caused by negligence, but by the ordinary and normal use of its railway, and that Art. 356 of the Code does not on its true construction contemplate the liability of a railway company acting within its statutory powers. Malicious Prosecution. “In the present day, and according to our present law, the bringing of an ordinary action, however maliciously, and however great the want of reasonable and probable cause, will not support a subsequent action for malicious prosecution." (Per Bowen, L.J., Quartz Hill Mining Co. v. Eyre, 11 Q. B. D. 674, p. 690.) The reasons generally given for this rule are: There are three sorts of damage any one of which will support an action for malicious prosecution, namely, (1) damage to a man's fame, as if the matter whereof he is accused be scandalous; (2) damage done to the person, as where a man is put in danger to lose his life or limb, or liberty; (3) the third sort of damage which will support such an action is damage to a man's property, as where he is forced to expend' his money in necessary charges to acquit himself of the crime of which he is accused. (Saville v. Roberts, 1 Raym. 374.) Now the bringing of an ordinary action maliciously and without reasonable or probable cause does not necessarily involve any one of these three heads of damage so as to enable the defendant to bring a subsequent action against the plaintiff. At the trial his fame will be cleared, if he deserves to be; the bringing of the action involves no injury to his person; nor, thirdly, is there necessarily any damage to his property, as if he succeeds he will be awarded the costs of the action, if he deserves them. Sir Frederick Pollock has pointed out that the third reason by which the costs awarded in an action are a sufficient solatium for injury to the pocket is an amiable fiction; he assigns as a more logical reason for the rule, the necessity ut sit finis litium. There are exceptions to this general rule of a limited character, which need not be specified here. But in the Province of Quebec no such rule is recognized. In the case of Montreal Street R. W. Co. v. Rit chie, 16 S. C. R. 625, Mr. Justice Strong states that "by the law of the Province of Quebec an action can be maintained by a defendant, who has succeeded in a civil action, against one who maliciously and without reasonable and probable cause, or, in other words, against one who having no real interest has, in bad faith and with the malicious intention of harassing his adversary, unsuccessfully prosecuted the action. "The law of the Province of Quebec in this respect differs from the law of England, according to which such an action will not lie, unless there has been by means of civil process some unwarrantable interference with the person or property of the party defendant in the original action." (pp. 629-630.) Contributory Negligence. Another well known and well settled common law doctrine is not altogether in harmony with Arts. 1053-4 of the Civil Code, and is therefore not recognized in the Province of Quebec, that of contributory negligence, according to which a plaintiff cannot recover damages if but for his own negligence or that of the person who represents him, the accident would not have happened. In the Province of Quebec contributory negligence may or may not be a bar to recovery according to the facts proved. In the case of Cardieux v. Canadian Pacific R. W. Co., M. L. R. 3 Q. B. p. 315, the late Chief Justice Dorion said: "I am of opinion that when the two parties are in fault the damages should be divided between them. Nevertheless this rule has never been adopted in this country, although I think it is a better rule." The same Judge in the case of Desroches v. Gauthier, 5 L. N. p. 404, speaking of the English doctrine of contributory negligence, says: "Such a rule does not exist in our law." This has since been held in many cases, of which the following may be mentioned: "Under our law the person who suffers damage from an accident does not lose his recourse against the auteur of that accident because his own negligence contributed to it. The Court will inquire what is the primary cause, and if they find that to be the negligence of the defendant they will hold him responsible, at the same time taking account of the plaintiff's own negligence and holding him responsible for his part in the damages." (Jacquemin v. Montreal Street R. W. Co., Q. R. 11 S. C. 419.) Judge Routhier in the case of Fleury v. Quebec District R. W. Co., Q. R. 13 S. C. 268, says: "Common fault (la faute commune) can sometimes be sufficient to dismiss an action, but in the greater number of cases of damages it is only a cause of mitigation of damages. The doctrine of contributory negligence obtaining in England and the United States is not applicable here." In that case a considerable reduction in the amount of damages proved was allowed in consideration of the plaintiff's own negligence. In a very recent case, Fortier v. Lauzier, Q. R. 14 S. C. 359. Judge Larue puts the doctrine of the Quebec law thus:"If the defendant is alone in fault he is responsible for the whole of the damages, if both parties have been imprudent, that is to say, guilty of contributory negligence, compensation takes place, and finally, if all the imprudence has been on the side of the plaintiff, he is alone responsible." In short, the doctrine of the civil law is, that every one is responsible for his own fault, and the mere fact that someone else shares in the responsibility, even if that person be the plaintiff, does not relieve the defendant from responsibility for his own wrong-doing. FOREIGN JUDGMENTS. by the Courts of Quebec deserve notice. Some points as to the recognition of foreign judgments By Art. 1220 of the Civil Code "exemplifications of any judgment or other judicial proceeding of any Court out of Lower Canada, under the seal of such Court, or under the signature of the officer having the legal custody of such judgment or other judicial proceeding, make primâ facie proof of the contents thereof." By Art. 209 of the Code of Civil Procedure it is provided that the denial of such a judgment or proceeding "must be accompanied with the giving of security for the costs of the commission required to obtain the proof of such document.” A denial in the pleading without such security has no legal effect. (Dunbar v. Almour, M. L. R. 3 S. C. 142.) "Any defence which was or might have been set up to the original action may be pleaded in an action on a judgment rendered out of Canada." (Code C. P., 210.) Accordingly it has been held that a judgment of the Vermont Courts is not a res judicata (chose jugée) in Quebec, and that the discussion can be reopened on the matters which formed the basis of this judgment, and that "although Art. 210 speaks only of a defence to an action brought on a foreign judgment, yet it would seem that the same principle would apply when the foreign judgment is set up as a bar to an action in which the same matters are sought to be reviewed." Such is the jurisprudence in France. (Rice v. Holmes, Q. R. 16 S. C. 492.) Mr. Justice Andrews, in refusing to recognize a plea of lis pendens between the same parties in the State of New York, said: "This is a reenactment of Art. 121 of the Ordinance of 1629. Its existence as a rule of law renders a foreign judgment comparatively valueless here, and adds a reason. which does not exist in England, for refusing to allow a foreign judgment to stay one in this Province: for in England a foreign judgment is res judicata, if a final one, and obtained without fraud." (Howard-Gurney Co. v. King, Q. R. 5 S. C. p. 182.) But the provisions of Art. 210 could not, in all probability, be invoked by a plaintiff who, after taking unsuccessful proceedings in a foreign Court, should endeavour to maintain another suit for the same cause in the Province of Quebec; if the defendant pleaded the foreign judgment as a bar to the action, the plaintiff would probably not be permitted to reopen the controversy. (Lafleur, p. 244.) In an action brought under such circumstances in the Courts of Nova Scotia, where the law is similar to Art. 210, King, J., in giving judgment upon an appeal taken to the Supreme Court of Canada, said: "This is an enactment available only by persons domiciled in Nova Scotia. It is intended as a weapon of defence, and not of offence. It is not lightly to be supposed that the Legislature, while leaving the foreign. subject to be proceeded against in Nova Scotia upon the judgment obtained abroad by the person of Nova Scotia domicile, intended that the latter should be protected against the consequences of his own unsuccessful incursions into the foreign. field. I think the Act cannot be invoked for the appellant." (Law v. Hansen, 25 S. C. R. 69.) In the Province of Ontario the English rule is in force. There being no express provision on the subject, it has been held that the only prescription which can be applied to a foreign judgment in Quebec is thirty years, which is the usual period for prescription in that Province. (Art. 2242, King v. Demers, 15 L. C. Jur. 129.) This CIVIL DEATH. expression denotes the loss of all civil rights and status, and is used in contrast with natural death. "There is a death in deed (natural death) and there is a civil death, or death in law, mors civilis and mors naturalis." (Co. Litt. 132 a.) It arose originally (1) by taking monastic vows; (2) by abjuring the realm; (3) by conviction and attainder for trea son or felony. "A person under these circumstances was said to be civilly dead, civiliter mortuus, and his estate descended to his heirs as it would have done in the event of his natural death." (Am.. & Eng. Enc. VI. 64.) of the law, and to kill him, without warrant of law, is murBut though civilly dead, he was yet under the protection der." (Platner v. Sherwood, 6 Johns Ch. (N. Y.) 130; Commonwealth v. Bowen, 13 Mass. 356. The only part of this doctrine that survives in England is in regard to a felon sent to penal servitude. By the Forfeitures Act, 1870 (33 & 34 V. c. 23, s. 1) his liberty and civil rights are suspended till he receives a pardon or has served his sentence; in the meantime his property is vested in an administrator for his benefit. (Eng. Encyc. Vol. III. pp. 35, 36.) |