views expressed by the two Lower Canadian members of the Supreme Court no doubt irresistibly led, and hence the fact that the Privy Council have not passed upon the different points which have been so hotly contested of late years in the Province of Quebec. The real importance of the decision in England, however, lies in the fact that if Mr. Doutre had come before our own Court of Appeal he must have lost his case, and yet the decisions in Larue & Loranger, and similar cases, were cited in the Supreme Court as if they favoured the right of counsel in such a case. The confusion comes from this, that our Lower Canadian Courts admit the right of action of counsel, but they admit it not as the rule, but as the exception. The fallacy was to suppose that our Courts admitted the right absolutely, or at any rate admitted it in a case such as Mr. Doutre's. been influenced, far more than they were aware of, by the feeling so touchingly referred to by Chief Justice Harrison in McDougall & Campbell-a weakness to be gloried in as strength by those whose standard of professional duty, if no longer reconcilable with the law as it stands, is at any rate a high and noble one. What I regret is that we should have been deprived-by a misunderstanding as it were-of a carefully prepared exposé of the law and the jurisprudence of Lower Canada on the subject of the action of counsel for their fees, an exposé which could not but have been interesting, since it must have retraced the numerous and devious courses we have had to go through before reaching the present satisfactory position. E. B. A JUDGE'S GHOST STORY. article on "Visible Apparitions," by Messrs. The following is the account given in the Edmund Gurney and Frederick W. H. Myers, in the July number of the Nineteenth Century, referred to ante, p. 258:— One further case we received from Sir Edmund Hornby, late Chief Judge of the Supreme Consular Court of China and Japan, who describes himself as "a lawyer by education, family, and tradition, wanting in imafirst narrates how it was his habit at Shanggination, and no believer in miracles." hai to allow reporters to come to his house in the evening to get his written judgments for the next day's paper. Не Our Court of Appeal holds, no doubt, that professional services may pass beyond the honorarium stage, but the only contract so far admitted has been that in which everything has been expressed, and the amount of the fee specially defined by the parties themselves. In particular they have rejected not only indefinite promises of a fee in addition to the amount allowed by the Tariff, but they have considered as prohibited a contract where the fee was to be paid contingently and out of the amount to be recovered. In fact the rule has been to place professional opportunity, especially one editor of an evenThey generally availed themselves of the men at the mercy, or, what is more euphoni-ing paper. On the day when the event ous, make them dependent upon the generosity of their clients. It is true that in a recent case the correctness of the report in Larue & Loranger has been questioned, but the remarks of the judges in Dugdale & The City, as well as in Dorion & Brown, leave no doubt as to the opinion of the majority in the Court of Appeal. occurred, in 1875 or 1876, I went to my study an hour or two after dinner, and wrote out my judgment. It was then about half past 11. I rang for the butler, gave him the envelope, and told him to give it to the reporter who should call for it. I was in bed before 12. I am a very light sleeper, and my I had gone to sleep, wife a very heavy one. when I was awakened by hearing a tap at the study door, but thinking it might be the As to the case of Devlin & The City, it butler, I turned over with the view of getting never was reported, but if the judgment itself to sleep again. Before I did so, I heard a tap at my bedroom door. Still thinking it might is referred to, it will be found that the conbe the butler, who might have something to sidérant immediately preceding that quoted say, I said, "Come in." The door opened, by Taschereau, J., in the Supreme Court, and, to my surprise, in walked Mr. You have mistaken the rests upon the report of the Finance Com- sat up and said, mittee that Mr. Devlin should receive at door, but the butler has the judgment, so go and get it." Instead of leaving the room he least $2,500. came to the foot edge of the bed. I said, The truth is that some of our judges have "Mr. -, you forget yourself. Have the good Ι in, and thought she saw him writing, but she -V. ness to walk out directly. This is rather an abuse of my favor." He looked deadly pale, but was dressed in his usual dress, and was certainly quite sober, and said, "I know I am guilty of an unwarrantable intrusion, but finding that you were not in your study I have ventured to come here." I was losing my temper, but something in the man's manner disinclined me to jump out of bed to eject him by force. So I said, simply, "This is too bad, really; pray leave the room at once." Instead of doing so he put one hand on the footrail and gently, as if in great pain, sat down on the foot of the bed. I glanced at the clock and saw that it was about twenty "The Chief Judge gave judgment this minutes past one. I said, "The butler has morning in this case to the following effect" had the judgment since half-past eleven; go-and then followed a few lines of undeciph and get it." He said, "Pray forgive me; if erable shorthand. you knew all the circumstances you would. Time presses. Pray give me a précis of your judgment, and I will take a note in my book of it," drawing his reporter's book out of his breast pocket. I said, "I will do nothing of the kind. Go downstairs, find the butler, and don't disturb me-you will wake my wife; otherwise I shall have to put you out." He slightly moved his hand. I said, "Who let you in?" He answered, "No one." ""Confound it," I said, "what the devil do you mean? Are you drunk?" He replied, quietly, "No, and never shall be again; but I pray your lordship give me your decision, for my time is short." I said, "You don't seem to care about my time, and this is the last time I shall ever allow a reporter in my house." He stopped me short, saying, "This is the last time I shall ever see you anywhere." Well, fearful that this commotion might arouse and frighten my wife, I shortly gave him the gist of my judgment in as few words as I could. He seemed to be taking it down in shorthand; it might have taken two or three minutes. When I finished, he rose, thanked me for excusing his intrusion and for the consideration I had always shown him and his colleagues, opened the door, and went away. I looked at the clock; it was on the stroke of half-past one. (Lady Hornby now awoke, thinking she had heard talking; and her husband told her what had happened, and repeated the account when dressing next morning. I went to the court a little before 10. The usher came into my room to robe me, when he said: "A sad thing happened last night, sir. Poor was found dead in his room." I said, "Bless my soul! dear me! What did he die of, and when?" "Well, sir, it appears he went up to his room as usual at 10 to work at his papers. His wife went up about 12 to ask him when he would be ready for bed. He said: 'I have only the Judge's judgment to get ready, then I have finished.' As he did not come, she went up again, about a quarter to 1, to his room and peeped | I sent for the magistrate who would act as coroner, and desired him to examine Mr. -'s wife and servants as to whether Mr. - had left his home, or could possibly have left it without their knowledge, between eleven and one on the previous night. The result of the inquest showed he died of some form of heart disease, and had not, and could not, have left the house without the knowledge of at least his wife, if not his servants. Not wishing to air my "spiritual experience" for the benefit of the press or the public, I keep the matter at the time to myself, only mentioning it to my Puisné Judge and to one or two friends; but when I got home I asked my wife to tell me as nearly as she could remember what I had said to her during the night, and I made a brief note of her replies and of the facts. As I said then, so I say now-I was not asleep, but wide awake. After a lapse of nine years my memory is quite clear on the subject. I have not the least doubt I saw the man-have not the least doubt that the conversation took place between us. I may add that I examined the butler in the morning-who had given me back the MS. in the envelope when I went to the court after breakfast-as to whether he had locked the door as usual, and if any one could have got in. He said that he had done everything as usual, adding that no one could have got in, even if he had not locked the door, as there was no handle outside-which there was not. I examined the coolies and other servants, who all said they opened the door as usual that morning-turned the key and undid the chains, and I have no doubt they spoke the truth. The servants' apartments were separated from the house, but communicated with by a gallery at the back, some distance from the entrance-hall. The reporter's residence was about a mile and a quarter from where I lived, and his infirmities prevented him from walking any distance except slowly; in fact, he almost iuvariably drove. The Legal News. VOL. VII. AUGUST 30, 1884. The procedure is to be that which has been followed hitherto in applications for judicial separation. No special court is created, but No. 35. the cases are to be tried in the ordinary civil courts by three judges without a jury. Provision is made for an attempt at reconciliation. After a petition has been filed, the parties will be summoned before the presiding judge, who will endeavour to settle the conjugal difficulty, if the case admits of it, and he may even adjourn the hearing for a twelve month where it seems desirable. The provisions of the Act are in some respects so novel and extraordinary that it cannot fail to have an important influence upon society. THE FRENCH DIVORCE ACT. The new law, as our readers may have observed, has provided the courts with the semblance of a vast amount of work. Within a fortnight after the measure became law several thousand suits were set down on the cause list in Paris alone. The explanation of this is the fact that all couples who have been judicially separated for more than three years, can now have the decree made absolute as a divorce on a simple application from either of them. As there have been over a hundred thousand judicial separations in France during the last twenty years it is obvious that the number of parties qualified for divorce must be very large, but we presume that these cases will be disposed of without much delay or difficulty. The law itself differs essentially from that which prevails in England. It goes even further than our own law, and makes it easier to obtain a divorce in France than it is to obtain a judicial separation in this Province. One of the leading features is that the infidelity of the husband is put on the same footing as the misbehaviour of the wife. Further, if a husband or wife is sentenced to a peine infamante, e. g., penal servitude or transportation,the consort has simply to prove the conviction in order to obtain a divorce. Besides the ordinary cases of cruelty, habitual drunkenness is now a ground of divorce. So, too, a wife has her remedy where her husband has been guilty of disgraceful conduct, such as cheating at cards, or the more vulgar offence of theft. But, as we have remarked, the law goes even further, and enacts that the fact of a husband or wife "habitually insulting the relatives of the other" is sufficient to support the claim of the aggrieved consort to a divorce. This clause, it is said, has been styled by the Parisians a law "for the protection of mothers-in-law," and it certainly makes that dreaded relative omnipotent to disturb and separate couples at her pleasure. A QUESTION OF COSTS. A case of Ginger v. Beale is reported in the Times (London) of Aug. 12, which exceeds almost anything we have heard in connection with fights for costs. Judgment was obtained against three parties on a bill of exchange. The plaintiff made a claim against Beale, one of them, for £5 10s. for costs, and the amount was disputed. The matter was carried in succession to the Master, then to a Judge in Chambers, then to another Judge in Chambers, and finally the Taxing Master struck off 5s. 8d. Mr. Beale's counsel then applied in the Queen's Bench Division for his costs, as he had succeeded on taxation. Questions of costs are proverbially perplexing, but the following extract from the report shows the spirit in which the English Court dealt with the difficulty:— LORD COLERIDGE.-Succeeded after four appeals in striking off 5s. 8d.-something more than a shilling by each proceeding! Well, if there is an Act of Parliament which says that you must have your costs, why, then you shall have them, not otherwise. MR. JUSTICE FIELD.-I offered to settle it at the time, and could have done so in two minutes. But your client insisted on taxation. I thought I had disposed of the case. Mr. Pitt-Lewis appeared for the plaintiff, but The COURT, without hearing him, dismissed the application, and made the applicant pay all the costs. COUNTY COURT JUDGES. It appears that the rank and precedence of Judges of County Courts in England and Wales have not been declared or defined by due authority. To supply the omission a warrant has been issued, which appears in the London Gazette of the 8th instant, in which the rank of these functionaries is defined as follows:-" Know ye, therefore, that in the exercise of Our Royal Prerogative, We do hereby declare Our Royal will and pleasure that in all times hereafter the Judges of County Courts in England and Wales shall be called, known, and addressed by the style and title of 'His Honour' prefixed to the word 'Judge' before their respective names, and shall have Rank and Precedence next after Knights Bachelors." EXHIBITION OF PORTRAIT. 'Marchand Juif' in any manner whatever, and to allow it to appear at a sale or public exhibition under any title whatever, reserving to Alexandre Dumas his rights and remedies in case the injunction is contravened. It declares, besides, that the plaintiff is not well sustained in the rest of his prayer requiring in particular the insertion of the judgment in twenty newspapers." The same Court some time ago gave judgment in Duverdy v. Zola, enjoining a novelist from giving to a character in a novel the name of a real person. NOTES OF CASES. COURT OF QUEEN'S BENCH. In the case of Dumas v. Jacquet the First Chamber of the Civil Tribunal of Paris, by a judgment delivered June 21, enjoined the public exhibition of a picture in which the artist had represented Alexandre Dumas, the Before DORION, C. J., MONK, RAMSAY, Cross, novelist, as a "Marchand Juif." The following is the judgment as published in the Law Journal (London):-- Seeing that it is not denied, and that it follows otherwise from the documents in the BABY, JJ. BOISSEAU et al. (defts. below), Appellants, and THIBAUDEAU et al. (plffs. below), Respondents. Payments made in fraud of creditors—C. C. 1036-Knowledge of insolvency. solvent has made payments to another creditor knowing his insolvency, has a right under C. C. 1036, to sue the latter in his own name, and to ask that such sums be paid into Court for the benefit of the creditors according to their respective rights. The relation of the parties and other facts esta cause, that Jacquet yielded to a feeling of personal resentment when, in February, 1882, he sent to the exhibition of Water Colour A creditor who alleges that his debtor while inPainters, and publicly exhibited in the galleries of Georges Petit, under the title 'Marchand Juif,' a picture which represented Alexandre Dumas habited in a caftan and keeping a bazaar; that Alexandre Dumas would have been entitled to bring an action even had the defendant reproduced his features without any malicious intention and simply because his authority had not been obtained; that still more his claim is well founded when the artist has manifestly given way to a feeling of disparagement with the object of attacking his reputation; "Seeing that in these circumstances Jacquet ought to be forbidden to exhibit publicly the picture in question in any manner whatever; That this injunction is sufficient, so far, to preserve the rights of the plaintiff without ordering at the present moment, as Alexandre Dumas claims, the destruction of the picture, in case the injunction should be disregarded, or granting the other prayers and conclusions of the claim; "The tribunal forbids Jacquet and his agents to send for public exhibition the blished in the present case, proved the creditor's knowledge of the debtor's insolvency. The respondents who were creditors to an amount exceeding $4,000 of an insolvent firm of Chaput & Massé, complained that Boisseau & Frère (the appellants) had received from Chaput & Massé a sum of $3,824 while the latter were insolvent, and the object of the action was to have Boisseau & Frère ordered to pay this money into court for the benefit of Chaput & Masse's creditors generally. The appellants demurred to the action, on the ground that the respondents were not entitled to come into court individually and (without alleging any transfer to themselves of the rights of the other creditors, or any authorization by the creditors) claim to have the payments set aside, and the money brought into court for the benefit of the creditors generally. The appellants also pleaded to the merits that they had no opportunity of knowing, and did not in fact know that Chaput & Massé were insolvent before the date of their assignment; that at the very time referred to (February, May and June, 1882), the appellants Boisseau & Frère themselves made considerable advances to Chaput & Massé in the belief that they would be able to meet their engagements. The court below (Mathieu, J., in the Superior Court, Montreal), maintained the action in part. The facts, as they appeared to the court, were that in the beginning of 1881, the defendants Boisseau & Frère, wishing to encourage Chaput and their relative Massé, advised them to form a partnership and commence business in Montreal. The partnership was formed, and by clause 7 of the deed it was stipulated that the books of Chaput & Massé should be regularly kept, and that Boisseau & Frère should have access to all the accounts and transactions. The bookkeeper of Chaput & Massé, one Noel, was also book-keeper to Boisseau & Frère. From April, 1881, up to 26th December, 1881, Chaput & Massé bought goods from Boisseau & Frère to a considerable amount. They also bought goods from J. G. Mackenzie & Co., from March, 1881, to November, 1881, Boisseau & Frère becoming responsible to the extent of about $1,200. In January, 1882, Chaput & Massé made an inventory of their affairs by which they showed assets $15,386.90 and liabilities $16,489.68, leaving a deficiency of $1,102.78, or rather of $1,600, as certain items of assets had been counted twice over. The court was of opinion from the relations between the parties that Boisseau & Frère must have known of the insolvency of Chaput & Massé in May, June and July, 1882. By article 1036 of the code, every payment by an insolvent debtor to a creditor knowing his insolvency, is deemed to be made with intent to defraud, and the creditor may be compelled to restore the amount received, for the benefit of the creditors according to their respective rights. As it was proved that Chaput & Massé were insolvent when the payments were made, and as Bois seau & Frère were aware of the insolvency, the article applied, and the action was maintained to the extent of $1,490. The payments made to J. G. Mackenzie & Co., to pay liabilities for which Boisseau & Frère were endorsers were not shown to have been requested by Boisseau & Frère, and the action was dismissed as to this part. The appeal was by the defendants from this judgment. It was contended on the part of the appellant that Article 1036 above cited applies only where the insolvency is open and notorious. The article says the creditor may be compelled to restore the amount. This indicated that the legislature did not intend to make an absolute rule, but on the contrary wished to give the court the power of appreciating the circumstances and ordering the money to be restored only where fraud is apparent or at least strongly presumed. On the evidence, which is voluminous, it was submitted that fraud was not established. The stipulation that Boisseau & Frère should have access to the books of Chaput & Massé had in view the case of difficulties arising between the partners, and as a fact Boisseau & Frère were not aware of the transactions of the other firm. It was argued by the respondents that the insolvency of Chaput & Massé and the knowledge of that fact by the appellants were clearly established; that article 1036 applied, and that the judgment was, therefore, correct. RAMSAY, J. This is an action brought against the members of the insolvent firm of Chaput & Massé and the members of the firm of Boisseau & Frère, creditors of Chaput & Massé, to set aside certain payments of the firm of Chaput & Massé to Boisseau & Frère as being made in fraud of the creditors of Chaput & Massé, and to compel Boisseau & Frère to pay into court the sums so received by them, and for other purposes. The judgment ordered Boisseau & Frère to pay back $1,490 to be distributed according to the rights of the creditors of the insolvent firm. Boisseau & Frère appealed, and contend that there is no such action known to the law, and that the respondents can only set up the extent of their interest and have the payments set aside in so far as it affects them. |