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The Legal News.

VOL. VII. AUGUST 2, 1884.

No. 31.

one is struck with the loss sustained by the prohibition of seriatim opinions. On a subject of so much interest the judgments in the Court of Appeal and the House of Lords would have been doubly interesting."

EX PARTE ANNOUNCEMENTS.
A letter in a daily paper affords an illustra-

tion of the way in which ex parte announce-
ments work. We know nothing of the merits
of the case, but we take the following as a
sample of a very numerous class of proceed-

THE QUEEN v. DOUTRE. We publish this week the text of the decision of the Privy Council in this important case. The Law Journal (London) has the following remarks:-"In the appeal of Regina v. Doutre the Judicial Committee of the Privy Council decide some interesting pro-ings. fessional questions. It is laid down that when a client retains counsel for professional services, he retains him according to the custom and law of the bar of which he is a

member. For instance, if an Englishman happened to meet an English barrister or solicitor in Paris, and retained him to conduct his case in a French Court, the rights of the parties would be governed by English and not French law, the place of the contract and the place of the services rendered being irrelevant. Secondly, the Committee entertain 'serious doubts' whether in British Colonies in which the English common law prevails, the fee for advocacy due to a practitioner who is both barrister and solicitor can be considered an honorarium. It would have been as well if the Committee had been more positive on a subject which scarcely admits of doubt. The theory of honorarium belongs not to the service rendered, but to the person rendering it. As soon as that person can recover at all for professional services, he can recover for all professional services. It has never been questioned that solicitors can recover in this country for advocacy in the County Courts, or any other Court in which they have co-audience with barristers. Thirdly, the Committee decide that the rights of the Canadian lawyer against the Crown are the same as his rights against private clients, as to which it need only be said that it would be very strange if it were not so. In reading the formal judgment of the Cominittee, which in style and manner is half-way between the recitals of a French judgment or the note to a Scotch interlocutor and the judgment of an ordinary English Court of law, whether at home or abroad,

There was an announcement in the papers about an action for $100,000 damages. The writer of the letter referred to says:

"The fact that the same has been made public for several days, and as yet no writ has been served on those supposed to be most interested therein, has, to say the least, a very peculiar look about it." We have it from several informants that in many of these cases no writ is ever served. If the announcement in the papers fails to effect its purpose the case is dropped.

THE SALVATION ARMY IN CANADA. We noted some time ago a decision in England (5 L.N. 265) by which the Salvation Army were permitted to pursue their conquests undeterred by the fear of the police. In Ontario, the police magistrates took a different view (6 L.N. 233), but on appeal to a higher tribunal the verdict is in favour of unimpeded action. In Toronto, July 24, judgment was given at Osgoode Hall by Mr. Justice Rose, on an application to quash the conviction against Bella Nunn, of the Salvation Army, for beating a drum in the streets of London. The judgment was a lengthy one, and, after referring to technical objections and the arguments of counsel, it went on to say: In my opinion, if the beating of drums be an unusual noise or calculated to disturb, it may be prevented; otherwise not. It follows, if I am correct, that evidence must be given, and, if given for the crown, must be given for the prisoner. In this case evidence was refused on behalf of the prisoner. I am therefore of opinion that the conviction and commitment disclose no offence, that the by-law, so far as it seeks to prohibit the beating of drums simply,

without evidence of the noise being unusual sermon. But why should this new maxim or calculated to disturb, is ultra vires and in- | of English law apply to the nearest doctor valid, and that as evidence must be given it must also be received on the prisoner's behalf. The evidence does not, so far as it goes, show that the noise is unusual. It is quite the other way. The evidence does not even state that there was a beating of drums; it was playing a drum. Am I judicially to know that beating a drum and playing a drum are the same? The order must go for the prisoner's discharge."

CHEAP PHILANTHROPY. County Courts, whether in Canada or in England, are somewhat doubtful authority on the law. Est ubi peccat. We imagine that one of the slips is in a case noted in the columns of our contemporary the Law Journal (London). The person who has the honour of setting the ball of benevolence in motion should undoubtedly have the privilege of paying (and if he does not consider it a privilege, then it should be a legal obligation upon him). The Law Journal says: "The well-known humanity of the medical profession is put to a further test by a decision of the County Court judge at Exeter on Wednesday last. On a certain Sunday in May one of the congregation at a church in Exeter was taken suddenly ill. The Mayor, who was present, immediately sent a boy for a doctor. The doctor arrived, and having ministered to the patient's wants, sent in his bill for the modest sum of five shillings to the Mayor. The Mayor declined to pay, but suggested that if the patient did not settle the bill it should be sent in to the watch committee. This seemed to imply that the Mayor's benevolence was in his corporate and not his individual character, and the doctor, declining to take the suggestion, put the Mayor in the County Court. The County Court judge, however, held that 'merely sending for the nearest medical man is no contract.' This view, if sound, will encourage the practice of much cheap and ostentatious benevolence, and on hot Sundays the doctor who lives near the church will probably spend half his time running to and fro to cut the laces of young ladies who find it convenient to faint during the

only. Work and labour done at the defendant's request,' is a very ancient cause of action which might be supposed to extend to doctors. If a philanthropist finds a person disabled in the street and sends him home in a cab, he must pay the cabman. The good reputation of doctors for self-sacrifice is, however, as little to their worldly advantage as the bad name which may be given to a dog. The nearest doctor,' is so convenient and ready an institution, that people are apt to look upon him as a public servant, bound to respond gratuitously to the call of every one in need."

NOTES OF CASES.

PRIVY COUNCIL.

LONDON, July 12, 1884.

THE QUEEN V. DOUTRE.

Action for Professional Services-Locus contractus-Status of advocate-Action against the Crown.

An

A

advocate of the Province of Quebec, being by law and the custom of his profession entitled to recover payment for his professional work, those who engage his services must, in the absence of any stipulation to the con trary, expressed or implied, be held to have employed him upon the usual terms according to which such services are rendered. The contract is not dependent upon the law of the place where the services are to be given, but upon the status of the person employed. Quebec advocate has the same right to fees against the Crown as in other cases.

PER CURIAM. On the 1st of October, 1875, the Government of Canada addressed and sent to the respondent, Mr. Joseph Doutre, a letter, signed by Mr. Bernard, the Deputy Minister of Justice, in the following terms:

"Sir,-The Minister of Justice desires me to state that, the Government being desirous to retain counsel to act for them upon the proceedings in connection with the Fishery Commission to sit at Halifax under the Treaty of Washington, he will be glad to avail him self of your services as one of such counsel, in conjunction with Messrs. Samuel R. Thompson, Q.C., of St. John, New Brunswick,

and Robert L. Weatherbee, barrister, of Halifax. The Minister will be glad to know whether you are willing to act in that capacity, and in that case to place you in communication with the Department of Marine and Fisheries upon the subject."

Upon receipt of this letter the respondent wrote in reply that he would act as requested. The respondent is a member of the Montreal section of a body of legal practitioners incorporated by cap. 72 of the Consolidated Statutes of Lower Canada, under the title of "the Bar of Lower Canada." By the terms of the statute each member of the Bar is admitted to practise as "advocate, barrister, attorney, solicitor, and proctor at law," and no person except a member of the Bar duly admitted is entitled to conduct business in any of these capacities before the Courts of Lower Canada. Every member of the Bar must be registered in the district where he intends to practise, and he becomes answerable for his conduct to the council of that district, being liable, in case of his offending against professional rule or etiquette, to censure or to suspension from office for any period not exceeding a twelve month. It is not matter of dispute that, according to the law of Quebec, a member of the Bar is entitled, in the absence of special stipulation, to sue for and recover a quantum meruit in respect of professional services rendered by him, and that he may lawfully contract for any rate of remuneration which is not contra bonos mores, or in violation of the rules of the Bar. But it is asserted for the appellant that by the law of Ontario, the Province in which Ottawa, the seat of Government, is situated, a counsel cannot sue for his fees, and that he is under the same disability according to the law of Nova Scotia, where, according to Article 23 of the treaty, the Commission was to meet. In support of that contention, counsel for the appellant referred to the opinion of Chief Justice Harrison in M'Dougall v. Campbell (41 U.C.Q.B., 332) as correctly expressing the law of Ontario, but they mainly relied upon the proposition that in those provinces of the Dominion where the common law of England prevails, members of the Canadian Bar can neither have action for their fees nor make a valid agreement as to their remuneration,

unless that right has been conferred upon them by statute.

In these circumstances it was maintained that the right of the respondent to sue for his fees must depend either upon the law of Ottawa, the locus contractus, or upon the law of Nova Scotia, the locus solutionis, and that in neither case was any suit competent to him. Were it necessary to decide all the points thus taken by the appellant, questions of much nicety would arise. It is by no means clear either that Ottawa was the locus contractus, or that Nova Scotia was, in the strict sense, the locus solutionis. It is at least a plausible view of the case that the contract was completed in Quebec at the moment of time when the respondent posted his letter accepting the employment offered him by the Minister of Justice. On the other hand, although the Commission was to sit at Halifax, it is perfectly plain that the work expected of the respondent and actually performed by him was by no means confined to advocacy of the Dominion claims during the sitting of the Commission. His employment was not limited to what would in this country be considered the proper duties of a counsel, but embraced the work of an agent or solicitor. In point of fact, he is employed to prepare the case of the Dominion Government as well as to plead in their behalf. That such was the understanding of both parties may be inferred from the known professional status of the respondent, as well as from the fact that, in pursuance of the socalled retainer of the 1st of October, 1875, the respondent had papers sent him, and was engaged at Quebec during eighteen months, with occasional visits to Ottawa, in collecting and putting in shape materials for framing and supporting the claim which was to be urged before the commission. Then, as regards the other questions of law raised by the appellant, there is much difficulty. Their lordships are willing to assume that the law of England, so far as it concerns the right of the bar of England to sue or make agreement for payment of their fees, was rightly applied in the case of Kennedy v. Brown (13 C.B.N.S., 677), but they are not prepared to accept all the reasons which were assigned for that decision in the judgment of Chief Justice

Erle. It appears to them that the decision such an action on the ground that he was may be supported by usage and the peculiar employed as a member of the English Bar, constitution of the English Bar, without and, by necessary implication, upon the same attempting to rest it upon general considera- terms as to remuneration upon which memtions of public policy. Even if these con- bers of that bar are understood to practice. siderations were admitted, their lordships | The respondent is a member of the Quebec entertain serious doubts whether, in an Eng- section of the bar of Lower Canada, and it lish colony where the common law of Eng- was in that capacity that he was retained by land is in force, they could have any applica- the government as one of their counsel before tion to the case of a lawyer who is not a mere the Fisheries Commission. The respondent advocate or pleader, and who combines in has the rank of Queen's Counsel conferred his own person the various functions which upon him by patent, but that circumstance are exercised by legal practitioners of every does not appear to their lordships to affect class in England, all of whom, the bar alone the present case. It gave him a certain preexcepted, can recover their fees by an action cedence in a question with other members of at law. But it is unnecessary, in the view the bar, but it made no change upon the which their lordships take of this case, to duties and obligations incumbent on him as decide any of these questions which were a practising member of the bar, or upon his raised by the argument for the appellant. privileges as such, including the right to sue The right of the respondent to sue for remu- for his fees. The retaining letter of the 1st neration does not appear to them to depend of October, 1875, makes no mention of fees, either upon the law of the place where the and their lordships are accordingly of opinion employment was given, or upon the law of that it must be held to have been an implied the locality within which it was performed. condition of the employment thereby offered When any advocate or other skilled practi- that the respondent was to be remunerated tioner is by law and the custom of his pro- for his services upon the same terms on fession entitled to claim and recover payment which these services were rendered to clients for his professional work, those who engage in Quebec. The respondent was engaged and his services must, in the absence of any sti- undertook to go to Halifax as a Quebec pulation to the contrary, expressed or implied, counsel, subject to the same rule of his bar be held to have employed him upon the usual by which his conduct as a lawyer was reterms according to which such services are gulated in Quebec, and it would be a strange rendered. That is the implied condition of result if, retaining his status and performing every contract of employment which is silent his work as a member of the Quebec Bar, he as to remuneration, and it is dependent upon was nevertheless to be stripped of the privi the status and rights of the person employed, leges attaching to that status as soon as he and not upon the law of the place where entered the Province of Nova Scotia. A few his services are to be given, so long as he is weeks after his acceptance of the letter of the employed in his professional capacity. A 1st of October, 1875, the respondent received member of the bar in England, in accord- a retaining fee of $1,000, and thereafter the ance with the law of that country and the subject of counsel's remuneration does not rules of the profession to which he belongs, appear to have been considered until May, renders, and professes to render, services of a 1877, when it was discussed at Ottawa, in the purely honorary character. If in his pro- course of one or two personal interviews fessional capacity as an English barrister he between Sir A. Smith, Minister of Marine accepted a retainer to appear and plead be- and Fisheries in the government of Canada, fore commissioners or arbitrators in a foreign and the respondent. country, by whose law counsel practising in its regular courts were permitted to have suits for their fees, that would not give him a right of action for his honorarium. His client would have a conclusive defence to

The parties are widely at variance in regard to what actually passed on the occasion of these interviews. The allegation made by the respondent in his petition is:-That on the eve of his leaving his home for Halifax in

May, 1877, your petitioner made with the
Department of Marine and Fisheries a tem-
porary and provisional arrangement, under
which your petitioner should be paid $1,000
a month for current expenses while in Hali-
fax, leaving the final settlement of fees and
expenses to be arranged after the closing of
the Commission." On the other hand, it is
alleged in the defence filed for the appel-
lant:-"That the arrangement made with
the suppliant referred to in his petition, un-
der which he was to be paid $1,000 a month
while in Halifax, was not a temporary and
provisional arrangement as alleged, but that
the $1,000 a month, was, with other moneys
previously paid to the suppliant, to be ac-
cepted by him in full for his services and
expenses." The Commission met at Halifaxject was to fix the sums which were to be

derived by Sir A. Smith from his interviews
with the respondent in May, 1877, was that
the respondent had agreed to accept a re-
fresher of $1,000, and a payment of the same
amount monthly during the sittings of the
Commission, as in full of all claims for re-
muneration. But in order to alter the then
existing rights of the respondent, it is not
enough for the appellant to show that such
was the impression created in the mind of
Sir A. Smith; he must also prove that the
terms of the arrangement, as understood by
Sir A. Smith, were understood in the same
sense and were assented to by the respond-
ent.
But the respondent swears distinctly
that he understood and believed the arrange-
ment to be provisional merely; that its ob-

terms. In that state of the evidence, their lordships are unable to hold that the appellant has satisfied the onus incumbent on him of proving the new arrangement alleged in his defence. In the courts below, while the learned judges were equally divided as to the result of the case, there was a remarkable diversity of judicial opinion in re

on the 16th of June, and brought its labours paid him to account, leaving the balance to a close on the 23d of November, 1877, hav- payable to him for after-adjustment, and there ing sat, with occasional adjournments, for a are circumstances proved in the case which period of five months and seven days. In seem to establish beyond question that the addition to the retaining fee already men- respondent at the time sincerely entertained tioned, the respondent received a "refresher" that belief. Then the evidence of Mr. Whitof $1,000, and also six monthly payments of cher, the Commissioner of Fisheries for Ca$1,000 each during the sitting of the Com- nada, and the only third party present at mission, making a sum total of $8,000. Ac- these interviews, is not only very inconclucording to the respondent, these sums were sive, but what he does state, as to the lanpaid to him to account of his remuneration, guage actually used by the principal parties the precise amount of his fees and expenses to the arrangement then made, tends to supbeing left for adjustment subsequently. Ac-port the respondent's understanding of its cording to the appellant, they were paid to and received by the respondent as in full of his whole claim for fees and expenses. Both parties are agreed that in May, 1877, it was arranged that those sums (to the extent of $7,000) should be paid to the respondent, but they differ as to the footing upon which they were to be paid. Being of opinion that by the terms of his employment in 1875, the re-gard to the law applicable to its decision. spondent was entitled to a quantum meruit in respect of the services which might be required of him, their lordships think that it lies with the appellant to make out that the respondent's original right to remuneration was varied by subsequent agreement, and they have also come to the conclusion that the appellant has failed to establish the existence of such an agreement. The evidence upon this point, which need not be referred to in detail, is very unsatisfactory. It is abundantly plain that the impression honestly

The cause was tried before Mr. Justice Fournier, who, on the 12th of January, 1881, gave judgment in favour of the respondent, and fixed the amount of fees and expenses still remaining due to him in remuneration of his services at $8,000, and it is not maintained that the amount awarded by the learned judge is excessive, if the respondent has a right of action, and that right is not barred by the alleged arrangement of May, 1877. The cause was then taken by appeal before the Supreme Court of Canada, who gave their

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