A rule called Rule No. 46 was passed on the 10th September, 1881, fixing the fee payable by barristers at $100. In my opinion this fee for call relates to barristers who are called, having passed their primary examination in this Province; it is found classed with other fees payable by students.

Provision is made in the schedule of fees fixed by that rule for the payment of fees on admission by barristers from the Dominion, or England, Ireland or Scotland. This fee is fixed at $158.

This fee at the time of Mr. Miller's admission was beyond the amount which the Law Society was authorized by 45 Vic. c. 1, s. 1, to impose. Unless the fee payable by Mr. Miller is provided for by the item in the tariff of fees fixed at $100, no fee seems ever to have been fixed with which he could be legally charged.

Mr. Miller's call to the bar is expressly stated to be as the call of Judge Miller, and the resolution is in the following words: "That the Honorable James A. Miller (late one of the Justices of the Court of Queen's Bench of this Province) be called to the bar of this Province."

His call was undoubtedly under the c. I, s. 5, which expressly provides that

Stat. of Man., 45 Vic. any judge of a superior

court of the Dominion of Canada who may have resigned shall

That statute did not pro

be entitled to be admitted to the bar. vide that a retired judge should be admitted without payment of fees on admission, but as no fee had been fixed which he was bound to pay, there was no obligation upon him to pay either the maximum fee of $150 or any other fee.

No fee was afterwards fixed by the Society, unless the resolution adopted on 29th May, 1882, in the following words, can be called a rule or by-law:

"Moved by Mr. Aikins, seconded by Mr. Blanchard, that the fees charged under the Amended Act be, for call $150, and for admission as attorney $100. Carried."

The statute 45 Vic. c. 1, s. 3, only authorizes the imposition of a fee when done by rule or by-law. The resolution of 29th May, 1882, is not, in my opinion, either a rule or by-law. Queen v. Edmonds, 4 E. & B. 993. It is true that the schedule of fees is re-enacted on this day, but they are open to the same objection as other fees passed, as not covering the admission of judges,

with this additional one, that the fee is in excess of the amount limited by statute, and exceeds by $8 the powers of the society.

But by statute 48 Vic. c, 39, it is enacted that a retired judge shall not be required to pay fees for call or admission, and that the said Act shall be read and construed as if the amendments had been originally inserted in 45 Vic. c. 1, S. 5.

In my opinion, there was not at the time of Mr. Miller's call any rule or by-law fixing any fee which he was bound to pay. And that he would in any event be exonerated from the pay of any fee by the Act 48 Vic. c. 39, and that this statute has a retrospective effect by express words.

I am of opinion that the by-law ordering him to be struck off the roll for non-payment of fees on admission is not sustained by the statutes, and by the rules and by-laws authorized by statute.

The Law Society having been cited appeared before the Justices of the Court of Queen's Bench, and by counsel contended that they were not answerable to us as visitors, as no duties are assigned to us, or any subjects set down in the statute in respect to which we had the right to visit them. It is contended that the 322nd section of chap. 9 of the Con. Stat. Man., which is in the words following: "The Chief Justice and Puisne Judges of the Court of Queen's Bench shall be visitors of the society," simply make the appointment and assign no duties. This is a section of the Act which Act constitutes the Law Society of Manitoba a corporation, and by which the power of striking off the roll of any barrister for non-payment of fees due to the society is authorized.

And it is contended that as nothing more is said in the Act than the mere appointment of visitors, that no power to revise their proceedings is vested in us.

As we are not unanimous in our opinions upon this question, I think it best to state my opinions at length. A visitor of a corporation, such as the Law Society, is defined as follows:A visitor is a person authorized to visit a corporation or any institution for the purpose of seeing that the laws and regulations are observed, or that the duties and conditions prescribed by the founder or by law are duly performed and executed. And Burrill describes their duties as "the act of visiting for the purpose of examining into the affairs of a corporation ".

In Stephen's Commentaries, vol. iii., p. 26, he says, "The founder of a lay corporation has a right to appoint a visitor and to limit the jurisdiction that he is to possess.'

And in 2 T. R.

In Phillips v. Bury. Ld. Ray. 5, it is said, a public corporation is not subject to any founder or visitor or particular statute, but the general and common laws of the realm; but of a private corporation, if the founder has appointed no visitor, the law appoints the founder and his heirs to be visitors. p. 349, Holt, C.J., says, "It is clear that where anyone is a visitor of a college, he has full and ample power to deprive and remove any member of the college, qua visitor; and that the words, sit visitator-let him be visitor, is sufficient to vest general visitatorial power in a person to whom it is said."

In King v. The Bishop of Ely, I Wm. Blk. 83, Lord Mansfield says, "You must look into the whole tenor of the statutes to see whether the power be given or intended to be given. A founder may appoint a particular visitor for a particular purpose, or he may split the power into as great a variety of statutes for particular cases as he pleases, but when he does that the court will collect from the whole considered together whom he intended to appoint as general visitor"; and from Rex v. Benchers of Gray's Inn, 1 Douglass, 353, it appears also that when the judges are visitors a mandamus will not lie to admit a barrister.

In The Queen v. The Dean and Chapter of Rochester, 17 Q. B. 1, Patterson, J., speaks of the general authority of a visitor, and Erle, J., says, "If they had jurisdiction at all, they have authority to decide this, i. e., to remove an officer.".

In 15 Q. B. 517, Lord Campbell says, "The office of a visitor is well known to the law, the law defining and recognizing his powers when they are not limited by the founder;' and at p. 519 he says, "and by this visitor he has sentence, right or wrong, and the party is concluded by it."

It is true that in this statute of Manitoba no power is expressly given to the visitors, and with equal force it may be said, their powers are not limited or in any way restrained.

The appointment as visitors is, however, plainly and unequivocally laid down in the Act by express enactment. In what respect are we their visitors? The words, let him be visitor, vests in him general visitatorial power. This much, at least, is

said in the statute, and in the absence of express limitations as to the extent to which our powers may go, we are, from the authority above cited, allowed to collect from the whole statute the subjects in respect to which we are empowered to visit.

This society has the right to remove the name of a barrister from the roll, but the facts upon which they assume so to act are fit subjects for inquiry by the visitors.

I hold that in the absence of any express restriction or limitation of our powers, as such, that we have the right to visit the society upon every matter in respect of which their Act of Incorporation gives them the power to act. If, however, they should be found to have exceeded the powers conferred upon them by the Act of Incorporation, they would then be liable at law for such excess of authority as in evidence of cases of corporations acting ultra vires, and could be restrained by injunction or be prosecuted for wrong done.

Dubuc, J., concurred with the Chief Justice.

TAYLOR, J.-I would agree with the conclusion arrived at in the judgment of the learned Chief Justice, concurred in by my brother Dubuc, did I not entertain the gravest doubt as to our power to interfere as visitors in the matter brought before us by Mr. Miller's petition.

Section 322 of chapter 9 of the Con. Stat. of Man. says,—The Chief Justice and Puisne Judges of the Court of Queen's Bench shall be visitors of the Society. The Statute nowhere else refers to the visitors or their powers.

It is true, that no particular words are required to create a visitor. It has been determined to be sufficient if the intention of the founder appears who should be visitor, and technical words are not necessary. It was so held by Lord Hardwicke in Attorney General v. Talbot, 3 Atk. at p. 673: by the Court of Queen's Bench in St. John's College v. Todington, 1 Burr. 158, reported as King v. The Bishop of Ely, 1 W. Bl. 71, and in Rex v. The Bishop of Ely, 2 T. R. 335, in which Ashurst J. said, "There is no technical form of words for granting a visitatorial power, but it may be by any words showing that meaning."

But in all the cases bearing upon this subject which I have examined, and I have examined a large number, I find that the

powers of the visitors are always set out and defined either by the original charter of incorporation, in the grant of the founder endowing the institution, or in statutes passed by the corporation pursuant to powers contained in the charter or grant.

Thus, in Attorney General v. Talbot, 3 Atk., 673, which related to the affairs of Clare Hall, Cambridge, the Statutes of Lady Clare, the foundress, directed that the Chancellor once in every year should visit the College, should interpret the statutes, and correct where correction was proper. So in The Bishop of Ely v. Bentley, 2 Bro. P. C. 220; The King v. The Bishop of Ely, 1 W. Bl. 71; reported as St. John's College v. Todington, Burr. 158; Whiston v. Dean &c., of Rochester, 7 Hare, 532, and Reg v. Dean &c., of Rochester, 17 Q. B. 1; the various statutes declaring the powers of the visitors are all set out. The same thing will be found in the case of Kirkby Ravensworth Hospital, 8 East 221; 15 Ves. 305.

In that case the question was whether there was a general visitor whose powers would exclude those of the Commissioners of Charities, Lord Eldon said (15 Ves. at p. 315), "The question is whether, taking the whole of the statutes together, the person pointed out would have the general visitatorial power, or would be entitled upon the whole to have so much as belongs to the exercise of it according to the plain interpretation of the terms in which the visitatorial power is given, the founder intending to withhold all other visitatorial power, or to devolve the rest entirely or in part upon other persons."

One of the points resolved by three of the judges in Philips v. Bury, Ld. Ray. 7, was "The means by which the proceedings of the visitor ought to be tried and examined are the Statutes of the College, and therefore it is now to be seen if he hath pursued the authority that they have given him." C. J. Holt gave judgment dissenting upon some points from the other judges from which the learned Chief Justice has quoted, but even he held that the visitor is to judge according to the Statutes of the College, that is, as I understand, according to the power and authority which these statutes confer upon him.

In Green v. Rutherforth, 1 Ves. Sen. 474, Lord Hardwicke referred to the case of Eton College, where the Court held that