SECTION VI

TRANSITORY PROVISIONS.

22%. Prescriptions begun before the promulgation of this code, must be governed by the former

laws.

[Nevertheless prescrip-

lois antérieures.

[Néanmoins les prescriptions alors commen-|tions then begun, for cées, pour lesquelles il fau. | which, according to these drait, suivant ces lois, une|laws, an immemorial dudurée immémoriale ou|ration or one of x hundred

centenaire, s’accomplis-ent| years is required, are ac- » ?

sans égard à cette néces-

quired without respect to sité. ]

such necessity.]

* 21 Juriste. p. 92, C. d'appel, Montréal, 1876. Darling et Brown, Monk, Ramsay, Sanborn $ à Joan of money et Tessier, J. J. by a non-trader

to a commercial firm is not a ‘commercial matter,” or a debt of a

“comrae-cial nature,” and is not, therefore, prescriptible by the lapse of

either 6 or 5 years

Hecp :—I, That

That the prescription, under the Code, of 5 years against arrears of interest cannot be invoked in respect of a debt due prior to the coming into force of the Code,

l'his was an appeal from a Judgment, rendered by the Superier Court at Montreal (Beaudry J.) on the 19th of June, 1875, condemning the appellant to pay to the respondents, in their quality of executors of the last will and testament and codicils of the late George Templeton the sum of $1746.72 cy., besides interest and costs.

The action in the Cuurt below was brought by said George Templeton, as the universal legatee of his deceased wife, Isabella Darling, against the appellant and his brother Thomas Darling, to recover $1912.08 cy., besides interest from 31st December, 1865, under the following circumstances :—

The appellant and one Thomas Davidson were co-partners in trade under the name or firm of William Darling & Co., from the 1st of January, 1854, to the 20th of April, 1860, from whicn date William Darling continued the business alone under the same firm name until the 31st of December 1864, when said Thomas Darling became his partner.

The late Isabella Darling, on the 3rd of March, 1858, loaned to William Darling & Co., £120 sig. or $584 cy., and on the 14th cf April, 1860, the firm collected on her account from the estate of the late David Darling the sum of $800 cy., which she left in their hands by way of loan.

On the ?26th of March, 1862, William Darling & Co., rendered to said Isabella Darling the account current, japer 4 of the Record, in which they credit her with both of said amounts with interest, and bring down a balance in her favor as cash due her on the 31st December, 1861, of $81640.07 cy.

On the 6th December, 1865, William Darling & Co. rendered to sad Isabella Dasling the account cur:ent, paper à of the Record, in which the above balance of $1640.07 cy., is brought forward, and showing due to said Isabella Darliug as cash, on the 31s December, 1863, a balance or sum of $#1746.72 cy., and on the 31st December 1865, a balance or sum of 81912.08 cy., the difference between these two amounts being composed of interest.

The defendants pleaded separately. And the appellant fyled five pleas.

che first plea was limited to an attack on the wills set up in the declaration, and, as the validity ot the holograph will set up in the deciaration has been settled by the judgments

of the Superior Court and of this Court on the proceedings en faux, it is unnecessary further to allude to it.

The second plea iavoked a prescription of 5 years, and the thi:d plea a prescription of 6 years against the plaintiffs demand.

The fourth plea claimed compensation of plaintifPs demand by a counter claim of appellant, for the alleged board and lodging of his sister, the said Isabella Darling, from the month of September 1858, to the month of November, 1862, at the rate of 8300 per annum.

The fifth plea was the general issue. And issue was joined by general answers to the first four pleas and a replication to the last.

The evidence was given orally before’ the Judge who heard and decided the case, and, being of opinion that the respondents had proved their case, that the demand of the respondents was not subject to the prescription or limitation of either 5 6r 6 years, and that the plea of compensation was not sustained by the evidence, dismissed the said first four pleas and gave judgment in favor of the respondents, for the said balance or sum so shown to be &ue by the account current, paper 5 of the record, on the 31st December 1863, besides interest and costs.

Cross, Q. C., for the appellant, (besides denying that the evidence justified the judgment as rendered) contended at the argument, that the responc ats’ claim was “a commercial matter,” or a debt of “ a commercial pature, ” and was therefore prescribed by the lapse of 6 years, under the law as it existed before the Code, or by the lapse of 5 years under the Code, He also contended, that the arrears of interest had been prescribed under Art, 2250 of the Code.

Bethune, Q. C., for the respondents, on the other hand contended, on the authority of Wishaw vs. Gilmour et al : (th L. C, Jur., p. 319, and 15th L, C. Law Rep., p. 177), that the claim in question was not a “ commercial matter” or a debt of ‘“ a commercial naiute,” and was consequently only

prescriptible by the lapse of 30 years. And that the new law of prescription under the Code against arrears could not be ivvoked, as their prescription had been begun before the Code came into force, and in support cited Art. 2270 of the Code.

Monk, J. :—This was an appeal from a Judgment rendered by the Superior Court, at Montreal, condemning the defendants Darling to pay to the respondents, plaintiffs in the Court below, as executors of the last will and testament of the late George Templeton, the sum 0f$1746. The action was brought by George Templeton as the universal legatee of his late wife, Isabella Darling, against William Darling and his brother Thomas Darling, to recover 81912, being the amount of two sums, one of £129 stg. loaned to the firm of William Darling & Co., and the other for $800 collected from the estate of the late David Darling on her account, and which she left in the hards of the defendant as a loan. In 1862, the firm rendered to Isabella Darling an account showing that there was due her by them the sum of $1640, and on the 31st December, 1865, another account showing the amount due to be $1912, the difference being for accrued interest. The defendant (the present appellant) attacked the wills of Isabella Darling, but this Court had already declared the holograph will valid; it is unnecessary to refer particularly to that issue. Thomas Darling’'s plea was maintained and the action dismissed as regards him : it is needless, therefore, to refer to the case so far as he was concerned, There is no cross-appeal from that part of the judgment, and the Court moreover concurs in the view taken by the Court below. William Darling, (the present appellant) by his second plea invoked a prescription of five years, and by his third plea contended that the prescription of six years applied to the plaintiffs demand. His fourth plea was one of compensation for alleged board and lodging of Isabella Darling from September, 1858, to November, 1862, at the rate of $300 per annum. He also pleaded the

general issue, To the first four pleas, general answers were produced, and to the fifth, the general issue, a replication was filed. Upon consideration of the issues thus joined, and after a careful examination of the evidence of record we are unanimously of opinion that the judgment of the Court below should be confirmed. The accounts sued on are, in the opinion of this Court, proved by legal and sufficient evidence. The amount, therefore, for which judgment was pronounced against the appellant, was according, to the testimony, due by him; but the appellant by his plea of six years prescription, contended that the transaction was of a commercial character; and that the provision of chapter 67 of the Consolidated Statutes of Lower Canada, section I, applied to the respondent’s claim. We are of opinion that in this also the Court below judged rightly in holding that these transactions were not of a commercial nature. In the case of Wishaw and Gilmour, this Court held that a loan in all essential particulars similar to this was not a matter of a commercial nature. As to the plea of five years prescription, we are of opinion that it does not apply to the present case, —it was created by the Code which came into force in August 1866, a considerable time after the dates mentioned in the acconnt current, and the 2270 article of the Code. Prescriptions begun before the promulgation of this Code must be governed by the common law. We think, therefore, that this plea was rightly overruled. There remains the plea of compensation, The Court cannot refrain from expressing some surprise that this ground of defence should have been raised ic this c::e. These parties appear to be persons of fortune and gooû ;osition, and that a sister should be charged for board and lodging while on a visit to her brother or other relatives closely connected, seems utterly inadraissi”.., unless, indeed, there had been a contract or other circumstances justifying such a pretention provod in the case, and as nothing of the kind appears in the evidence,

ve Lorimier, B:8., vol, 21. 12

this Court, confirming what was held in the Court below overrules this plea also. The judgment was consequently confirmed.

Judgment of Superior Court confirmed.

21 Juriste, p. 169, C. Suprême 1877. Ÿ Heu: — 1. (Following Darling, app. et Broun, int. $ Gilmour et al. and Whishaw, 15th Lower Canada Law Reports, p. 177) That a loan by a nontrader to a commercial firm is not subject to the limitation of six years (before the Code), or to the prescription of five years (under the Code). 2. That the prescription of five years against arrears of interest, under Art. 2250 of the Civil Code, does dot apply to a debt, the prescription of which had commenced before the Code came into force. 3. That the entries in a marchant's books make complete proof against him.

4. That the transmission of an unsigned account in a letter signed by the debtor takes the case out of the statute Ch, 67 Consolidated Statutes of Lower Canada.

This was an appeal from the judgment of the Court of Queen’s Bench at Montreal, reported in the 21st Vol. of the Lower Canada Jurist, p. 92.

Cross, Q. C., for the appelant, submitted the following propositions and authorities :—

If the debt was a non-commercial one, the proof was insufficient, Art. 1233 C. C. And, if it was commercial, the proof was also insufficient, Art. 1235 C. C.

The debt was a commercial one, and was therefore barred, either by the limitation of six years under the statute Ch. 67 Consolidated Stat. of L. C. or by the prescription of 5 years under Art. 2260 of the C. C. Edict of King of France, 1563. Pozer & Meiklejohn, Stuart’s Rep. p. 122. Mor’agh vs. Munn, Stuart’s Rep. p. 44, Lalonde vs. Rolland, 10 L. C. Jur, p. 321, Bédarride. Jur, Com. pp. 116, 128, Bravard- Veyrières, Droit Coml, p. 52. Goujet & Merger, Vo. acte de Commerce, Nos. 9 and 12,1 Pardessus pp. 7, 44, 84, 86, 1 Namur, Cours de Droit Coml., p. 47, Orillard, Trib. de Com. p. 303.

The plea of prescription, moreover, belongs 10 the debtor, Art. 2208, C. C., and prescription could not be irterrupted by a new promise, Angell on limitations Ch. 20, No. 211, Bowker vs. Fenn, 15 L. C, Law Rep. p. 73, and a new law of prescription is retroactive, 2 Mailher de Chassat, Ret. des loix, p. 293 to p. 298.

As to the legacy under David Darling’s will, it could only be recovered from the universal legatee, Art. 2250, C. C.

Under any circumstances, the interest accrued since the code came into force was prescribed under Art. 919, C. C.

Martin, Q. C., followed, and submitted following propositions and authorities :

The first item in the accounts was with the firm, but the second one is due by David Darling's estate, and William Darling is not proved to have been present, or had knowledge of the entering of this item, in the accounts, and is not bound by such entry. 16 Weekly Rep. p. 958, re Farin L.

R. 5 Ch. Ap. p. 118. Gen. Pitts case p. 130. 2nd Williams Exrs. pp. 12, 43.

The case is distinguishable from Gilmour & Whishaw. The declarations in the cases were different, and the case of Whishaw went on demurrer, for want of allegation of debt being of a commercial nature,

The compound interest was not recoverabie, Art, 1078 C. C. Warring and Cunliffe, 1 Vesey, 98. Then the account not being signed could not take case out of the statute. And the letter, being of different date, could not be connected with the account, Clark & Alexander, 8 Jur. p. 496. And the entries in the books were not sufficient to take case out of the Statute, Bush & Martin, 2? H. & C, Exch. p. 311.

Bethune, Q. C., for respondents, contended, that treating case either as a commercial or a non-commercial ove, the entries in the appellant's book made complete proof against him. Pothier, Obligations, No, 757. Danty, traité de la Preuve, p. 551, Nos. 26 and 27, 2 Dickson on Er. p. 637 $ 1183

And the appelant could not by his own evidence make proof in his own favor.—Art. 251, Code of C. P.

Then as to character of debt it was clearly not commercial. It might be, and no doubt was commercial quoad the appelant, but was not so quoad Isabella Darling and the respondents, and consequently, the debt cannot be designated as a debt of a “ commercial nature, ” or as a “ commercial matter. ” And, not being so, neither the lim:tation of six years under Ch. 67 of Cons. Stat, of L. C., nor tha prescription of 5 years under the Code can apply. Waishaw vs. Gilmour et al., 6 L. C. Jurist p. 319, and Gilmour et al., and Whishaw, 15 L, C. Law Rep. p. 177. 1 Pardessus, Droit Coml., from p. 5 to 89 and specially Nos. 5, 20, 48, 49, 50, 52.

1 Goujet & Merger—Dict. de Droit Commercial.—Vo. Acte de Com. pp. 24 and 25, Nos. 1, 2, 4, 5, 6.

Devilleneuve & Massé—Dict. du Contentieux Commercial. —Vo. Acte de Com. p. 15, No. 153.

1 Dalloz—Dict. Vo. Acte de Com., p. 34, Nos. 4, 5, 6.

Bédarride—Des Commerçants, &c.. Nos. 26, 27, 246,247,248.

1 Bravard-Veyrières — Droit Coml., p. 51, and 6, Do. pp. 236, 237, 322.

Orillard—Compétence des Trib. Com., No. 245.

Encyclopédie de Droit, &c:, par Sebire et Carteret — Vo. Commerce, p. 560, Nos. 204 and 207.

Then if the debt be of a commercial nature, tbe sending of the last account current with the letter of the 6th November, 1865, took the case out of the statute,

As to Fenn & Bowker, it has no application to this case, and was, moreover, overruled by Walker & Sweet, 21 L. C. Jurist p. 29.

The Legacy of $800 was clearly recoverable from the appellant. He was the sole executor of David Darling and and when the legacy was nast due and payable under the will, he credited Isabella Darling with the amount therenf. in his books of account, and debited ‘he estate with the same,

lARTICLE 2270.

Art. 2250 of the Code could not be invoked, as against arrears of interest, inasmuch as the prescription of the debt had commenced prior to the passing of the Code,—Art. 2270 of the C. C.

Ricnanps, Cu. J :—

The principal item composing the original claim in this matter arose in this way.Isabella Darling, the testator, and Wm. Darling,the defendant,were brother and sister, Isabella residedwith her father in Scotland ; defendant resided in Montreal, Canada. Isabella had about £100 in money,which she wished invested. It appears from a letter written by William Darling to Isabella, dated 1st September, 1857, that Isabella contemplated visiting Canada to relieve Mary, William’s wife, in her household duty, who intented visiting Scotland. On the 4th of January, 1858, he wrote a letter, in answer to one from her, with reference to the £100. He said, “ your best way will be to keep it until I give you uotice that I ha invested the money ; I will advance the amount, and, after having done so, will ask you to pay the money over to my father on my account.” 1n the account current of William Darling & Co., of Montreal, with William Darling, Esquire, of Edinburgh, to 31st December, 1858, is entered February 27th, 1853, To cash from Isabella, £120.00 ; and in the account current (produced in the cause) of Miss Isabella Darling, in account interest at 6 per cent, to 31st December, 1858, with W. Darling & Co., is entered March 3rd, 1858. By cash to William Darling, senior, £120 sterling, A balance is struck at the expiration of the year and of every year thereafter, according to the accounts current produced, showing a balance (in which this £120 sterling and the interest thereon is included) on the 31st December, 1865, of $1,912.08. Under the will of David Darling, a brother of William and Isabella, made the 9th October, 1856, £200 Currency was devised to each of his sisters, Margaret, Grace and Isabella, Probate was granted to William Darling, sole executor of the will, on the 2nd ‘of June, 1857. In the ac-

count current already referred to showing the balance on 3lst of December, 1858, Isabella Darling is credited 14th April, 6 months interest on $800 at 124 per cent., Less & per cent., collection $51.74 ; a similar amount is credited October 14th of the same year ; in the account current for 1859, on the 14th April a credit entry of a similar amount is made and another entry on 14ti: of October of same amount, In the entries on the account current for 1860, on the 14th April, there is a credit of a like sum of 851.74, and on the same day D. Darling’s legacy of $800. These entries with interest at 6 per cent., making yearly rests, charging cash, goods, &c., are continued in the accounts current produced to the last one in which the balance is brought down to the 31st December 1865, as already mentioned, the amount due Miss Darling being $1,912.08. The account current filed, which is first in date, shows the account from March, 1858, to 31st December, 1861, is dated 26 March, 1862, and shows a balance of $1,640.07. That showing the state of theaccount from January, 1862, to 31st December, 1865, when the balance Of $1,962.08 is shown, 1s dated Montrea’ 6th December. 1865. They are transcripts from the entries 1n the books of W. Darling & Co. This suit was instituted on 5th October, 1871, and entered into Court on the 20th day of the same month. There was evidence offered with a view to showing that William Darling was not aware of the entries of the items in the books of the firm, and that the credit of the legacy of $800 to Isabella, and the charging the estate of David Darling with the amount of the legacy to Isabella in the books was not made on the authority of William Darling. The statement dated 26th March, 1862, Thomas Darling said was made up by him, and the items in the books were entered by him, and he was not aware that William knew what he had done, He (Thomas) was aware of the fact that Isabella was entitled to the legacy of $800. The entry as to cash paid William Darling, senior, and the two items of interest of 851.74 each, were in the books before he made

up the full statement of 26th March, 1862. The statement was made out because Isabella asked him to make a statement of what she termed her fortune, he at that time being the bookkeeper of the firm of William Darling & Co. The statement of account dated 6th December, 1865, was made out by Defendant’s bookkeeper, Ross, he did not know by whose directions, but he said he must have been directed to do so by some one. He did not recollect what he did with it after it was made out. The balance being made up to the 31st December, 1865, and as shown in that account, was $1,912.08 due Isabella. The plaintiff produced a letter signed by William Darling, dated “ Montreal, 6th November, 1865.” It contains following paragraph : “ I did not get your letter till there weeks after it was written, and Z now send you the Slalement of your account. There was an amount paid to Morgan that 1 do not know whether it shouli be charged to you or my father, and I have omitted it altogether from your account and from his. I will send you a corset if I can get one with the articles ordered in your letter from Mary, and which are not sent, because the expense would be more than they are worth. Perhaps there are some other artigles you wish : if not, I will send tnem by express to Orillia.” 1t was urged on behalf of the plaintiffs, that in this letter the month in the date was, hy mistake, writen November instead of December, and the statement of account referred to in it was the account made put by Ross, dated the 6th De. cember, 1865. Both William Darling and the bookkeeper, Ross, were very closely examined on this matter, and failed to give any satisfactory explanation as to what statement of account was referred to in William Darling's letter, If it was not this account, dated 6th December, 1865, that account undoubtedly existed in William Darling & Cos books—books connected with his business and to which he had constant access, and in it were charged against Isabella, from time to time, casb, goods, paid for furs, for box to pack piano, and very trifling amounts such as goods, T. Davidson,

Ve,

sales perce Lee sud gts ed 2 EU | ligs

22 cents. In the absence of any satisfactory explanation, the judges in the courts below were of opinion that the statement of account referred to and sent in that letter was the one dated 6th December, 1865. Isabella, of course, was well aware that she had an account with William Darling & Co. and the letter dated 6th November would warrant the inference that she had written for a statement of her account. He seems to apologize for not sending it before. He says : “ I did not get your letter till three weeks after it was written, and I now send you the statement of your account.” At this time Isabella was not living in Montreal, but somewhere near Orillia, in the Province Ontario. An attempt was made to show that these entries which were made in William Darling’s books, which remained there so long, showing a large balance due to Isabella, were entirely a mistake ; the first attempt to.put the matter right by cross entries and the magic powers of bookkeeping ” were made after this action was commenced. In the meantime Isabella Darling had married George Templeton, and in the marriage contract between them, dated 9th August, 1870, her property is referred to as wearing apparel, jewelry, trinkets, and paraphernalia, the sum of about two thousand four hundred dotlars in the hands of William Darling & Co., &c. William Darling was examined as to this contract. He says the amount to Isabella’'s credit on 1st January, 1871, was 82.535,10. He says he was spoken to about it, but he could not say if he ever saw the contract. In answer to the question if he had not informed Mr. Hunter, the Notary, who prepared the contract, that the sum of about $2,400, the property of Isabella Darling, was then in the hands of William Darling & Co., he answered, ‘‘ [ am quite satisfied I never gave Mr. Hunter, or anybody else any information of that kind. I may have stated that there was such an amount to the credit of Isabella Darling, but subject to all the adjustments I have stated in my previous evidence. As to the language that is used there, it is not my language.” He was

asked, is it not a fact that the information, such as it was, was derived from conversations between you and Mr. Hunter, the Notary ? He answered, “it may have been.” Isabella Darling, having married, died 13th May, 1871 ; this action was instituted on 5th October, 1875. George Templeton died 28th March, 1876, and the suit was continued by his executors. The fair inference is, that William Darling, about the time of his sister’s marriage, was aware that a considerable amount stood to her credit in the books of William Darling & Co. and no steps whatever were taken to rectify any errors, if they existed, until after the commencement of this action. As to the principal items of £120 sterling, equal to 8548, and the $800, the devise of David Darling, 1 fail to see how there are any errors to correct- Isabella had a little money that she wished invested in this country, which she contemplated visiting soon. Her brother intimated to her that he would be looking out for an investment ‘or her, and when he found one he would make it, and told her she could then pay the money to his father, on his account, Before he advised her as to an investment, she paid to his father, to his credit, the £120 sterling. That amount is charged in the books of William Darling, of Edinburg, to Wm. Darling & Co., Feb. 1,1858, as cash from Isabella : £120 is credited to her 3rd March, 1858, by cash paid to William Darling, sen., £120—$584—and this item is contained in the accounts rendered to Isabella, and down to the commencement of this suit. Isabella is made aware of the fact—has enquired as to the state of her account—has had statements rendered to her, and in the last one sent to her the balance brought down includes this item and the interest. Ithink we must assume, under the evidence, that William Darling knew what was in his own books, and how the account which he sent Isabella in his letter of the 6ôth November was made up, as I can come to no other conclusion than that the account of the 6th December was sent in the letter dated 6th November. William himself is as