forbid a barrister suing for his fee, they must exist whether the two branches of the profession be united or not. That is to say, the general practitioner cannot sue for his fee when acting as an advocate, but he may when acting as an attorney. But it is apparent at every line that their lordships were dealing with a subject about which they had forgotten anything they ever knew. The question is as old as the hills, and the difficulty is not one of "public policy" properly speaking, but of the nature of the service. There is no way of measuring the value of intellectual and moral services. This is equally true of the advice of a physician, the consolations of a priest and the advocacy of a lawyer. It has nothing to do with "usage or the peculiar constitution of the English Bar." It existed in Rome, and the law of France is not really very different from that of England. In England the action is peremptorily denied-in France the right of action is admitted and the remedy is practically refused. The whole question was well explained in the case of Devlin & Tumblety decided in 1858, 2 L. C. J. p. 182; and this case is not over-ruled by Amyot & Gugy.

R.

THE TIME FOR VACATION.

The Law Journal (London) seems to approve of the proposal that the Long Vacation in England shall begin on August 1, (and end on old Michaelmas Day, Oct. 11). This seems to be a reasonable suggestion, and if the time of the year were the only consideration we suppose there are few lawyers who would not welcome the change. Our own Vacation has just been made nine days earlier as well as nine days longer, beginning July 1. Our contemporary says the "abnormal heat" of the weather (80 deg. in the shade) supplies an argument in favour of the proposal. In this "margin of the frozen zone" (vide American Law Review), the thermometer as we write (Aug. 21) marks just 91 deg. in the shade and has stood nearly at that point during the best part of seven days; so that our friends of the British Association and tourists from across the border have an opportunity of solving their doubts as to whether the streams and lakes of the country

are ever clear of ice, or whether our broad lands are ever anything but " acres of snow."

NOTES OF CASES.

SUPERIOR COURT.

MONTREAL, Feb. 8, 1884.

Before TORRANCE, J.
MAJOR V. PARIS.
Procedure-Absentee-Power of attorney.

The production of a general authorization to
sue for the recovery of debts due to an
absentee is a sufficient compliance with C.C.
P. 120, 7. It is not necessary that the
attorneys ad litem be named therein.
The plaintiff, residing at Chicago, had
authorized, by a writing produced, two per-
sons named therein, to buy the book debts
of F. X. Major, of Montreal, and to sue for
The action was on
the recovery thereof.

notes in favor of said Major.

The defendant moved that the power of attorney be declared insufficient, contending that a special authorization to plaintiff's

attorneys was necessary.

The COURT held that the power of attorney to collect the debts of Major, which had the Code. been filed, was a sufficient compliance with

Motion rejected.

Trudel & Co. for plaintiff.
J. G. D'Amour for defendant.

SUPERIOR COURT.

MONTREAL, January 28, 1884.
Before RAINVILLE, J.

DORION V. DIETTE, & DIETTE, Opposant. Execution-Sale of moveables-Error in advertisement of sale.

An error in the advertisement of sale of moveables seized, giving a wrong number to the place of sale, does not annul the seizure, but merely makes it necessary to give other and correct notices of sale.

In an advertisement published in a newspaper of a sale of moveables, the number of the house where the sale was to take place was given incorrectly.

The defendant filed an opposition à fin d'annuler based on the error in the number.

The COURT held the notices to be irregular, but rejected that part of the opposition which asked that the sale be annulled; each party to pay his own costs.

G. A. Morrison for the plaintiff.
N. Durand for the opposant.

U. S. CIRCUIT COURT, N. D. ILL. UNITED STATES V. BANK OF MONTREAL. Liability of Bank of Montreal to pay Internal Revenue Tax-Power to establish branch Intention of Congress as to Banks of Foreign Countries.

1. As the Bank of Montreal can have no corporate existence here, but only transacts business by comity, its Chicago agency must, for the purposes of the internal revenue law, be considered the same as a private person engaged in the banking business, and pay the tax upon the amount of money it employs in its business, without regard to whether it is technically capital, that is, the fund contributed by its stockholders or not.

2. The power of the bank to establish a branch in Chicago, considered.

3. It could not have been the intention of Congress to allow banks of foreign countries to send their money here to be loaned and used by an agent for the profit and benefit of such banks, without subjecting them to the same burdens imposed by the law on domestic banks and bankers. —(Chicago Legal News.)

BLODGETT, J.-This is a suit to recover internal revenue taxes claimed to be due from defendant on the capital employed by defendant in the business of banking, from the 1st of Nov., 1871, to the 1st of December, 1879.

The defendant is a corporation created and existing under the laws of the Dominion of Canada, having its principal place of business in the city of Montreal. Its chartered capital is $12,000,000 fully paid up, and it has a reserve fund of $5,000,000, and average deposits of about $17,000,000.

On the first of November, 1871, it established a branch, or agency, in the city of Chicago,

which has been continued to the present time. At the time this branch or agency was established here, its manager was informed that the sum of $100,000 had been assigned to his agency as capital.

The business here has been the receiving of deposits, to be paid out on draft or check of the depositors, buying and selling of domestic and foreign exchange and the loaning of money on warehouse receipts for grain and provisions as collateral security, the deposits averaging about $2,000,000, and the profits on the business transacted here amounting to about $10,000,000.

The $100,000 assigned as capital has been treated and known upon the books of the agency as "fixed capital," and the internal revenue regularly paid thereon.

In June, 1881, an examination was had by F. J. Kinney, agent of the Internal Revenue Bureau, of the books and accounts of the agency, from which it was ascertained that a much larger amount of money had been used in the business of this agency than the $100,000 capital allotted to it, and he reported the amount due for tax on capital, under the second paragraph of section 3408, of the Revised Statutes, which imposes a tax of one twenty-fourth of one per cent per month upon the capital employed in banking, to be $83,773.56; after this report was received, an assessment was made and warrant issued for the collection of the portion of said tax which had accrued within two years, amounting to $24,543.88, and the amount of this assessment was paid under protest. This suit is now brought to recover the balance of $59,229.68 of the tax so ascertained to be due, or reported to be due by examiner Kinney, and which it is claimed accrued between the establishment of the bank December 1st, 1871, and December 1st, 1879. Several defences to the right to recover this money are interposed:

1st. That this Chicago agency is a branch of the parent bank in Montreal, and as such only liable to pay internal revenue taxes on the capital allotted to it by the parent bank, under the last clause of the third paragraph of Sec. 3408.

2nd. That the funds used and loaned here cannot be considered capital of this bank, as

they are sent here for temporary use, and liable to be withdrawn for use elsewhere, at the will of the home management.

3rd. That the funds used here are not a part of the capital of the parent bank, but are part of its surplus funds made up in part, at least,of the profits of this agency or branch. 4th. That most of the funds used by this branch are not employed in the business of banking, as defined in section 3407, Rev. Stat.

The assistant manager of this branch or agency, who was called as a witness on the trial, explained the course of business by saying, "when we see a chance to loan money here to good advantage, we notify the home office at Montreal, and they send it to us if they have it;" and his testimony shows that the average amount of money used for the first five months after this branch was established was over $400,000 per month; that for the next twelve months it was over $900,000 per month, and from the time the agency was established there was a steady increase in the business, so that the amount of money employed in the business for the twelve months ending the 31st of May, 1879, averaged $1,496,635 per month.

It will thus be seen that a large sum of money belonging to the parent bank was constantly employed in its business here; whether the profits made in the business here were retained and used here, or whether those profits were remitted to Montreal as fast as made, and the money to be used here was sent from Montreal as wanted, does not seem to me to be inaterial.

Section 3407 defines a bank and banker as follows: Section 3407.-"Every incorporated or other bank, and every person, firm or company, having a place of business where credits are opened by the deposit or collection of money or currency, subject to be paid or remitted upon draft, check, or order, or where money is advanced or loaned on stocks, bonds, bullion, bills of exchange, or promissory notes, or where stocks, bonds, bullion, bills of exchange, or promissory notes are received for discount or for sale, shall be regarded as a bank or as a banker." Certainly the business carried on by the defendant here must be held to be a banking

business within this definition. It had a "place of business" where credits were opened by the deposit of money subject to be paid or remitted upon draft, check or order, and where bills of exchange were issued and sold. The last clause of the 3rd paragraph of Sec. 3408 reads as follows:—

"In the case of banks with branches, the tax herein provided shall be assessed upon the circulation of each branch severally, and the amount of capital of each branch shall be considered to be the amount allotted to it."

It is contended that the defendant is a bank with branches within the meaning of this provision, and that only the sum of $100,000 capital was allotted to this branch by the parent bank.

At the time the internal revenue system was adopted, in 1861, there were no national or United States banks, but in several of the States there existed what were called State banks, with power to establish branches. As I now recall the facts from memory such banks existed in Ohio, Indiana, Missouri, and Iowa, and in the charters of these State banks there was a provision for establishing branches and allotting or determining the amount of the capital of such branches, and I am of opinion that this provision as to the taxation of branch banks had special reference to the then existing State banks and their branches, although the language used is comprehensive enough to apply to any future institutions of the same character, whether State or national.

The evident meaning and intent of the whole section 3408 was to assume that the active money employed by an incorporated bank was represented by its capital, and that the capital of a branch bank was the amount which was allotted to it, or which it was permitted to use; and the branch for the purpose of this tax on capital was deemed a separate entity.

Ordinarily what is known as the capital of a bank is the fund paid in by its shareholders on their capital stock, and this forms the basis upon which the business of the bank is conducted. The banks loan this money or use it in the discount of commercial paper in the purchase and sale of ex

If

change, or in the cases of bank of circulation, for the purpose of redeeming or securing their current notes. The profits of the business are, as a rule, after payment of expenses, distributed as dividends to shareholders. for any reason, all or part of the profits are retained by the bank, such retention may be only temporary, and they are liable to be paid out in dividends at any time, so as a basis of this internal revenue tax the paid up capital as a fixed fund was taken-assuming that, as a rule, the capital represented the moneys which the bank used in its business. In this case, however, we have a foreign bank with the control of a very large amount of money establishing an agency here for the loaning of its money. It conducts, through such agency, all the business of a bank; receives deposits, buys and sells exchange, discounts notes and bills and loans money. As the Bank of Montreal can have no corporate existence here, but only transacts business by comity, this agency must, I think, for the purposes of this law, be considered the same as a private person engaged in the banking business, and pay the tax upon the amount of money it employs in its business without regard to whether it is technically capital, that is, the fund contributed by its stockholders, or not. It sends its money here to be used in banking business, taking, perhaps, only that which it has accumulated from its home business, and which has not been divided, or leaving here the profits realised from the business here.

If the defendant has power under its charter to establish branches, that power would only authorize the establishment of branches within the jurisdiction of the sovereignty which created the corporation; that is, it cannot establish a branch with its corporate powers here, but the business it transacts here is more in the nature of an agency than that of a branch; and if any of the funds of the home corporation are sent here and used here in conducting a banking business, they should, in my opinion, pay the tax imposed under the second paragraph of Sec. 3408, as capital employed by a person, in the business of banking.

It could not have been the intention of Congress to allow banks of foreign countries

to send their money here to be loaned and used by an agent for the profit and benefit of such banks, without subjecting them to the same burdens imposed by the law on domestic banks and bankers.

It is further urged that the money used here by the defendant was not its capital, but was part of its surplus or reserve, and the decision of Mr. Justice Nelson in Mechanics and Farmers Bank v. Townsend, 5 Blatch. 156, is cited in support of this position. It may be sufficient to distinguish this case from the one at bar to say that the question then under consideration was the meaning of the word "capital" as used in paragraph one of Sec. 79 of the Internal Revenue Act of June 30, 1864, and had application to the amount to be paid for license to do business as a bank or banker; but it does not seem to me the rule given in that case is at all applicable to an agency like this of a foreign bank. If this defendant, being incorporated as a bank in a foreign country, had transacted all its business here, then its capital paid in and forming the basis of its business might be properly held to be the measure of its liability for this tax; but when such a corporation uses its surplus or reserve fund in conducting a banking business in this country, its capital for the purposes of this tax must, I think, be the amount of money it uses from month to month in the business here. It is said this surplus was only temporarily used here, but the proof shows how much was used each month, and the statute imposes a tax of one twentyfourth of one per cent per month on the money so used. If at the end of a month it had been withdrawn and returned to the defendant in Montreal, all further liability

would be at an end.

It is further urged that the business transacted by the defendant here was not a banking business as defined by Sec. 3407, because the money was not advanced or loaned on stocks, bonds, bullion, etc., but was loaned on the pledge of warehouse receipts for grain and provisions. The assistant manager for defendant says in his testimony," when we lent money, we took a note and the warehouse receipts as collateral. We rely wholly on these collaterals.”