HOWAT 11. BROWN.
the plaintiff, you will allow him such damages as you deem to be reasonably sufficient to make good to the heirs of the deceased the pecuniary 10BB to them occasioned by his death, not exceeding the sum of $5,000. In determining this amount, if yon come to the question, you may consider any evidence before you tending to show what was the reasonable expectation of pecuniary benefit to said heirs from the continuance of his life. The age of deceased, his pecuniary circumstances, his habits of industry, his accustomed earnings, measure of success in business, and the like, as far as they appear in evidence, are proper to be considered.
and others .,. BROWN and others.
(Oircuit Oourt. D. Minnesota. 1.
CoUNSEL'S FEEB-LAW OJ!' ONTARIO.
In the province of Ontario it is settled, by the case of McDougal v. OampMl. that a barrister can maintain an action to recover his fees for services rendered as counsel.
SAME-BILL OF EXCHANGE-CONSIDERATION.
Even in those jurisdictions where a counsel cannot collect his fees by process of law, an action will lie upon a bill of exchange or promissory note given in consideration of his services.
Stipulation is filed waiving a jury, and the case is tried by the court. The action is brought upon a bill of exchange accepttld by the drawee:
TORONTO. April 20, 1880. "Three months after date pay to the order of ourselves, at the Bank of Commerce, here, one thousand dollars, value received, and charge to the acMOWAT, MACLENNAN & DOWNEY. count of "To Mess. Brown & Brown, St. Oatherines, Ontario." Indorsed across the face: "Accepted. BROWN & BROWN."
Issue is joined by the answer that the consideration for the bill is barristers' fees, and it is claimed that, by the law of the province of Ontario, in Canada, suit to recover such fees cannot be maintained. Atwater d; Atwate1', for plaintiffs. Welsh d; Botkin, for defendants. NELSON, J. It is admitted that the law of the province of Ontario governs the contract; and this case has been argued upon the single point whether or not, in this province, a counsel, who is also an attorney, can recover his fees for services rendered as counsel in matters in litigation. It appears to have been decided by the court of -queen's bench, in that province, contrary to the law of England, that
counsel can sue for fees. HARRISON, C. J., dissenting. See McDougall v. Campbell, Easter Term, 1877, (U. C. 41 Q. B. 332.) rrhe chief justice vigorously combats the progressive views asserted by the majority, "as tending to lessen the standard of professional rectitude at the bar." I shall accept this decision of the court as settling the case upon the point controverted, and hold that, in the pro'dnce of Ontaro, a counsel can maintain a suit for his fees, and that the common-law rule is modified. It may be stated here that in England, where seveneighths of the barristers reside in the city of London, a change in the organization of the legal profession is mooted 1 to unite the functions of the attorney and barrister in one person, which, if adopted, (as is not unlikely,) will extend to a complete revolution of the commonlaw doctrine. But there is another reason for giving the plamtiff judgment which is satisfactory to my mind. The suit is upon a bill of exchange accepted by the defendant. The fact that. the common-law doctrine prevails in the province of Ontario, should we admit it, cannot be urged to defeat a recovery in this case. There is nothing in the doctrine of an honorarium, or a gratuity, which forbids the client, or attorney, who engages counsel, to give, for the services rendered, his note or similar obligation. An action will lie for its non-payment, as the consideration is not illegal. This is a different thing from suing for fees. See Mooney v. Lloyd, 5 Sergo & R. 412. Upon full consideration, I think judgment must be rendered for the amount of the bill of exchange, with interest and costs, and it is so ordered.
COOKE & Co.t
(District Oo'lJlrl, E. D. P6nnsylfJania.
BANKRUPTCY-EQUITABLE ASSIGNMENT-SUBROGATION-CONSTRUCTIONS 01l' STATUTES-ACTS JUNE 22,1874, (18 ST. AT LARGE, 142,) AUGUST 8, 1882, (ST. 1882, P.
376.) The Soldiers' & Sailors' Orphans' Home proved a claim against the bankrupts, and subsequently, by act of congress, an appropriation was made to the home of the amount of the claim, and the attorney general was directed " to inquire into the necessity for and to take any measures that may be most effectual to enforce any right or claim which the United States have to this money, or any part of the same, now involved in the bankruptcy of Jay Vooke & Co." In pursuance of a subsequent act, the home by deed transferred aU its property, real and personal, to the Garaeld Memorial Hospital. Held, that the United States had not acquired any title to the claim, either by snbrogation or equitable assignment, and that the hospital was entitled to receive the claim against the bankrupts.
Exceptions to examiner's report.
article by "English Lawyer" in thJ Nation, December 20, 1883 Reported by Albert Guilbert, Esq., of the Philadelphia bar.