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RES JUDICATA IX THE CIVIL AND CRIMINAL LAW OF QUEBEC, Lb: "CAXADIKX" PRTXTIX(i OFFICE, No. 1, Saiiit-a»-M;vtolot .Street, Ix»wer-Towii, 1870 'f- ' V •■■..,/ 'i, /V.V.ri«'-- .-!■■ '*« LAVAL UNIVERSITY FACULTY OP LAW THESIS By J. «. COLSTOJV B. A., L f,. Iff. RES JUDICATA IN THE CIVIL AND CRIMINAL LAW OF QUEBEC. ,»^ LE « CANADIEN " PRINTING OFFICE, No. 1, SauH-au-Matelot Street, Lower-Town, 27 P?ue Buade 1870 6 9 3*y 3> CIVIL LAW. " The authority of a final judgment (rcn jiullcata) is a pre- •' sum\)iion juriset dejare ; it applies only to that which has been " the object of the judgment, and when the demand is founded " on the same cause, is between the same parties acting in the *' same qualities, and is for the s0'iilioiicin. In nil other eases au cxcridio -wsui giveu to the j»arty whoso adveisary at- ttMni)teiem quaestio inter ecisdyern personas revo- catur (Julianus, L. SfJ. de Ex. reijud..) ? The attempted ex])la- nation given by the French and Cana« lution is easily arrivt!retentions are upheld by the judgment in the cause. Subsecnujntly A institutes another action aj'ainst B for the recovery of the principal itself, claiming it under the same deed. Is there rei judicatoe as to the questiaiiie condamnt'e par jugement passt^e en force de chose jugoe a. 'layer la moitie des frais de constnictiim d'un mur, k raison de la mitoyennetc^ de cc mur n'est pas recevable j)lus tard a prdtendre qut: le mur dont il s'agit a 4iA^ construit en entier sur sa propricte et a en dcmander en consequence la demolition. " And yet how is it possible to say that the .second demand is for the same thing as in the action adjudged upon ?0n the other hand it is equally iinpo.ssiltlc to doubt for a moment that there is cculcm quaestlo. Let us now take one of the cases .settled in the Digest ; SI finido pctito, pofitea innula qiuie e regione ejus in fiumlne nata evit 'petjitar, excepfio ohstatura est. (de Excep. rei judic. L. 20 ^21.) Here the same difiiculty appears ; there is undoubtedly eon. And lastly, consider one of the examples given ]»y Pothier (I quote from Evans' translation, vol. 1, p. 587) "you j)roceed against me by the ac^tion qtianto minor is to obtain an abatement in the ]>rice of a hoi-se, which you allege to have a certain fault against which T have warranted him, it is decided that tlie horse has not that fault, or that the warranty did not extend to it, and the demand is dismissed ; if you afterwards institute another ac- tion against me to rescind the sale, on account of the same fault, — n — I may o|»))<>.so the exc.(M)ti()ii rci jml'uuitu" Here wf» liavr in both liiintili'|»reteiHl«i(l was ()() stg., and which do not relate to any fee of office, duty, rent, revenue or any stun of money payable to Her Majesty, or to titles to lands or tenements, annual rents anlioations for a writ of certiorari or upon the writ itself (C.C. P. 1234). As to the first class however it must be observed that judg- ments rendered by default are subject to revision, to wit, those rendered 1"" in suits accompanied with attachment either '. i the hands of the defendant or of third persons in which the defendant has only been summoned through Lews papers, 2' whenever the defendant has not been served personally or at his real domicile, or ordinary and actual i)l}ice of residence, (C. C. P. 483), within a year and a day from the rendering thereof ; and those rendered by default by the prothonotary and clerk of the Court in con- formity to the provisions of articles 89, 90, 91 or 92 C. C. P. either before or after seizure, but before sale, or wiohin ten days from the date of a return of ^iuIJai bona if there is one, or within ten days from the service upon the defendant of any seizure by garnishment, issued in virtue of such judgment. Until the time limited for the revision of such judgments has expired they have only that interim authority .attributed to judgments rendered contradictorily from which an appeal may be, but has not yet l)oen taken ; Init from this must be excepted judgments rendered in suits accompanied witli attachment in which the defendant has only been summoned through news papers, which have in no case the authority of res judicata until after a year from their date; this however does not apply to judgments rendered for wages, or salaries due for the manufacture or conveyance of rafts at- tached for che payment of such wages. (C. 0. P. 552.) A petition in revocation of a judgment (requete civile) sus- pends the authority of res judicata which might otherwise attach to such judgment. OF JUDGMENTS FROM WHICH THE APPEAL fS NO LONGER RECfilVAlLE. The Ordonnance mentions the two classes of judgments coming under this head ; 1° judgments in which the parties against whom they have been given have formally acquiesced, 2° those the delay to take an appeal from which has expired. V Of acquiescence in the judgment Though the Ordonnance uses the terra " formellement ac- quiescd," it is not requisite that the party against whom the judg- ment has been given should have acquiesced in it in express terms, as for instance, in writing, all it requires is that the acquies- cence appear in an unequivocal manner ; and since no one is pre- sumed to have renounced, to a right or acquiesced in a decision adverse to its exercise, acquiescence in a judgment can only be implied in cases where the conduct of the party is such as neces- sarily supposes an intention of doing so. From this, it is evident, that the first point to establish is knowledge on his part of the existence of such judgment. ■■ < J Those only who have the capacity requisite to bind them- selves by contract can acquiesce. 2" Of Judgments from which the delay to tak^ an appeal Ims expired. . ,; ,, The general rule is that proceedings in appeal must be brought within a year from the date of the judgment ; and this delay is binding even upon minors., women under coverture, per- sons of unsound mind or interdicted, and upon persons absent from Lower Canada, when those who represent them or \\ hose . ' ■ im > iM' i i j > i ii > *>i|i H It ' — 9 — duty it is to assist thorn, have hueii osite party and file with the clerk of the Circuit Court the petition by which the appeal is brought wilhin twenty five days from such date (C. C. P. 1143, 1 148.) In appeals from judgments on opj)Ositions to marriage the same formalities nuist be observed as in ajipcals from the Circuit Court (C. C. P. 99G). Appeals from judgments render'^' ••• the provisions of chapter 10, book second, C C. P. must v otitutcd within forty days from the rendering of the judgment; C. C P. art. 1033. The rendered delay is .vjually of forty days, in appeals from judgments under the ]>ro visions of chaj)ter eleven, C. C. P, * ' '>37. OF JUDGMENTS AGAINST WHICH THE APPEAL IS DECLARED TO BE EXTINCT Oil PEREwIPTED. The Ordonnance places thirdly among judgments liaving the authority of res judicata those the api)cal from which is declared to be lost. Appeals are perempted when no proceeding has been liad thereon during three years. Peremption however does not take place when the party lias ceased to be represented by attorney, when the party himself has died or changed his* civil status, or when the proceedings arocompuisorily stayed by any incidental proceetling. Peremption takes place against corporations and against hU individuals even against minors, when they are represented ; — it does not however take place against the Crown. C. C. P. 11G8, •454 to 457. Although the time has elapsed, the peremption is not acqui red until there is a judgment deolarLiig it to be so, and if after the __ 10 _ expiration of the time and before the service of the motion to have peremption declared there is any useful proceeding taken, such peremption is covered. One more point must be obseiTcd in answering the (juestion what judgments have the authority of res jvdicattt ; it is tliat a distinction must be drawn between judgments rendered " en ma- tiere de jurisdiction contentieuse, " i. o. those which contain a condemnatio or absolutio as the consec^uence of the affirmation a denial of a right and of a legal relation between the [)arties ; and those rendered "en mat iere de jurisdiction gracieuse" whicli do no more than authorize, pennit or forl)id, as homologating an a,dvice of a family council, authorising the sale of a minor's lands, &c. To the former class alone attaches the force of res judicata. Another (pieation now suggests itself. In a judgment is to be found as a general rule as well the conderanatio or ahsoluiio as the reasons which have led the judge to pronounce it ; indeed it is obligatory on our judges so to draft their judgments in matters subject to appeal. Has the entire judgment the authority of res judicata, does it attach equally to the reasons, Zcs raoiifs, and to the dispositif, or has the dispositif alone this force ? A glance at the considerations which have conduced to the esta- blishment of this principle in the code of laws of all civilized communities will help us in solving the difhculty. The legislator has two evils to avoid ; on the one liand, he must guard against j)0ssible error on the part of the judge called upon to decide the question raised by the litigants, on the other, it is absolutely necessary to limit in some way the right of a paHy to bring again and again into issue, points which have been alroady the subject of contestation between himself and another, and have been adju- Gated upon. To lessen the risk of error coui'ts of revision and appeal were constituted, so that a party who conceived himself aggrieved might have the question at issue submitted to another court and other judges ; to prevent the recun'ence of a disT)ute on ttie same ground tjelwetin the aauii parties it was established, as a presuinptio j'Liris dejure, that when a question was finally decided, that is when no further appeal was possible, the decision therein pro veritatc habetvr. Now it is evident that if we attribute the force of res judicata to the disiiositif of the judg- njent alone, to the absohUio or condy/mnaiio only, the end pro- ])osed will by no means be attained. What benefit for example can be derived from the fact that a judgment, which has dis- -11- missed a petitory action, pro vcritate luihctur, if wlicn a second action is instituted in relation to the same pro})erty, by and against tlic same ]>artics, basod on the sfime grounds, the fact that the judge in the former case had founded liis judgment on the lion existence of a right of ownership in the Phiintili' over the ])roi)orty revcxidicatod, is not a finding vvliich the court seized of the second case is l)Ound to adopt and follow '< It must then be conceded that the reas(.ns or motifs of a juflgmcnt have the authority of res judicata. But have all the reasons assigned in a judgment this authority ? A distinction must be drawn, and we must consider as clothed with the authority of res judicata the immediate reasons or motifs only, eras Savigny styles them " les elements ditjwjcnient," that is to say, those reasons only the im- mediate consequence of which i^ the condemnatio or ahmlutio pronounced. For instance, in a petitory action, the finding as to the right of ownership of the plaintiff, the validity of his title, the possession of the defendant ; in a personal action, the exis- tence of an obligation between the parties and its non fulfilment. The authority of res judicata ordy takes effects with regard to the (object of the judgment, and the [(resumption according to our Code applies only when three things concur : lo when the demand is founded on the same cause ; 2o when it is between the same parties acting in the same qualities ; and 3o when it is for the same thing as in the action adjudged upon. (C. C. art. 1241. I shall consider each of these conditions separately, beginning with that Ut sit eadem res. "The (now) demand must be for the same thing as in the action adjudged upon. " By this must not be u' 3rstood, as the terms of the article would seem to imply, thai « object of the demande, of the con- clusions of the dc(jlaration, must be the same in both cases ; were this so, very limited indeed would be the application of the prin- ciple and its utility. The object is to be sought not in the ])lain- titf's conclusions alone, but by an examination of the issues raised between the parties by their pleadings ;the subj 'ct matter of any issue is the " object of the demand " for all the purposes of article 1241. Thus A sues B. for the recovery of a year's interest on £-500, an amount due under a deed of obligation ; to this B pleads payment of the principal i)rior to the date from which the interest is claimed, and a judgment follows for either the plaintiff -12- cir the (lufuiidaut. This judgiiiont inren jadicitta not only as to the .sj)ccitie niaount which the plahitifl' .sou^'lit to recover, hut al.so on tlio ((uostiou of ])}iyment of the principal, which beciane hy the pleadings the point at isstfc between the jMVticH. Again, A institutes against B a petitory suit claiming a.s owner a particular piece of land a.s foiining part of an estale of which he ])reti'nds lie is pro])i'ietor, it having devolved to him by succession; the defendant d(^nies his right to this estate; the judgment wliich intervenes is tiiial on the question of A's right tliereto, his right of ownership over the whole estate ]>econiing by the pleadings the matter as to which the parties arc at issue. The object must be the same ; but this must not be under- stood too litcjrally ; all that is required is that it should be sub- stantially the same, for the fact that it had undergone some change or modification, as if a flock of sheep had increased or dimi- nished in nuiuber, is of no moment. Idem coiyus in hue cxcep- tionc noil utique omni prlstina qualitate vet quantitate serhuta nulla adjectione dlmiuutioneve facta, sed imigums p)V com- 7iiuni uiilUaie accijntur L. 14,//. dcexcep. reijudic. Under this branch of the subject comes up a question which has been the constant source of differences of opinion and conti'a- dictions, most of which would be obviated were the requisites at nt eaderii res et eadem causa peteiidi replaced by the single one ut sit cadem quaesth. I refer to the rules pars in toto, mm fotuni in parte and their a])] plication. The former rule is thus stated by Ulpianus : >S'i quls cum lotum petiisset pitrtem pcUtt except'io rei jiulicatae nocet nam pars in tolo est, eadem emm res acclpitur ct si pars petaiwr ejus quod totitm petitiim est. L. 7 ff. eod. tit. Unfortunately for this rule its warmest supporters are to be found among those who err woefully in advancing as an incon- trovertible truth the maxim .>on totitm in parte, and applying it to the letter ; — and curiously enough, he who has written the most encrgically against the invariable and absolute apjjlication of the latter, maintains as strenuously that the upholders of pars in toto are radicfilly wrong. It would really seem to be absolute- ly necessary to have rules the converse one of the n»e I'usaj^e, tout ; in all these c-ases the authority of rea judicata attaching to the fonnor jiuJj^eut will bur iny second action. m We conic now to the maxim i\on totum in parte. The deci- sion us tt> a part can have no hearing on a ((uestion concerninj^ the wlioli;, urge the upholders of this rule, and they would apply it absolutely. Hut it is clear that if A claims £1000 from B under a deed of sale and fails, that he cannot suhsequeiitly claim £2,000 the whole amount mentioned therein ; again, if lie seeks to be recognized as j>roprietor of an undivided fourth of a farm and is un.successful he cannot by a .seconart3'H])rotcnslon. (HhcIo.sos the object ; that to On what /i'ii>i. tlieir idtimatc expression, the legal fact which they tend to establish and from which Hows, as a necessary con- sequence, the solution of the question at issue, which, as consti- tuting the cause, is alone of consc(|uenee. As many ditfcrent rights of action as a suitor has, ho many actions may he liring, and this whether the caumw were eoexi.s- tant or the one was posterior to the at'tion foundtid on the other. Thus A institules ;in action against B on a deed of obligation, the judgUKMit over-ruling B's pretensions that the deed was a forgery, is no bar tothe plea that there was no consent legally given by him to the cotitracrt as to whicli he is sued, that he had not the capa- city to conti-act, that the deed is informal. In cases such as the foregning howev(,'r, attention must be paiacity in one of tin.' parties thereto, )tor, and all jvidg- ments for or against the latter have the authority of ren judicata as to the former. As to those rendered in tavor of the principal debtor there can be no doubt, for the surety's obligation being accessory to that of his principal, he can in any cajse, be bound in the same measure only that his principal is, and as to those judg- ments given against the principal debtor, the debt is more imme- diately his, he it is who is more particularly in a position to meet the creditor on the question of the existence of the debt ; and the surety in bringing up the matter a second time could only do so as the assign (h,a.hens causam) of the principal debtor. Besides, in acceding to the principal obligation he tacitly gave to the principal debtor mandate to represent him in all matters concerning the existence and validity of such obligation. On the other hand the judgment rendered against the surety does not estop tlie principal debtor from putting the same matter again in issue, for the former has no authority express or implied to represent the latter, or to bind him by bringing to judgment questions bearing on the original debt. Were the judgment, on the contrary, favorable to the surety, it should, 1 think, benefit the prinoi,>al debtor, for the surety has authority to extinguish the debt by payment or. by any means equivalent thereto. When, however, the principal and surety are jointly and severally obliged, the judgment rendered for or against the one benefits and binds the other. if We come now to another class of cases; in which the relation between tbo parties is that of assign (kabeiis causam) and autfMr. Heirs and legate(!s, whether universal or by general title are represented by their aidcwr in all suits to which he was a party ; consequently the judgments therein have the authority cf res judicata as to them. Legatees by particular title are likewise represented by the testator in all suits relating to the object of their legacy. They are not however represented by the heirs or universal legatees. As to other assigns by particular title, they are represented by their aiUeur in all suits instituted at a date anterior to that, of their acquisition, whether the judgment was rendered prior or subsequently thereto. As to those rendered in suits begun after — 20 — Rucli aoquLsitlon, if favorable to the ]">resented, however, by his immediate debtor only, and not by the third holder of the pro- perty mortgaged. When however the creditors have matters personal to them- selves to urge, as e. g. when a question arises between two hy})0- thecary creditors as to tlu^ir r.vi{)ective ra!ik, the judgments in suits against their common debtor are as to each of them re."! inter alios judicata. To the hyi)othecary creditor must be assimibited tiie pledgee creditor. Though i\\ti aaieur represents his n^sign. as shown above, the converse does not obtain ; consequentiv jiidf^irients rendered against the latter do not affect the position or rights of the formei*. So far have ]>een considered for the most [)art, ca.ses vvhere judgments whether favorable or not, rendered in suits against one person, had the authority of rc>^ jiulicata as to another. There are h<»wever many cases whei-e while one may avail himself of judgments favorable to another, he is not boun«l by those adverse to him. " C'est ce qui arrive (on this head T shall content inyself by quoting from o Larombiore, on ort. 1*^51 Nos. 101 and 102) lorscpi'une ]iartie figurant en cause, soit comnie demanderes.se " soit comn)e defenderesse. y a ett^ coD>ridt5r*^o |?ar I'autre partie — 21 — " comme ayant (jualite jtour cxercer ractioii on pour y defend ic, " y a (jte }»iise entin comme seul et lif,nt'mie eontradieteur, bieu " que, en realite, elle n'ait i»i (jualite parfaite ni phnns ])ouvoirH ii " I'effet de representer ainsi celui ou ceux (pie le fond du debat " int^resse exclusivement ou concurreniment avoe elle. Dans " ce cas si lojugement qui hii donne gain de cause ])eut etrc " oppose par celui ou ceux qu'elle est r.enst5(! avoir rcpr(^sent(^s en " justice ce n'est |)as parcequ'elle a eu un dioit (piolconque de les " y rej)resenter eiiectivement, mais bien parce que son adversaire, " en la choisissant ou en Tacceptant pour son legitime conti'a- " diet jur, doit subir les consequence du principe de representati(jn " (pi'il a lui-meme pose. " D'auti-e part, s'il a obtenu gain de cause les tiers qui n'ont " pas 6tti reguliei-enient rt^prdsent^s dans I'instance, peuvent re- " pousser le jugement comme res Inter alios judicata, parceque, " en effet, ils sont des tiers etrangers dont les droits n'ont pu etre " compromis malgro leur volonte et sans leur concours. " En voici quelqucs exemplos. L'usufritier n'est certainement " pas I'ayant cause du nu ]n-oprietaire. II est lui memo proprie- " taire d'un droit independant de la nue j)ropriete. Le posse^seur " de cette nue propriete ne le i-epresente done point dans I'ins- " tanee engagee sur la propriety avec un tiers, (jui re' .ssit a, faire " reconnaitre sans qu'iPsoit appele ni reprdsente en cause, ses " droits en pleine prripri.ete et jouissance sur la chose grevee " d'usufruit. L'usufruitier ne represente pas d'avantage lo nu " proprietaire. Cependant les jugiMnonts rendus en faveur du nu " proprietaire ou de rusufruitier pris par leur adv^ersaire comme " SOS legitimes contnulicteurs, |)rofitout a rusufruitier ou an nu '' ])i'oprietaire. " II en est de meme des jugements qui, concernant une chose " ou un droit divisible, ont etCi rendus en faveur d'un seul des " coheritiers. co-proprietaires co-dehiteurs ou co-ci'danciers sini- " plement conjoints, lor.scpi'il a ett^ adniis dans linstance comme " eontradieteur legitime pour la totalite de la chose ou du droit. " Ces jugomeiits profilent i\ ses consorts. " Nous en disonsautant des jugements rendus en faveur du " femiier locataire, cn;ancier gagiste ou antichvesiste sur le fond " meme du droit ({ui appartient au pi'Ojirietaire, relativemeut " aux choses donut^es en louage ou eu nantissement ; " Des jugements rendus en faveur du mari, (piant aux choses " appartenant k sa femme, et au sujet desquelles 11 ne pouvait '• regulierement agir sans son concours ; . •>0 " De.s jngoinent^i rendiis en faveiir de tout ])Ossesseur de fait " ou propiietaire {)utatif do bonne ou r conviction by a comy)etent juridiction, at home or abroad, bars a second indictment for the same offertce* ■ .■■;■'. *.:;.' PROPOSITIONS. A f^eed of sale intervones between aHliipbiiilder and another person oy which the former sells and the latter buys a barque of 500 tons, which the former is constmctinc, her frame only being up, and which ho is to complete ; such a sale does not transfer the property as to third parties without a delivery (tra- dition.) The renunciation by the tenant to that provision of law ex- empting certain articles from seizure, is not contrary to public order and is valid. A penal clause attached to a testamentary disposition depri- ving the legatee of the bequest in the event of his contesting the validity of the will, is valid and must, if the will is upheld, be strictly enforced. A person may be domiciled in a place where he has no actual residence. By the common law of Canada i. e. the English public law, the judgment of a foreign tribunal has the authority ofresjiuli- cata. Legatees have no hypothec on testator's property for pay- ment of their legacies unless the will specially grants it and con- tains a description of the property affected. 11 : One of several joint and several debtors cannot attack, by tierce opposition, a judgment rendered against his co-debtor, ex- cept he proves fraud and collusion. -29 — The property of a partnorship cannot bo seized for tljo indi- vidual debts «>f the niembers thereof, even though thoy are jointly and aoverally liable therefor. A judgment debtor, in whose hands an attaehment of the moneys due his creditor has been lodged, can prevent execution only by uiicring to his creditor the amount of the judgment on obtiiiiiing nuiin kv^ioi the seizure, n'^d depoaiting sui;h amount. The general rule of law is that the decision of a court of criminal jurisdiction, is no ground of