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The explanation of the Roman law, historical and expository—the “ Studies ”—is admirably given, clear, and simple, and yet very learned, and the whole work is conceived in a candid and liberal spirit, being besides distinguished by a calmness of tone eminently befitting the judicial pen. As a literary composition it has great merits; the topics are well selected, the language good, and the style generally thoughtful and assured.

We observe in it allusions, which are highly suggestive, on some of the subjects of the day. To these, as well as to the other characteristics of the book, we hope to direct attention in a future number, stating our views with all frankness, and with all the consideration and respect which are due to the learned Lord of Session.

The following will be noticed in our next Number.

Handy-book on the Diminution of the Poor Rates. By T. G. Grady,

Esq., Recorder of Gravesend. London: Wildy & Son. 1862. An Elementary View of the Proceedings in an Action at Law. By

J. W. Smith, Late of the Inner Temple, Esq., Barrister-at-Law, Author of “ Leading Cases.” Eighth Edition ; Adapted to the Present Practice by Samuel Prentice, Esq., Barrister-at-Law.

London: W. B. Stevens, Sons, & Haynes. 1863. The Criminal Law Consolidation and Amendment Acts of the 24th

& 26th Vic. With Notes, Observations, and Forms for Summary Proceedings. By C. S. Greaves, Esq., Q.C. Second Edition. London : V. & R. Stevens, Sons, & Haynes; H. Sweet; and W.

Maxwell. 1863. The Shipping Law Manual; a concise Treatise on the Law governing

the Interests of Shipowners, Merchants, Masters, Seamen, and other Persons connected with British Ships, together with the Acts of Parliament, Forms, and Precedents relating to the Subject; being especially intended for Popular Use in Sea-port Towns. By W. T. Greenbow, of the Inner Temple, Esq., Barrister-at-Law. London : V. & R. Stevens, Sons, and Haynes. 1863.

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Events of the Quarter.

The following judgment was delivered by Chief-Justice Erle on the 16th of January, in the Court of Common Pleas, in the case Kennedy v. Broun:

In this case the defendant obtained a rule to show cause why the verdict for the plaintiff should not be set aside, and either entered for the defendant if there was no evidence of a debt, or for a new trial if the verdict was against the evidence. The material facts upon the first question are, that in the course of the suit between Swinfen and Swinfen, the plaintiff, a barrister, became the advocate of the present defendant, and during the continuance of that litigation she made repeated requests to him for exertions as an advocate, and repeatedly promised to remunerate him for the same, and after the end of the litigation she spoke of the amount of this remuneration ; and for the purposes of the present judgment, we assume that she admitted the amount of debt due for such remuneration to be 20,0001., and promised to pay it. These facts are no evidence to support the verdict, if the promise of the defendant did not constitute any obligation, and we are of opinion that it did not. We consider that a promise by a client to pay money to a counsel for his advocacy, whether made before, or during, or after the litigation, has no binding effect ; and, furthermore, that the relation of counsel and client renders the parties mutually incapable of making any legal contract of hiring and service concerning advocacy in litigation. For authority in support of these propositions we place reliance on the fact that in all the records of our law, from the earliest time till now, there is no trace whatever either that an advocate has ever maintained a suit against his client for his fees in litigation, or the client against an advocate for breach of a contract to advocate; and as the number of precedents has been immense, the force of this negative fact is proportionally great. To this we add the tradition and understanding of the profession, both as known to living memory, and as expressed in former times. Sir John Davies (Davis's Rep. Pref., p. 23) declares that understanding at the beginning of the seventeenth century, when he says, “ that the fees of professors of the law are not duties certain, growing due by contract for labour or service, but gifts; not merces, but honorarium.Sir John Davies would have ample experience of the rules of the profession from his eminence in the law, and his opinion is entitled to much weiglit. Lord Stowell, as appears in a work remarkable for learned research (Wallace's Reporters, p. 27), speaks of him as a “poet, a lawyer, and a statesman, and highly distinguished in each of these characters.” Lord Hale declares the same understanding of the profession in the note to Co. Lit., 295a, saying, “a counsellor

cannot bring any action (id est for his fees), for he is not compellable to be a counsellor. His fee is honorarium, and not a debt ;" and for this he cites Lord Nottingham's MSS. The same note contains the opinion of Mr. Butler to the same effect, saying that in England the fees of counsel are honorary in the strict acceptation of the word. Blackstone also (vol. iii. p. 28), declares the same understanding : A counsel can maintain no action for his fees, which are given not as locatio and conductio, but as quiddam honorarium, not as salary or hire, but as mere gratuity.” As we know of no authorities that conflict with these, we only add the names of the Judges who have had occasion to declare an opinion to the same effect, and they are Lord Hardwicke, Lord Kenyon, Kindersley, V.C., Pigot, C.B., and Bayley and Best, J.J. These are authorities for holding that the counsel cannot contract for his hire in litigation. The same authorities we rely on to show that the client cannot contract for the service of the counsel in litigation. There is the same absence of any precedent for such an action, and the reason for the one incapacity is good for both. We proceed to the authorities on which the plaintiff relied. Instead of examining each citation separately, we think it more convenient to take them in classes, and to give the reason why each class appears to us to have no weight. The proposition is confined to incapacity for contracts concerning advocacy in litigation. This class of contracts is distinguished from other classes on account of the privileges and responsibility attached to such advocacy, and on this ground we consider the cases unconnected with such advocacy to be irrelevant. Thus the barrister who contracted to serve as returning officer (“ Egan v. Kensington Union," 3 Q. B., 324), and the barristers who contracted to serve as arbitrators, and the barristers who contracted eitber for an annnal sum by way of retainer or for an annuity pro consilio impenso et impendendo, made contracts not concerning litigation, and therefore not within the incapacity here in question. It may be that a contract for a general retaining fee for a counsel may not bind at the present day, because it relates in substance to litigation, and so may be distinguished from annuities to a standing counsel who was required to guide by his advice in the management of property and general affairs. The change in the habits of Courts and the practice of the Bar since the last mentioned cases were decided has probably made the position of an advocate now as different from that of standing counsel then as the position of the clergy now differs from that which they held when private chaplains were hired to serve as chaplains and perform other work, and were prosecuted for breach of their contracts to serve under the statute of 23 Edward III., relating to labourers, in one of which prosecutions, against a parochial chaplain for breach of his contract to serve as seneschal and be parochial chaplain, the Court of Common Pleas thought that, as far as related to his duty as chaplain, he might be considered to be in the service of God, and therefore not within a statute expressed to relate to mowers and reapers and the like, but hesitated so to decide till they had consulted their brethren of the other bench, and had their sanction. But, be

that wrong.

that as it may, fees unconnected with litigation are irrelevant to our present judgment, and this distinction seems to be taken in “ Mengay v. Hammond” (Cro. Jac., 482), where the plaintiff sued for an annuity pro consilio. The defendant pleaded a refusal of the plaintiff to sign a bill in the Star Chamber, and the plea was held bad because a counsellor with such a fee is not bound to put his hand to every bill, but only to give counsel. With respect to the dicta cited by Mr. Kennedy relating to the liability of counsel for their conduct as advocates, they are all considered and overruled in the action of “Swinfen v. Lord Chelmsford” (5 Hurlst. and Nor., 518). Some relate to retainers relating to purchases of land, or similar services, and so are not within the incapacity here in question, and although the dictum of Paston (C. J. 14, H. 6, fo. 18, p. 58), “ that action lies against a serjeant who fails to attend in court,” and a dictum by Stokes, counsel, to the same effect, relate to litigation, yet they are mere remarks in the course of an argument and not adjudications, and they were expressly overruled as before mentioned. Mr. Kennedy cited Rastel's Ent., p. 2, as containing precedents for actions against an attorney or counsel, for not appearing in court according to his retainer ; but the book contains no entry against a counsel for

There are three entries in succession. The first is against an attorney, and is for that wrong. The second precedent is against a counsel who was retained to advise about the purchase of a manor, and betrayed his client's secrets and interest, and is not an entry which relates to litigation; and the third is against a counsel, but it is for a penalty under a statute, for taking retainers on both sides as an ambidexter. The citation from Rastel, therefore, does not support the plaintiff's argument. A considerable part of Mr.

A Kennedy's learned research consisted of anecdotes of various classes relating to barristers, irrelevant to the point for adjudication, because irrelevant to capacity or incapacity for contracting for advocacy. Such are the anecdotes relating to the habits of barristers when they held communication with their clients personally before the rights and duties of attorneys and solicitors were ascertained, and the advocate did the work of each branch of the profession habits which continued in Jersey until lately. (See Jersey case, 13 Moore's P. C., 263.) Such also are those relating to alleged endeavours by barristers to obtain larger fees. Wbether this has been done or not, and whether a communication in respect of the amount of the fees be made to the client by the clerk or the barrister, the nature of the fee is not altered, nor is the right to sue for it affected thereby. Such also are those relating to payment after instead of before the service is performed. In England the general usage is prepayment. On the continent, under the Roman law and the modern French law, and in some exceptional cases in England, the fee is paid after the service. But again, the nature of the fee is not aliered by the time of payment. The anecdotes in each of these classes show that the payments are of gratuities and not of debts, and, so far as they are to be noticed for adjudication, tend to support the defendant's case. As to express contracts, certain dicta by Pigot, C.B., and by Pollock,



C.B., were cited for the purpose of proving that a barrister had capacity to make himself liable under a special contract with his client concerning advocacy, though not by an implied contract. We think that the effect of those dicta has been misunderstood. A special contract differs from an implied contract only in the mode of proof. If a brief marked with a fee for a given place of trial is left in silence, there would be some evidence of an implied contract to pay the fee were there no usage to the contrary, and no incapacity for such a contract. If the same brief is left with an express contract to pay the fee there would be an express contract if there were no incapacity. Where the service of the barrister according to usage is for a gratuity, that usage would be presumed to continue unless there was an express contract rebutting that presumption, and where there is no incapacity the presumption from usage is rebutted by an express contract. Pollock, C.B., does not refer to any authorities, but the cases referred to by Pigot, C.B., show that this was his meaning, for he refers to the cases above mentioned, where barristers, either as returning officers or as arbitrators, sustained actions for their fees. The incapacity depends on the subject matter of the contract, not on the mode of proof. When the contract is proved its incidents are the same whatever was the kind of evidence adduced for proof. If there is incapacity, words and implication are alike nullities, and no contract can result; but where there is no incapacity, and there are conflicting presumptions in respect of the consensus essential to create contract, there evidence of express words of clear meaning is decisive proof. In this sense the observation of Wood, V.C. (“Attorney-General v. College of Physicians," 1 Johnson and H., 561) must be understood, saying, “ That a physician might recover his fees if he makes a special contract.” . We know of no incapacity affecting a physician according to usage, the practice being for a fee, which is honorarium, not merces, and no action lies where the parties are presumed to have acted according to this usage; but if the presumption is rebutted by evidence of an express contract, such contract binds, and a physician may sue and be sued thereon, as was held in “Veitch v. Russell,” 6 Car. and M. 362. Mr. Kennedy argued that under the civil law an advocate could sue for his fees, and that Blackstone made a mistake in referring thereto to support a contrary opinion. In this it appears to us that the mistake is on the part of the plaintiff. Throughout the whole growth of the Civil Law, from the foundation of Rome to the Digest of Justinian, not only was the advocate always under incapacity to make any contract for his remuneration, but also throughout a part of that time he was under prohibition from receiving any gain for his services; whether the name be donum, or merces, or honorarium, is immaterial; the substance of the law was invariable, he never could contract for merces, though during part of the time he might lawfully accept a donum. In the beginning all agree that the patron received no money for advocacy; afterwards he took gifts to an excess, and was restrained in the year 550 A.U.C., by the “ Lex Cincia de

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