; Paris. 23 anil 1836, Dev., 20, 2, 258; Delangle, t. 2, p. 727; Bedarride, Des Sociêtes, t. 2, p. 699; Pothier, Lettre de Change, p. 206.
this restrictive proviso was unnecessary, it being already a principle of the common law. The Code Napoleon contains no such proviso; and yet all the jurists and courts of justice reject absence of plaintiff or defendant as a cause of interruption of prescription in commercial matters.
The Coutume de Paris, in order to make absence a cause of interruption of prescription of real rights or actions. made a special enactment to that effect, which would have been unnecessary if the common law had been as alleged.
Heretofore in Lower Canada, prescription in commercial matters was generally of one year, under the article 126 of the Cputumc de Paris; but no provision was made for cases of absence, minority, interdiction, or any other like disabilities; and as Pothier remarks, * no interruption could be presumed, y
The same rule has been maintained with regard to the prescription of five years of arrears of rentes constitutes. The ordinance of 1510, which introduced that prescription, has no disposition with regard to minors, absentees, or other like persons: and consequently absence, minority, or any other disability was not considered a cause of interruption of that short prescription.*
Finally our statutes of limitations in commercial matters have boon framed upon the English statutes of limitations: still they do not contain the exception made in favour of persons "beyond seas," by the statutes of James and Anne. The 10-11 Vict., c. 11, enacts that no action, of a commercial nature, shall be maintained unless commenced within six years; and it is remarkable that the only exception provided for is where there has been an acknowledgment of the debt in writing or a partial payment, while the Promissory Note Act contains no exception whatever. Therefore absence, or any other disability, not being mentioned in either of these statutes, the Legislature clearly intended that absence, minority, or any other disability, should not be held a cause of interruption, for the simple reason that prescriptive laws are laws of public order and policy.
Moreover, has not our Provincial Legislature expressly sanctioned this rub, by enacting special exceptions in favour of absentees and
* Dcs obligations, p. 717.
f See also arrêt of the 3rd February, 1650, reported by Orillon. Recueil des arrêts.
1 Arret of the 1st June, 1348, Traité dcs Minorites par Meslo, p. 502.