Mowat v. Brown

19 F. 87 | U.S. Circuit Court for the District of Minnesota | 1884

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.) The 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 province 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 seven-eighths of the barristers reside in the city of London, a change in the organization of the legal profession is mooted¹ 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 common-law doctrine.

But there is another reason for giving the plaintiff 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 cf 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 Serg. & 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.

1 See article by “ English Lawyer ” in the Nation, December 20, 1883.