McFarran v. Montreal Park & Island Railway Co.

J.-The appellant is a married woman, commune en biens, who brought this action for bodily injuries caused to her by the respondent, her husband being joined by the writ for the purpose of authorising her therein. The Court of Review (Taschereau,

Gill and Doherty JJ.) dismissed her action on the ground that:

OF jVOL XXX. The Court of Appeal concurred with the Court Review upon that point, but held that as the defendant had not taken the objection to the appellant's right of action by exception to the form, it could not avail itself of it.

They, however, dismissed the action on the facts of the case, holding that the respondent was not guilty of negligence.

We are of opinion that the plaintiff's appeal from that judgment should be dismissed- upon the ground that she had, as commune en biens, no right of action, and that the defendant was not obliged to plead it by exception to the form.

Upon the first point, that a married woman, commune en biens, has no right to such an action even with the authorization of her husband, it is not necessary, as we adopt without reserve the ruling of the two courts below thereupon, to cite any authorities. Decisions to the contrary may be found, but " on cite de pareils arrdis comme on signale des 6cueils. They are illustrations of the saying " toutes erreurs peuvent trouver des arrets et tous les paradoxes des autorites." An attempt has been made to distinguish between an ordinary debt and the damages resulting from a tort on the ground that the former exists before the judgment, and the latter are created by the judgment. But that is a fallacy which has received no countenance in the courts below, and rightly so. The amount of the sum due for a tort under Art. 1053 C. C. is only established by the judgment, but the liability for it exists from the date of the act that caused it; so much so, that it is from that date that the prescription runs. It is a debt due from the date of the tortious act. Then, even if it were the judgment that created the debt for a tort, yet the action to have that debt determined would belongto the hus- McF-an band.

An absolute want of legal right to the action may be invoked by the defendant at any stage of a cause.

The female plaintiff sues for a debt which, upon her own allegations, appears to be due to another. That cannot be called an informality, and Arts. 14, 116 and 119 the old Code of Procedure referred to in the formal judgment of the Court of Appeal have no application.

Her action could not be maintained even if the defendant had not appeared.

I need hardly say that this is not, as contended for by the appellant, one of these questions of procedure upon which this court does not as a general rule interfere with the rulings of the provincial courts. It is a pure question of law.

The appeal is dismissed with costs in the Court of

Review, the Court of Appeal and in this court against the appellant; each party paying his own costs in the

Superior Court.

Appeal dismissed with costs.

4 Hickson.