other like persons in respect to the limitation of the time for bringing certain appeals ? * This construction of statutes of limitations is moreover strongly supported by the authorities. "Indeed," says Angell, on Limitations, ed. 1869, § 194, "there appears to be no authority in favour of the doctrine that if the persons mentioned in the above section are not expressly excepted from the operation of the statute of limitations, there exists a virtual exception. But it has been holden that no exception can be claimed unless expressly mentioned. General words of a statute, it is considered, must receive a general construction, and unless there can be found in the statute itself some grounds for restraining it, it cannot be restrained by arbitrary addition or retrenchment. And on this principle it was adjudged by Sir Wm. Grant that absentees who are not expressly excepted in the act of limitations of Jamaica were intentionally rejected, and therefore could not be introduced by construction; and it was also declared by Sir Eardly Wilmot in the House of Lords, that infants, like other persons, would be barred by an act limiting suits at law, if there was no saving clause in their favour. § + The disability of being "beyond the seas," provided for by the English statutes of limitations and those of most of the States of the American Union, is omitted in the statute of New Jersey as well as in that of the Province of Quebec; and consequently is not recognised by the courts of that State. || In the case of Fenn v. Bowker, the Court of Appeals of Lower Canada laid down the same rule, and held that although at common law an acknowledgment in writing or a partial payment did operate as an interruption of prescription, yet as the Promissory Note Act contained no exception, the court would not make one. How can the honourable court reconcile its ruling in Fenn v. Booker with its ruling in Wilson v. Demers, more * Cons. St. L. C., c. 77, s. 55. † Bucklin v. Ford, 5 Barb. (N. Y.) sup. ct. 393; The Sam Slick, 2 Curtis, C. C. 480; Howell v. Hair, 15 Alab. 194. See Mr. Chancellor Kent in Demarest v. Wynkoop, 3 Johns 129. Buckinghamshire v. Drury, cited in Beckford v. Wade, Beardsly v. Southmayd, 3 Green, 171; Taberrer v. Brintnalt, 3 Harr. (N. J.), 262. 10 L. C. Jurist, 120. especially as the common law never admitted absence or any other disability as a cause of interruption of commercial prescription? Finally the judgment of the Court of Queen's Bench is contrary to the letter of our Code. Article 2269 is indicated by the Codificateurs as showing the old law to be that "prescriptions which the law fixes at less than thirty years, other than those in favour of subsequent purchasers of immoveables with title and in good faith, and that in case of rescision of contracts mentioned in article 2258, run against minors, idiots, madmen, and insane persons, whether or not they have tutors or curators, saving their recourse against the latter." If absence of the debtor suspended prescription in commercial matters, as the Court of Appeals has held, according to the maxim contra non valentem agere nulla currit prescriptio, à fortiori prescription should not run against minors; for as it has been very properly said, "les absents méritent moins de faveur que les mineurs et les interdits."* Mr. Justice Caron further urged that the Promissory Note Act did not apply to Demers' note, because it was not due and payable in Lower Canada. However, that statute does not require that the note should be made due and payable in Lower Canada; the words due and payable involve no more than due and exigible, and every promissory note sued upon in Lower C'nnada must be considered as due and payable in Lower Canada. Even granting that the 12 Vict. c. 22, does not apply to this case, then the 10-11 Vict. c. 11, does. If the 12 Vict. merely refers to notes made due and payable in Lower Canada, it cannot be reasonably assumed that the same does supersede in this casc the 10-11 Vict., which provides for the limitation of all notes payable in or out of Lower Canada. Mr. Justice Caron is of opinion that the 10-11 Vict. has been repealed by the 12 Vict. This was certainly not done by express enactment; it can only be inferred from the fact that the 12 Vict. provides for the prescription of promissory notes. But if that statute does not comprise all notes, v. g. that of Demers, then it cannot be considered as repealing the former statute in respect of the same. But, not to be severe upon the judgment of the learned judges, it must be mentioned that two of their Honors expressed a dictum a je pense" upon the real question at issue; it may even be * Laurent, Principes du Droit Civil, vol. 2, p. 143. said that they were of the opinion that the lex loci contractûs or solutionis should rule in all cases of prescription of personal actions. No authority was quoted, no argument made to support the proposition. "Je pense," said again Mr. Justice Caron, “que le juge Mondelet a bien jugé en disant que c'était d'après la loi du lieu où avait été fait le billet ou bien de celui où il avait été mis payable, que la cause se devait décider; cela étant, d'après la preuve, la prescription n'était pas acquise, et le défendeur a été bien condamné." By cela étant, does the learned judge intend to convey the idea that the proposition he enunciated should be accepted as a matter of course. The question, however, is extremely complicated and difficult; and as it is the only point worthy of any notice in the decision of the learned judges, we shall say nothing further of the judgment of the Court of Queen's Bench; and we will now endeavour to show that the rule laid down by Mondelet, Drummond, and Caron, JJ., is unfounded in law, and that the lex fori should govern in all cases. Relying upon the authority of Boullenois, Pardessus, Félix, Troplong and Savigny, Mr. Justice Mondelet drew the conclusion that the true doctrine is that the prescription of the place of payment must govern, and where the place of payment is not specified, then that of the place where the contract was created." Boullenois holds the law of the place of payment, and if no place of payment be specified, the law of the domicile of the debtor, and not, as the learned judge asserts, the lex loci contractûs.* The old French commentators, moreover, do not appear to coneur in the opinion of Boullenois. Dunod, † contends that the law of the domicile of the debtor, at the time of the contract, governs. Merlin quotes two arrêts of the Parlement de Flandre, the first of the 17th July, 1692, the second, of the 30th October, 1705, which held the law of domicile of the debtor at the time of the institution of the action to rule in all cases of conflict of personal prescriptions; and he further reports another case which originated before the Code Napoleon, and was decided in the same sense by the Cour de Bruxelles, on the 24th September, 1814. Berryer and Laurière on Duplessis, * express the same view. And if to the above authorities we add the old civilians Huber and Voet, and also Merlin, who evidently wrote under the influence of the then prevailing notions on the matter, it seems that the old French common law does not admit the lex loci contractûs. It is contended that the weight of modern French authority is against the doctrine of the lex fori. But what is the presentopinion in France and on the continent generally? On reference to Pardessus, † we find first that his language has not been quoted in full by Mr. Justice Mondelet, for there the sentence contains these words, immediately after those cited: "et s'il ne l'a pas déterminé, par celui du domicile qu'avait ce débiteur lorsqu'il s'est obligé; parceque la prescription étant une exception qu'il est permis au débiteur d'opposer à la demande de son créancier, c'est naturellement dans sa propre legislation qu'il doit trouver ce secours." If the debtor is thus to look only to the law of his own domicile, and if his plea of prescription affects merely the remedy, as admitted by Pardessus,—what has the law of the place of payment, or of the domicile of the debtor at the time of the contract, to do with the case. Nothing; it seems clear that the reasoning of Pardessus should lead to the opposite conclusion, to wit, the lex fori, or lex domicilii debitoris at the time of the institution of the action; and it is remarkable that two years before the publication of his Droit Commercial, he had, in his Eléments de Jurisprudence Commerciale (page 112), pronounced in an unqualified manner for the latter opinion. it is astonish With regard to the alleged authority of Félix, ing that the learned judge did not quote a few pages further on. Félix lays down various exceptions to the rule locus regit actum, and among others, the case of limitation of personal actions. He contends that the law of domicile of the debtor at the time of the action should be the criterion, without paying any regard to the place of payment. He further declares that the lex loci solutionis is favoured only by Boullenois, Pardessus and Troplong among the French writers, and by Christin, Burgundus, Mantica, and Favre among the civilians. That Félix is in favour of the lex fori is evident from the fol * Traité de la Prescription, liv. 1, chap. 1. lowing remarks, made by him after reviewing the various systems advocated in this matter: "Bien qu'il y ait quelques différences dans les termes employés par ces auteurs, on voit qu'ils aboutissent tous à cette conclusion que la prescription s'acquiert d'après la loi en vigueur au lieu où siége le juge compétent, pour statuer sur les actions personelles formées contre celui qui oppose cette défense." Troplong holds that the law of place of payment should rule in all cases. * Savigny is decidedly in favour of the doctrine maintained by the honourable judge. Many say," he remarks, p. 201, "that laws as to prescription are laws of procedure, and must, therefore, be applied to all the actions brought within their territory. without respect to the local law of the obligation. "According to the true doctrine, the local law of the obligation must determine as to the term of prescription, not that of the place of the action; and this rule, which has just been laid down in respect to exceptions in general, is further confirmed in the case of prescription, by the fact that the various grounds on which it rests, stand in connection with the substance of the obligation itself. Besides, this opinion has always been acknowledged to be correct by not a few writers." Savigny finally holds the view that when a place of payment is specified, the law of that place should apply, in pursuance of the rule, contraxisse unusquisque in eo loco intelligitur in quo, ut solveret, se obligavit. Savigny (in foot note u) futher observes, that this doctrine is agreed to by Hert, § 65; Schaffner, § 87; Wachter, 2, pp. 408412; Koch, 1, p. 133, note 23; and Bornemann, 1, p. 66; but that their agreement is only in regard to the principle, not to all the applications of it; since the local law of the obligation is not determined in the same way even by these writers. In fact Hert and Schaffner are of opinion that the lex loci solutionis should be entirely overlooked, and that the lex loci contractûs should rule in all cases. In addition to the foregoing authorities referred to by Mr. Justice Mondelet, as supporting his decision, Demangeat, DominPetrushevecz, Sand Massé || may also be quoted. * Prescriptions, No. 38. † Conflict of Laws, Guthrie's ed., 1869. Demangeat on Félix, vol. 1, p. 223, note a. § Précis d'un Code de Droit International, art. 197, p. 88.- |