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J
LAVAL UNIYEHSITY
FACULTY OF LAW
T 11 1^: SIS
H.V J. «. COIJiiTO\ B. .1., I, I.. H.
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 s<imc thing as in the action ad-
" judged upon. " Article 1241. C. U.
Res judicata 'pro veHtate habetur is the legal presumption ;
lic aliter t)iodu8 litium multiplicatus mimmam atqne ine^yplica-
bilemfaciat diffi/iultatem ; rmixinie d diversa proymntlarentiLV
its reason ; and the rule of law itself we find laid down by the
Roman jurists, as follows :
//. de Excep. rei judic. L. 3. — Julmnua lib. 3 Digestorum
respondit exceptionem rei judicata) obstare quotient eadem
qiicestio inter easdem personoji 7'evocatur. Repeated L. 7. § 24.
L. 12. Cum quceritur kcec exceptio noceat Tiecne, iriapicien-
dum est an idem corpus sit ; L. 13. Quant itas eculem, idem jus ;
L. 14. Et an eadem causa petendi et eadem conditio persmiarum
quoi nisi concurrunt alia res est.
L. 27. Gum de hoc an, eadem res est, quceritur, Jicec spectanda
sunt, personcB ; idipsum de quo agitur ; causa proxima OAitionis.
A few words tirst on the rise and development of the prin-
ciple in the Roman Law.
Under the empire of the legis actiones we find no trace of
it ; nor was any thing of the kind requisite, for from that stage
in the proceedings known as the litis contestatio, the old right
was extinguished bj novation ; it had been dcductus in judicium,
and ipso* jure all right of action therefor was lost.
— 4 —
IJinlur the socoml .sy.stt'm of jdix-cdiuc; the sainc iiiny be
Biiid otthosoivctioiis in\wi'Hoiiani,qmi'. Iri/llhno jure coiiKlntii iif and
'w\n)Sii Joi'ifould' coiitax ^ed juris ciijUif< ii>0'iilioiicin. In nil other
eases au cxcridio -wsui giveu to the j»arty whoso adveisary at-
ttMni)te<l to briiij^H seeoiid aetion relative to th«; same matter, viz.
the (ixceptlo rei in judicium (Icjiuctii', when no jud;,'ment had
boon rcndorod in th<! tornier case ; the exccptlo reiju^liaUw, after
judgment therein. The lirst dawn of the authority rei jiulicnUfi
is here found ; its negative fiide only howevjT, which Savigny
embodies in the maxim " Tuutc action une fois jugee ne peut plus
etre reproduite. "
It was speeciily discovered that the possible application of
the law was Ikr too limited, for it looked not to the judj^rment
itself, but simply to the fact that a judgment hjid been rendercMl
in an action founded on a given right — it was thus useless to one
who having as plaintiff obtained a decision in his favor on a
point of law was attacked by his former defendant in relation
to the same matter. Gradually the exceptio rei in judicinni dc-
duciee fell into disuse, and the authority rei judicaUv was exten-
ded and enlarged ; its positive side came into play, that no judg-
ment shall infringe the provisions of a former judgment, and the
prin(!iple wjis finally established and settled as expressed in the
extracts from the Digest above quoted.
It is to bo regretted that instead of giving the rule of law
in its sim{)lest I'orm, our Code, following the Code Napoleon,
has endeavoured to give in detail, to a certain extent at
least, the requisites for the application of the principle under
consideration. Where can a sim})ier, and at the same time more
complete sUitement of this laile be found than " exceptio reijudi-
catcB ohstat quotie)i8 ea>iem quaestio inter ecisdyern personas revo-
catur (Julianus, L. SfJ. de Ex. reijud..) ? The attempted ex])la-
nation given by the French and Cana<lian Codes of the signifi-
cation of the words eadem quaestio, (for neither profess to do
more than follow the Roman law on the point,) to wit " when the
demand is founded on the same cause and is for the same thing
as in the Jiction adjudged upon, " is not only the source of end-
less difficulties and countless contradictions, but is actually
erroneous ; and all this would be obviated were the requisites for
the application of the principle stated to be " eadem quaeMia
inter easde^n personas. Of course there can not be eadem quaestio
unless there be eadem res et eadem causa petendi ; but in the
one case the inquiry is, given two questions, is there eademres at
issue in both, and likewise eadem causa petendi ; in the other it is.
4'ikk^il£^
— A —
IH tho(lcinan<i for tli<' simie tliinj^ as in the action .•uljud^'tHl upon,
and is it foumlod on tlio sanu: cnuse. In iliL* fornier ca-so the .s<>«
lution is easily arrivt!<l at, while in thf lattta* it i.s for the most part
jihsolutoly iifcoHsary to h«'^in by sjitisfying one's uelf that the law
does not niran what it say.s.
An example or two will show more readily the tiuth of
what is tluih advanced.
A aues B for the interest accrued on a sum of £5(H). which
lie pretends is due him under a dewl of obligation. To this
demand B ]»lrads payn. snt of the principal before the interest
claimed be^m to run, consequently non-indebtness of such
interest. Ultimanely his ]>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 questi<m of payment ?
Undoubtedly, for in both cases eowism quaestio comes uj) for adju-
dication ; but how can it be said that in the latter case " the
demand is for the same thing as in the action adjudged upon. "
Take again any one of the many decisions quoted by Dalloz
vo. Glwi^e Jur/^e, for instance, at No. 169 we find the following,
"La ]>aiiie 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 e<t<lerii
quaestio, but it is difficult to see that in the latter (^.se the
demand is for the same thing as in the action adjudged u{>on.
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
<iiHo.s nulrvi. (pmMlo, tne existence of the wannrity an«l ol'tlie vice
l)nt tlie (K-niand in the one ease is of a sum of nioniiy which the
l>liiintili'|»reteiHl«i(l was <lur' liiin undei- tiic iigreenient, in the(»thtT
it is the scttint^ asi<le of sueh a^frecnient.
The in<|uiry then in every ease shoiihl he, is there mdf'in
qiKtisflo iiit/'.r ni»<h'vt pt'TKoihUi^, and so often aa the answer is in
the afKrniativc, the principU^ of the autliority t A' re)* judicata
must })e ajjplictl, however diflieult it may he to hrijig the case
within the letter of tl law.
Our Co<les affoni us no answer to tlie (juestion wliat judg-
luents have the authority of re^ judicata, if we except the single
qualiHoation " final" in the English version of article 1241 C. C.
By a curious coincidence the French Codes are equally silent.
We have however positive law on the point, to be found in
the Ordonnance of 1G67 tit. 27, art. 5, " Les sentences et jugements
qui doivent passer en force de chose jugel^e sont ceux rendus en
dernier re.ssort et dont il n'y a appel, ou df)nt I'appel n'est pas
recevable, soit que les jmrties y eussent forniellement ticquiescd,
<iu'elle8 n'en eussent interjete appcl dans le temps, ou que I'appel
ait ete declare peri,"
A judgment then to have the authority of res judicata must
be a detinitive or iinal judgment (of condemnation or dismissiilj ;
and further must have been given in the last resort or not have
been appealed from, or be one against which an appeal is not
receivable either beca\iae the parties have acquiesced, or because
the appeal has not been instituted within the limited time, or
one the appeal from which has been declared perempted or
extinct.
Final judgments alone have the authority of res judicata,
nnd this »ttnches to thotn from the moment they are pronounced,
even when an a[)peal lies, so long as no appeal has been instituted.
Judgmeiits in the last resiort or against ".vhich no appeal is receiv-
able, or the appeal trom which has been declared extinct, have
this authority absolutely, whereas those from which an appeal
lies, but from which none has been instituted, have, so to speak,
but an interim authority, rendered absolute by theexpiration of the
time limited for the appeal, and determined by its being taken.
-7-
OF jrncJMENTS IN THE LAST HKSORT.
Fhey are the following :
rv
r those rendtired in the Circuit Court in suits wliercia tho
nin(»unt or value of the thing doinanded is lesH than $UH}, except
the suit or action relates to fees of office, duties, rentH, revenues,
or sums of money payable to th«j Crown, or to any tith*
to lands or tenements, to annual rents or 'such like matters
whereby rights in future may be bound — C. P. C. lOIJ-'i-^. lint
see 32 Vic, eh. 30, as to constituted rents representing seignorial
dues.
2" Those rendered by tho Court of Queen's Bench oiiajtpeal
in suits wherein the amount or valueof the thing demanded is .^100
or over but wherein the matter in dispute does not exceed the sum
or value of £;>()() 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 an<l other matters
by which tho right in future of parties might be affeete<i.
3° Those rendere<l by Her Majesty in Her Privy Council
in apj)eal from the Court of Queen's Bench.
4° Those rendered undtir the provisions of articles 997 to
1033 inclusive C. C. P. in matters relating to municipal corpora-
tions and offices.
5° Those on ap]>lioations 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 <hily l)rought into the suit
If the party dies before apjiealing, the delav is I'eekoned against
his heirs or legal representatives, only from the day of his death.
In cases of judgment by default in vacation, the delay for
appealing runs only IVom the expiratioi; of the time allowed for
iiling an opposition thereto. (C. C. P. art, IILS.)
As to the Circuit Court, the party appealing from a judgment
rendered therein nmst give the security reipiired by law within
fifteen days from the date of such judguient, and must serve upon
the op]>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 <jther,
whereas the ti'uth lies between the two.
I think it may be safely laid down that in all cases if the
plaintiff i'ails to make out his title to the whole (jf what he asks,
luit establishes a right to any part thereof, it is the duty of the
court, adjudicating on the matter, to attribute to him such part.
— 13 —
Consequently, if the suit isdihinissed in toto, 1 nmiiituin tiuit later
when he seeks to recover a part of the object formerly claimed,
the authority ot res judicata attaching to the former judgment is
a bar to liis action ; and 1 subm't as a good test (juestion in
cases of difficulty the following, had the defendant in the former
case confessed judgment to the extent to which the plaintilFgoes
in his second action, could a judgment have intervened on such
confession in favor of the \n. ntiff. In all cases where the answer
to this question is in the affirmative, I would api)ly the rule pars
in toto, and hold that the judgment on the former action is a bar
to any subsequent suit.
Examples. — Si quis fundum pctierit, deinde partem petal, vel
pro diviso, vel pro indiviso : dicemlum erat exceptionem ()t)Mare.
Proinde et si proponas mihi cerium locum me petere ex eo fundi),
quem peli, obstabit exceplio. Idem erit probandum, et si duo corpora
fuerint petitia, mox allerulruni corpus pclalur : nam nocebit excep-
lio. Item si quis fundum petieril, mox arbores excisus ex eo fundo
petal ; aul insulum petieril deinde aream ^ petal, ff. de Ex. ret
judi. L, 7, Pr.
Si fundum meum esse petiero, deinde postea usufructum ejus-
dem fundi peiam, qui ex ilia causa, ex qua fundus vieus erat, meus
sit ; exceptio mihi obstabit. ff. toe. cit. L. 21 ^ S. ,
The exception would also lie were the second action in reven-
dication of the naked ownership, (nue proprie'te). Again, the judg-
ment dismissing an action by which a right of usufruct was claim-
ed is a bar to an action for the right of use (usage) of the same
property.
It has been contended that the last extract cited from the
JJigest refers to what is termed " usufruit causal," and that this is
evident from the reason given by the Roman jurisconsult quia
qui fundum hahet usufructum suum vindicare non potest, that
consequently it is no authority under our law, and that the
judgment dismissing an a^ition in rovendication of a farm is
no bar to an action claiming the right of usufruct therein.
What ever may have been the doctrine of the Roman law on
the subject (and a discussion on this point would be foreign
to my present purpose), I contend that the extract' as cited is a
correct exposition of our law on the matter. Among others, Du-
ranton (vol. 13. No. 463) contests this doctrine, and his argument
is " cornme I'usufruit n'est pas une partie du domaine, qu'il en
est distinct et sdpar^, que c'est seulement une charge irapo.s^e a
^ Ulpianus a.dds after this word vel tujna, vel lapidea — a manifest error which
he corrects elsev/^here.
— u —
la propricte, une sorvitudo personnelle, Ic viiritablc usufiiiit n'est
pas coinpris rlatis la jtropriott', il en est an contrairo separe et di.s-
tinct. " Proudhori on tlic- other lian<l (No. 1271") after answering
the iiMiuiry in th*; seiuo of* the frai^mont above given, continues :
" La ra'son estevidenie, c'est (ju'un jugement qui embrassc toute
una chose porte sur toutea les parties tie cette chose ; et qu'en
conse(j[uence, cehii qui aprbs avoir 4t6 ddbout^ de ses pr{5tentions
sur le tout vient ensuite en repeter une partie, veut ndcessairement
ranieiier lo juge a prononcer une seconde fois sur le m^me objet,
et c'cst ce que la loi ne pormet pas. "
And in point of fact, what is the right of ownership, and what
are its elements ? Tha jus utendi, the jus fruendi and the jus abu-
tendi. Now usufruct comprises the two former. Is not then a
suitor who, claiming the jus utendi, jus frvAndi and Jtw abutendi
in a farm, has only made out his title to the jus utendi and jus
fruendi, in the same position as he who, having claimed 810,000,
fails to show an indebtedness exceeding $1000 ? Is it not the duty
of the judge in the latter case to render judgment for the amount
proved to be duo, and if the action were dismissed would another
action for $1000, part of the $10,000 formerly sought, bo for a
moment maintainable ? And what difference is there between
this case and the former one ? I can see none.
Nor is usufruct a servitude. It is all true that commen-
tators style it so, in order to draw therefrom such inferences
as suit their peculiar views, but when it comes to the proof, they
must fail ; for while a servitude is a limitation of the right of
ownership, that is, limits the exercise of the ^'ura. utendi, fruendi
and abutemli, .and no more, usufruct comprises two of these rights.
It does not limit the right of ownership of any person, for no
person has such right, but the granting of a right of usufruct
divides the ownership, attributes two of its elements to one per-
son and the remainder to another, each enjoying his own right
irrespective of the other, subject only to the rule apf)licable to
the enjoyment of all rights, even that of absolute ownership, sic
utere tuo ut alienum non ladas.
Again it is said, but a petitoiy action, i. e. one in revendication
of a farm, is altogether different from one claiming a right of usu-
fruct. In practice this may be so, for lawyers in matters of routine,
are proverbially conservative ; but would not conclusions praying
that the plaintiff be declared the usufructuary of a farm and
that in consequence he who holds it (le detenteur) be condemned
to give up the possession thereof, be good and sufficient in law ?
And in an action claiming the ownership the only change would
be substituting the word " owner " or " proprietor " to " usufru-
tuary. "
~ 15 —
Duranton likewise contests the accuracy of l]w ojiiiiir)ri
stated above toucliing the ridit of use, hut ho thinks that the
exception rcijwUcattn is a bar to nn. action for the usufnntt
after the dismissal of n former one claitnin<]f. the ricjht of use. lie
aays : " celui ((iii a I'usufruit, a oar cela ni«*>n»e I'usaj^e, tout <le
m^me que cchii qui a io j)lus a le nioins ; or si Ton a juge que je
n'avais pas meme le droit d'usage c'est-^-dire le droit de prendre
des fruits dans tels fonds pour nies Ixjsoius p(3rHonnols et ceux de
ma famille, on a par cela meme juge que je n'avais pas le droit de
prendre tous les fruits de ce fomls, " (Granted, hut if this is so,
why does not the converse obt^iin ? — If it is a part in one cjise
surely it must be so held in the other. If when claiming the usu-
fruct I made out a title to a right, more limited but included
therein, it was the duty of the tribunal to adjudge it to me ; the
fact tliat this was not done, must be conclusivo of absenee of title
on my part to any ))ortion of, to any thing included in, the thing
demanded.
The judgment dismissing an action claiining a servitude on a
farm is no bar to another claiming a ditferent servitude ; but if
the former is included in the latter therci is res judicata as to it ;
thus if I claim a I'ight of w;iy on foot and my action is dismissed,
andlaftei-wards demand a right of way on foot and on horseback, the
former judgment is a bar to the latter action in so far as it relate:j
to the right of way on foot.
A servitude being no part of the right of ownei'ship the ex-
ception 7'ei.jvdicatae does not lie to an action claiming, for instance,
a right of way over a farm, though a former action of the plaintitis
revendicating such farm had been dismissed.
Besides these cases and others analogous thereto, a number
are decided by this rule, as to which properly speaking it has no
apj)lication, but which have to be brought within its' terms seeing
the substitution already mentioned to the words eadem quaestio
in the statement of the law. I refer to all those cases where
the object of the latter demand though not a part of that of the
former is an accessory thereto or so connected therewith that the
right to it depends upon the decision of the question on which
the parties were at issue in the first suit. Thus, after ray action
for the principal sum due under a deed of obligation has been
dismissed, I institute an action for the ;'ecovery of interest thereori
since such judgment ; after my action in revendication of a
farm hjis been dismissed, I institute another claiming the produce
which hfis since been gathered in therefrom ; after my action in
revendication of a piece of land bordering on a river has been dis-
missed, I set up a claim to an island in said river opposite thereto
J
— 16 —
iin<l which isaii aweswory th<;retc>; 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 .secon<l action rovesidicate the entire
farm. In all cases such as the foregoing the rule is certainly totuiti
in parte. On the other hand, if in the latter case the former
demand hjul been limited to a ape(;ific part of the farm, the for-
mer judgment would have the authority of res judicata as to
such portion only, and the remainder might be claimed and re-
covered by a new action.
The only true guide is the test question alnjady suggested, Is
there eadem qwtestio f wan the matter now in dispute in issue
between the parties in the former suit ?
So if the usufruct of a piece of land, or the naked ownership,
(nue propritite) has been revendicated and subsequently the owner-
ship is claimed, the exception rei judlcatae will lie. So also if the
right of use is first claimed and subsequently the usufruct. Again
the judgment dismissing an action for a right of way on foot and
on horseback, is a bar to a second claiming a right of way on
foot only ; but the dismissal of an action claiming a servitude
over a fann is no bar to another revendicating the ownership or
usufruct theieof.
Ut 8it eadem causa petendi.
Eandem caiisam facit etiam origo petltionia. " La cause
est le fondement l<^gal du droit que les parties font respective-
inent valoir Tune contre I'autre par voie d'action ou d'exception."
It is the generating principle, the basis of the claim set up, the
source from which the demand immediately flows ; for example :
A institutes an action for the recovery of £100 dueun<ler a deed
of sale, the contract of sale is the cause ; but to this, B pleads the
nullity of the contract by reason of violence pnictised on him at
the time he gave his consent thereto, a new (question springs up
as to the validity of the contract, want of consent being the
ground or cause of nullity ; or he pleads the nullity of the deed on
account of irregularities in its form, when the question is as to the
validity of the deed, informality being the cause urged to have it
set aside.
-17 —
Thrt answer to What is iW j>art3'H])rotcnslon. (HhcIo.sos the
object ; that to On what <loc-t lio baso it, givos the cause.
It is the pvox'nna ctiufia cwtioit^, it must l)C remarked, and
that alone wliicli thi; law takeK into aeeount, the causae rnnolae
are as nothin^jf in so far as concerns Mie suhjeit under considc-
Vati'Hi. it is the suimnin;; u|), so to speak, of the rausae reuiotif
of the iiic>/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 pai<l to the cMstinction
alreadv drawn between the causae rcruotar. and the causit,
•priKiiina a,cfio)nx ; thus, while after a l)arty has been unsuccessful
111 his demand that a will shotild be annulled for informalities, he
may attack it again on the ground that the testfitor was insane ;
while a iudmnent dismissin<jc an action askinc; the setting aside
of a contract for want (S caj>acity in one of tin.' parties thereto,
<loes not i)rcvent a sinnlar action grounded on the fact that frjuid
was practisetl ; the authority o^ res jwUcata art-iching to a judg-
ment, maintaining the validity of a contract which had been im-
pugned on the ground that the consent thereto was the result of
violence;, is a bar to a se(;ond action attacking the same contract
on the ground of fraud ; and the iudgment on an action asking
the setting aside of a will for one set of informalities, bars
another in which other irrefjularities are urired with the same
view,
Ut sit inter easdem personas.
Res inter alios judlcatae neque emolame'idura afferre Ids
qui jadicio non inter/iteru/nt in'Xjvie prejuiiicmin sohmt irnK/a re.
The demand nmst be between the same parties acting in the same
(qualities.
A physical identity is not sufficient there must be a legal
identity likewise, the parties to the suit must be the same jjer-
soiiae, V. g. A impleads B on a deed of obligation, each acting in
his own name and fails ; nothing prevents him from biinging,
as tutor to G, ' ; rer action against B on the same deed. . .
— 18 —
Nor is physical identity required. The judgment rendered
against one who has the le^al ca])acity to represent another in a
auit, is as conclusive and has the same authority .against the latter
as one rendered against him in, propria persona.
The difficulty lies in establishing in what ciises one [)erson
represents and is represented by another, in what cases a judg-
ment rendered against A estojjs B from discussing the same
question a second time, in what cases there is in law identity of
persons.
The pupil and the interdicted person are represented res-
pectively by their tutor and curator ; the wife, by lier husband
in those matters wherein he ha,s the exeicise of his wife's rigats of
action ; the heir who claims an estate (succession) declared
Vacant, by de curator appointed thereto ; the absentee, by the
envoy ^ en possesaion ; the institute by the curator to the subati-
tution.
There tjxists l)6'tween these persons a legal mandate, giving
to the one the authority to act for, and bind the other.
K(iually, judgmeHts rendered in suits to which a testamentary
executor is party, (within the limits of the powers conferred on
him by the law or the will,) have the authority oi res judicata a^
to those who ultimately take under the will
Again, the judgment rendered for or again.st one of several
credit<jrs who have a joint and several interest, (creanciers soli-
daires,) has the authority of res judicata m against his fellow
creditors ; — eacli has the right to sue alone for the debt and any
act done by one to preserve his recourse, benefits all. Each has
a tjK^it mandate to a(;t for the others. There can then be no rea.son
why the judgnn.Mit in a suit so brought should not be binding on
them ; and if judgment rendered in favor of one of the credi-
tors is final as between the debtor and the others, must not the
same rule be applied when the judgment is in favor of the debtor ?
Similarly, the judgment given in favor of, or against one of
several debtors jointly and severally obliged, rdt^biteurssolidaires,)
benefits arid binds his co-debtors. There exists between them a
tacit jnandate, gi^ ing to each the power and authority to represent
the others ; the action against one interrupts prescription against
the rest, and the demand of interest against one causes the interest
to run against his co-debtors. Each has the authority to pay and
ex.tinguish the debt and to adopt such proceedings as may free
them from the obligation of paying.
I
I
I I
1 i
• 1
2 I
— 19 —
So likewise judgmenU rendered for or against one of several
creditors or debtors of an indivisible obligation have the authority
of res judicata as to the remaining creditors or debtors res-
pectively.
The surety is represented hy the principal de>)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 <ijuioii/r, tlioy benefit tlie as-
signs, for w.;re it otherwise they would be uscjless to tbe former,
\u\ l)eing their (garaiit; vvarriiiitor. Tho;sc adverse to hiin du uot
Ijind Ids a.Hsigns.
Wluiii howev'.-v the aidciir, in the suit instituted ngaiust his
assign, intervenes as his vrarrantor ami takes up his defence
(1(3 fait et cause) ju<lgnients rendered for and against hiui are
binding on, and benefit the latter.
Creditors are re})rescnted by their debtor. As to chii-ogi-ar
})hary creditors no doid»t exists; — but it is urged that hy])othe-
cary creditors arc not represented by theii- debtor in suits which
refer to the right of ownership of the property mortgaged in
their favor. (.)n the other hand, resoluto jure dantis resoli'itur et
jih.^ (iccipieiitis^ ; their debtor, if in possession, and he alone, is the
lp,i)itt'me contnidicteur as to the right of ownership, and it M'ould
not unfrequently be requiring an impossibility, to compel one who
laid a claini to the property, to make all the hypothecary credi-
tors parties to tlie suit.
The hypothecary creditor is ri>]">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 <le niauvaine foi, qui no tire
" du titro de sa [)ossti.ssioi. aucune quality ni mandat expres on
" tacite pour representor en justice le vrai propri^taire ;
" Enfin, des jugements rendus en faveur de toutes personnea
" qui agissant au noni et dan.s I'interet d'un tiers, ont et^ aecep-
" tees par leur adver.saire comme legitimes contradicteurs en
" qualit(^ de tuteurs, adininistrateurs, gerants ou mandataires,
" quoique en rt^alitd elles fiisseut destituees de toute qualite et
" pouvoirs reguliers pour representer en justice les tiers que
" neanmoins, el les ont ete censees reprdsenter.
" Dans tous ces cas le tiers est autoris^ k se prdvaloir des
" jugements qui lui profitent tandis qu'on ne pent lui opposer le
" jugenient qui lui nuit. Et ce defaut de r^ciprocite tient a ce
" ce que son adversaire n'a qua sen prendre a lui luciue, d'avoir
" imprudemment choisi ou accepts pour contradicteur en justice
" une jjcrsoune qui ne pouvait I'y representer rdguliferement, de
" meme qu'en forinant une convention dont la nuUite est relative,
'• iJ a k se reprocher d'avoir contract^ avec un incapable. "
The exceptio rci judicatae not being d-ordre public, a party-
is free to renounce to the benefit thereof, which he may do ex-
l)re.ssly, or tacitly, by not setting it up in answer to the demand
made against him. And the Court cannot of its own motion sup-
ply the defence resulting therefrom.
Judgments of foreign tribunals have not the authority of
res judicuta in the Province of Quebec, with the exception of
those rendered in Upper Canada in suits, in which the service of
the process on the party sued, has been personal, O' a defence has
been made.
C. S. L. C. ch. 90, sec. 1, 2 and 4 enact :
" In any suit brought in Lower Canada upon a Foreign
" Judgment or Decree (that is to say upon any Judgment or De-
" cree not obtained in either Upper or Lower Canada,) any defence
" set up or tliat might have been set up to the original suit, may
" be pleaded to the suit on the Judgment or Decree.
" In any suit brought in Lower Canada on a Judgment or
" Decree obtained in Upper Canada, in a suit in which the ser-
" vice of process on the defendant or party sued has been persona
— 23 —
" or a defence lia« been made, no defence that might have been
" set up to the original suit, can be pleaded to that brought on
" the Judgment or Decree.
" In any suit brought in Lower Canarla on a Judgment or
" Decree obtained in Upper Canada, in a suit in which personal
" service was not obtained and in which no defence was made,
" any defence that might have been set up to the original suit,
" may be made to the suit in such Judgment or Decree. "
V
CRIMINAL LAW
\
A principle similar to that of the civil law, which has just
been considered, prevails in our criminal jurisprudence, and on it
are based the })leas of autrefois ncquit and (latrc/ois convict ,
this setting up a former conviction^ that, a former actj^uittal for
the same offence.
No man shall be put in jeopardy twice for the same offence
is the rule as exi)ressed by the oldci- writers. This, however,
means nothing more than that after judgment of acquittal or con-
viction has been pronounced l)y a com})etent court on the verdict of
a petty jury renderud on the niei'its of a case, the accused cannot
again be tried for the same offence nor ior any of which he
might have been found guilty imder the former indictment.
These pleas can only (with the exceptions herein after men-
tioned) be based on a judgment of acquittal or conviction on the
verdict of a petty jury. Ami therefore, if a man is arrested and dis-
charged by a magistrate, or is committed and no bill is prefeiTed
against him, or if it is thrown out by the grand jury, he is still
liable to be indicted for the sfime offtiuce. Again, if the verdict is
one of acquittal, it must be on an indictment valid in form and
substance, on which the accused could have been legally convicted ;
for if it was informal or defective, so that no legal judgment could
have been pronounced thereon against him, an acquittal is no bar
to a subsequent indictement. But though the indictment was
insufficient in point of law, yet if after verdict, judgment was
passed on the prisoner, until it is reversed, he cannot be indicted
again in respect of the same offence. If the indictemont was
valid whatever may have been tlie cause of the .vC(i[uittal, whe-
ther the misdirection of the judge in matter of law, or mistake of
the jury, or their refusal to obey the instriu?tions of the Court or
any other cause, no second indictment can be preferred for the
same offence.
' Analogous to the judgment on the verdict of a petty jury, is
the judgment of conviction or dismissal by one or more magis-
trates, in matters over which they have summary jurisdiction ;
such judgments bar any further proceedings for the same offence.
*}
.
— 25 —
The former acquittiil or conviction must have been for the
same offence, that is to say the prisoner must, on the former in-
dictmtjnt, have been acquitted or convicted of the offence with
which he is a second time charged, which must be either that
directly charj^ed in the first instance or one of which he might
legally have been found guilty on the first indictenient. If, had
the matter set out in the second indictment been proved at the
trial under the first, there could legally have been a conviction,
the second cannot be maintained, if there could not, it can.
lA.ll crimes in their relation one to another may be classed
under one of three heads ; either they have no element in common
in which case there can be no difficulty as to the application of
the rule under consideration, or they have common a element,
when they ruay be compared to one or other of the two follow-
ing figures.
In the former each successive circle, i'epi'esetiting a cfilne, in*
eludes the former, in the latter each has an element in common
and another distinct and sepjirate. Thus v. g. murder includes
manslaughter, which itself may include an assault with a felonious
intent and this includes a simple assault ; again one species of bur-
glary consists in the breaking and entering a dwelling house etc.,
and stealing therefrom ; if this stealing be from the person of an
inmate of the house and be accompanied vdth violence, it consti-
tutes robbery, the malefactor is guilty of the crime of burglary
and of that of robbery, each of which has the common element,
the one fraudulent appropriation, and that alone, the other con-
stituents of each crime being altogether different.
Whenever tlie loriiit;! cliaige, covers any part of the lat-
ter, provided always there could legally have been a convic-
tion as to such part, the pleas of autrefois acquit or autrefois
oonvict will lie ; and the jury can always find a prisoner guilty
— 2C —
of a charge less grave than that to be found in the iinlictnient, if
inoUided therein, with this exne})tion that at common law a con-
viction of a misdemeanor, cannot be had on an indictment for
felony.
On the other hand, whenever the former charge is inchided
in the latter, an acquittal will, while a conviction mav not bar
a second indictment therefor, that is, it will not if while the act
itself V g. an assault was the subject of the former charge, the con-
quence of the act, v. g. death resulting therefrom, is the sivtjject
of the latter.
At common law, as before mentioned, a prisoner cannot on
an indictment for felony be found guilty of a misdemeanour. But
by statute, on an indictment for wounding or inflicting grievous
bodily harm with a felonious intent, a conviction may be had for
unlawfully wounding or inflicting grievous bodily harm, 32,
33 Vic. c. 20 s. 19 ; on an indictment for unlawfully and mali-
ciously administering &c. poison &c., so as to endangoi- the life
of any person or so as thereby to inflict grievous bodily harm,
the jury may find the prisoner guilty of aaministering the same
with intent to injure, aggrieve or annoy, c. 20, sec. 23 ; on an in-
dictment for murder of a child, the prisoner may be convicted of
a secret disposition of the body to conceal its birth, c. 20, s. 61 ;
on an indictment for robbery, the jury may convict of an assault
with intent to rob, c. 21, s. 40 ; on an indictment for any felony
or misdemeanor the jury may convict of an attempt to commit the
same, c. 29, sec. 49 ; and on the trial of any j)erson for felony,
where the crime charged includes an assault against the person,
a verdict of guilty of assault may be rendered, c. 29, sec. 51.
In addition to these statutory enactments, ch, 29, sec. 50
provides that a person indicted and acquitted for a misdemeanour
which upon the trial appears to be a felony cannot afterwards be
indicted for the felony ; ch. 21, sec. 74, a person indicted and
ac(juitted for embezzlement cannot afterwards be indicted as for
a larceny, and if tried and acquitted for a larceny cannot af-
terwards be indicted as for embezzlement, upon evidence of
the same lacts ; ch. 29, sec. 100, if a man be indicted in any
nianner for receiving stolen goods, he cannot afterwards be
prosecuted again for the same oftence ; ch, 21, sec. 88, if a
man be indicted for obtaining money, &;c,, by ffilse preten-
ces he may be convicted of a larceny thereof, and no person
tried for such misdemeanour is liable to be afterwards prosecuted
for larceny on the same facts ; notwithstanding this proviso an
acquittal for larcenj' is no I ^v to an indictment for the same
offence charged as a false pretence.
- 27 —
An licquittal or conviction on an indictment as principal
is a bar to a second indictment as accessory before tht! fact for by
.23 V'ic.c. 72, s. 1 , whosoever sliall become an accessory before the fact
to any felony may bo ir\dicted, tried, convicted and punished in all
respects as if he were a j^rincipal felon.
An acquittal (>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 <lefence in a civil suit
V)ased on the same facts.
Ignorance of law is no excuse in the mouth of a priso-
ner charged with a crime ; but if the guilt or innocence of the
party depends on the fact, to be found by the jury, of his
having been or not when he did the act in same precise mental
condition, which is the gist of the offence, the jury in determining
the question of this mental condition, may take into consideration
that he was ignorant or misinformed on a matter of law.
To olaira exemption from criminal responsability under the
plea of insanity, a party must either be
1° Unconscious of the act itself.
2° Or being conscious of the act, be incapable of understan-
ding that its consequence is injurious,
3° Or although designing the act and its conRcquenoe, he
knows not that it is unlawful or wrong.
When to constitute an offence, an act mu.st be joined to a
particular intent, if without the intent, one, by drink, makes him-
self incapable of entertaining it, and so does the act, but never
then or afterwards yields the sanction of his will, he does not
become liable for the particular offence, one ingredient in which
is wanting.
^mmmmmm
f^"^^ "T"^U*^r^^'*; ■
— 30 —
To constitute an attempt there must be T an evil intent,
2° a conimencement of execution, 3° a possibility (actual, whether
known or unknown) of execution.— Hence presenting an unlojKlei
pi«tol is no assault.
Rape is the having unlawful and carnal knowledge of a
woman by force and without her consent— not " by force and
against her will. "
The obligation of the master of a ship to provide another in the
case mentioned in C. C. art. 2448, flows from an implied agency
between him and the shippers ; and the latter are responsib.:; tor
the excess of freight if any.
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