Majority
out, or some other antecedent fault, it is quite as definite as their specification in the same answer of the deceased's MONTREA own contributory negligence, which has not been ques- Tm tioned on this appeal. For this reason I am not disposed to rely upon this point as a sufficient ground for dissenting from the conclusion of my brother Rinfret that Crocket J. the appeal should be dismissed, particularly as I am fully in accord with his view that there was evidence, which the jury apparently believed, and which would warrant a finding that there was some negligence on the part of the motorman, which caused or materially contributed to cause the unfortunate accident.
Judgment of the Court
J.-This is an action in damages instituted by the wife, who is the respondent, against her husband, who is the appellant.
By means of an inscription in law the appellant prayed for the dismissal of the action on the ground that it was prescribed under the provisions either of article 2261 or of article 2262 of the Civil Code. The material provisions of those articles relied on by the appellant are as follows: By force of article 2267 C.C. in those cases
The Court of King's Bench, however, decided that the appellant's plea of prescription could not succeed because the parties were husband and wife, and they could not "prescribe against each other," as enacted in article 2233 of the Civil Code.
The ground upon which the appellant maintains that the judgment appealed from is wrong may be expressed as follows: he says that the limitations provided for by articles 2261 and 2262 C.C. are really not prescriptions, but properly speaking " d6chiances "; and that, according to the doctrine generally adopted in France, the exception as regards husband and wife contained in article 2233 C.C. does not operate in the case of " d6ch6ances." But the difficulty for the appellant is that, in the Code itself, these limitations are called prescriptions and they are dealt with as prescriptions.
They are to be found under the sub-title " Of Certain Short Prescriptions " and under the general title " Of Prescription "; and they come within the definition of prescription given in article 2183 C.C.
Prescription is the word used in article 2233 C.C. as well as in articles 2261, 2262 and 2267 C.C. According to the accepted rule of interpretation, the same word used throughout the same legislation should be construed as having the same meaning.
No distinction is made in article 2233 C.C.
In terms it is of general application.
We should not introduce an exception where the Code itself makes none; and we think article 2233 must be held to apply to all cases of prescription-both to the short and to the long prescriptions. Such is also the view of Mr. Mignault.
(Droit Civil Canadien, Volume 9, page 545).
He says:
Now, article 2267 C.C. enacts that the right of action is denied only " after the delay for prescription has expired"; and article 2233 C.C. provides that prescription does not run between husband and wife. It follows that, in this case, as prescription did not run, the right of action still exists; and we agree with the majority of the Court of King's Bench that the appellant's contention cannot prevail.
In this Court the appellant wished to raise the further point that, quite apart from any question of prescription, the respondent had no right of action in the present case, on the principle that no husband or wife is entitled to sue the other for an offence or a quasi-offence.
But, we do not think the point is open to the appellant. The parties are before the Court on an inscription in law.
Under the Code of Procedure (art. 192), the inscription in law " must contain all the grounds relied upon," and " no ground which is not therein alleged can be urged at the hearing."