justice, so well fitted to the needs of the community, would be revised and welded into the legislation of to-day. This would be a benefit in the end and would also justify any expenditure made on that account. (e) Finally, Revision. This is perhaps the most important of all suggested remedies. The statutory revision of the laws of the Dominion of Canada, and of many of the provinces, is long overdue. A revision every ten years should be made compulsory by statute. It is true that it costs money, but it is also true that its absence means costly litigation to the individual. The remedy lies within our own borders, and it is not only the privilege, but it is also the duty of every member of the legal profession to use every endeavour to bring about a revision of the statutes of Canada and of the provinces at the earliest possible moment. Any service which can be rendered in this capacity should not be passed by, and in the end something may be achieved which we all hope for, but which none of us seem able to bring about individually. Unless we do something ourselves to remedy the evils, how can we expect others to bring about the changes which we all admit are necessary and desirable? Edmonton, Canada. A. E. POPPLE. THE STATUTE OF FRAUDS IN THE PROVINCE OF QUEBEC. (Continued from p. 574, supra). II. In discussing the general aspect of what constitutes a memorandum in writing reference has been made to cases falling under the different paragraphs, but it is now opportune to consider each paragraph separately. 1. Upon any promise or acknowledgment whereby a debt is taken out of the operation of the law respecting the limitation of actions. This clause is virtually a textual reproduction of the first section of Lord Tenterden's Act, but it omits the proviso with regard to partial payments. That proviso was included in the statute that introduced this law into the Province of Quebec (C. S. L. C. c. 67), but was omitted by the commissioners who prepared the Civil Code. There has, consequently, arisen a controversy as to whether a partial payment is a promise or acknowledgment within the purview of this paragraph. 24 This question was fully discussed in Charest v. Murphy. In that case the action was based on a promissory note, and as more than five years had elapsed since maturity, the plaintiff alleged that prescription has been interrupted by two payments on account. Being examined on interrogatories the defendant admitted the partial payments but claimed that they were made on an open account, not on the note, and the majority of the Court decided that the admission was not complete, and that, as the clear and express terms of the Code must be given full effect, the proof of partial payments could not be made by witness. 243 Q. B. p. 376. Sir Alexander Lacoste, C.J., says: "Le paiement partiel constitue une promesse et une reconnaissance, il faut donc qu'il soit dans l'écrit signé par la partie." In Guay v. Guay 25 an admission is put on a higher plane than proof by witnesses, but as the admission in that case also was, in the opinion of the Court, incomplete, the action was dismissed. Where, however, the admission is complete, and even when the defendant has made default to answer interrogatories, it has been held that the article is satisfied, and the proof of the acknowledgment is sufficient: Bank of Ottawa v. McLean,20 Charrier v. St. Pierre."" It cannot, however, be said that the interpretation of a partial payment as a promise or acknowledgment has been finally accepted in this province. The Court of Appeals upholds the view that as the article does not distinguish between an express or a presumed acknowledgment, but applies generally to any acknowledgment, a partial payment, which is certainly an admission of the debt, is evidently within the purview of this paragraph. According to this view a plaintiff cannot be permitted to prove a fact from which may be inferred an acknowledgment, and the proof of such a fact is rendered useless, since from it the article precludes any conclusion for or against the parties. In a later case, however, Mr. Justice Langelier has reviewed the question, and frankly admitting that his own opinion, as expressed in his treatise on proof, has been changed, holds that a partial payment is something quite different from a mere acknowledgment, and may be proved by parol: Boulet v. Metayer.2 28 He points out that what the statute intended to prevent was the verbal proof of an express promise or acknowledgment. The statute requires 28 11 Q. B. 425. 28 R. J. Q. 28 S. C. 27. a writing to prove an agreement but not to prove a material fact, or facts that may be proven in part by material acts. And he concludes that a partial payment is neither a promise nor an acknowledgment interrupting prescription, but is an act performed with the aim of discharging the debt. The French authors make a similar distinction between an acknowledgment, and payment, although in their law both must be proved by a writing. 'La preuve de la reconnaissance interruptive de prescription ne peut se faire que d'après les règles du Droit Commun. Ainsi le créancier qui prétend que la prescription a été interrompue soit par une reconnaissance simplement verbale, soit par des palements d'intérêts ou d'arrérages, n'est pas admis à faire la preuve de ces faits par témoins.' (II. Aubry & Rau, p. 236). No appeal was entered against the judgment in Boulet v. Metayer, and as the question does not appear to have been presented to our Courts since then (1903), it is possible that the profession is disposed to accept the new view of partial payments. 'The acknowledgment of the debt may be made either by the debtor or by his agent, but if the acknowledgment is not in writing, the testimony of the agent will not, after the termination of his mandate, avail as an admission: Pinsonnault v. Desjardins.2o As article 1235 is an exception to the general rule that verbal evidence is admissible in commercial matters, this paragraph must be strictly interpreted, and it has accordingly been held that an agreement to suspend peremption of a suit in a commercial matter may be proved by witnesses: Hendershot v. Macfarlane.30 II. "Upon any promise or ratification made by a person of the age of majority, of any obligation contracted during his minority." As Mr. Mignault points out in his work on the Civil Code, this clause does not apply to debts contracted in due course of business by a minor who is a trader, for he has in that connection full capacity. There 29 3 L. N. 29. 30 R. J. Q. 24 S. C. 51. does not appear to be any jurisprudence in the Province of Quebec on a promise or ratification of this character, but it has been held that the tutor cannot by an admission bind his pupil: Nash v. Jodoin.31 31 In that case the tutor signed a promissory note ostensibly in payment of an account for work done. on property belonging to his pupil, Mr. Justice Doherty held that he had no power to create an obligation binding on the minors by the mere acknowledgment of an indebtedness on their part made by him. III. Upon any representation or assurance in favour of a person to enable him to obtain credit, money or goods thereupon. The Statute of Frauds, it will be seen, covers only a special promise to answer for the debt, default or miscarriage of another, and as it was possible for the plaintiff to evade this enactment by basing his action upon a tort or wrong done him by some false or fraudulent representation made by the defendant in order to induce him to contract with another person, Lord Tenterden's Act extended the restriction to any representation or assurance. (Taylor on Evidence, par. 1085). The Code has simplified the phraseology, but preserved the full meaning and effect of this amendment, which was indeed textually introduced into this province by the Act 10-11 Vict. c. 11, The first distinction to be noticed in connection with the question of guarantee is, as Taylor says, (Evidence, par. 1030), whether the guarantee or promise is original or collateral. If the promise be a straight guarantee to pay, or to insure the payment of, a debt of another already incurred the Act applies, and no action can be maintained unless there is a memorandum in writing; but if the promise be a direct and original one to pay for goods which are supplied to another, it would seem that no writing is necessary. The question may always be said to be, to whom did the seller give, and to whom was he authorized to give, credit, and in determining this question 31 R. J. Q. 15 S. C. 70. |