The

Canadian Law Times.

VOL. XXXVII.

NOVEMBER, 1917.

No. 11

ROBERT COOPER SMITH, K.C., D.C.L., LL.D. By S. W. JACOBS, K.C., OF THE MONTREAL BAR.

Robert Cooper Smith, K.C., D.C.L., LL.D., a leader of the Montreal Bar, and one of the best known lawyers in Canada, died in Montreal, on September 22nd, after an illness of a few days' duration. The late Mr. Smith's exceptional ability before the Courts was universally recognized, and as a public speaker at important functions, not only in Canada, but the United States, he was always eagerly sought. Amidst the multifarious duties which pressed upon him as a public man and active practitioner, he found time to lecture on Commercial Law to the students of McGill, and at the time of his death was one of the Law examiners of the Bar of Quebec. His interest in politics was deep and abiding, and he contested a Montreal Division for the House of Commons in 1908, in the Liberal interest.

The late Mr. Smith was essentially a lawyer, and fashioned himself upon the great legal luminaries who represent the best traditions of the English, French and American Bars. He occupied an enviable position in the Province of Quebec, and was looked upon as one of the most brilliant counsel of his day. In addition to sound judgment, practical application, and ripe wisdom, he combined a genial personality and airy gayety, which easily put him in a class by himself.

VOL. XXXVII. C.L.T.-50

In all important cases for the past fifteen or twenty years before the Courts of his native province, he appeared on one side or the other, and with many. litigants it was considered that to secure the services of Mr. Smith was half the battle. Before the jury he was inimitable in style and manner, and many were the successes which he obtained with "the dozen of intelligent men in the box before him." This was largely due to his knowledge of men, and the workings of their mind, for he was essentially a man of the world.

But it is for his successes in the Appellate Courts that Mr. Smith will be chiefly remembered. He had no peer before the Supreme Court of Canada, and the Judicial Committee of the Privy Council, in cases in which intricate questions of Constitutional law were concerned, or in matters of Company law. A long series of cases before these Courts in recent years attest to the consummate ability, wide erudition and convincing logic shown by the late Mr. Smith in the handling of the many leading cases entrusted to him.

In the case of Burland v. Earle', Mr. Smith's contention before the Judicial Committee was maintained, their lordships holding that the majority of the shareholders of a joint stock company may, even against the wishes of a minority, set aside for a reserve fund whatever proportion of the profits they may deem fit, and the Court cannot compel the directors of such company, so long as it is a going concern, to divide the whole of these profits among the shareholders, and further, that the question of what proportion should be so divided is entirely a matter which the directors must decide by themselves, the Court having no jurisdiction to say what is a fair and reasonable sum to retain undivided. Mr. Smith was opposed by Mr. Haldane, K.C. (now ex-Lord Chancellor). It is related that at the beginning of the argument, the Court was completely opposed to Mr. Smith's conten

tion, and during the early part of his address, showed their strong dissent from the views he advocated. He persisted, however, and when he sat down, had convinced the Court of the soundness of his pretensions. This case was one of Mr. Smith's big successes, and it was remarked by counsel present that no English barrister would have had the hardihood to continue, after the adverse criticism made by their lordships during the early part of his argument, and Mr. Smith's success was attributed to what was called his "colonial tenacity."

In the case of Grand Hotel Co. v. Wilson ("Caledonia Water" case),' he successfully maintained the principle that the appellants had not a right to the exclusive use of the word "Caledonia " as applied to mineral waters, the respondents being entitled to indicate the local source of their waters, and having sufficiently distinguished their goods from those of the appellants. This decision was not held to be in contravention of the rule that even a description of goods literally true, may be so framed as to mislead, and a trade name or mark which would not mislead the dealer, is an infringement because it is calculated to mislead the retail purchaser.

In Miller v. Grand Trunk Railway Co.,3 the deceased, as a condition of his employment, became a member of an insurance and provident.society, a bylaw thereof providing that in consideration of the respondents' subscription thereto, no member thereof or his representatives should have any claim against the respondents for compensation on account of injury or death from accident; it was held that even assuming this to be valid, the deceased had not received satisfaction within the meaning of Article 1056 of the Civil Code, which gives the widow and relatives of a deceased employee, whose death has been caused by the fault of his employer, an independent and personal

2 [1901] A. C. 103.

3 [1906] A. C. 187.

right, not derived from the deceased, or his representatives, and the deceased could not be said to have derived satisfaction from the respondent Company, within the meaning of that Article, unless he had received a real and tangible indemnity for the fault in question, as the insurance money did not proceed from the respondent Company, had no relation to its offence, and was equally payable in cases of natural death.

To cite, even concisely, the cases before the Judicial Committee, with which Mr. Smith was connected, would strain the limits of the present article. The following, among a host of other cases, laid down and definitely decided important principles of law, for the recognition of which Mr. Smith contended before the Courts:

Maclaren v. Hanson and The Attorney-General of Quebec; Corinthe v. Seminary St. Sulpice (Oka Indian case); Marriage Reference Case; Wentworth v. Mathieu (Scott Act case); The King v. Cotton (Succession tax on property without Province); ;* Robert v. St. Lawrence Power Co.; Dumphy v. Montreal Light, Heat & Power;10 McArthur v. Dominion Cartridge Co.; Standard Light & Power Co. v. City of Montreal (underground conduits);12 Vesey v. Montreal Gas Company.13

Mastery of speech and gift of oratory were developed in the late Mr. Smith to a very high degree, and these, combined with deep reading, extensive culture, retentive memory, and lively imagination, made him an ideal after-dinner speaker, quite the equal of Chauncey M. Depew, and the late Joseph H. Choate, with both of whom, and with many other Americans of

note, he was on terms of the greatest intimacy and friendship. His address of welcome to the American Bar Association, at its historic meeting in Montreal in September, 1913, and at the banquet tendered to Maître Fernand Labori, Batonnier of and delegate from the Bar of Paris, are quite the most eloquent which have ever been heard in this city. No function. of any consequence in Montreal was complete without the presence of the late Mr. Smith, and his wellchosen utterances on every occasion when called upon to speak on behalf of the Bar or other of the many associations with which he was connected, raised the proceedings to a high plane.

In the past fifteen or twenty years, he represented the local Bar at practically all United States' gatherings, so that he became known in the neighbouring Republic to thousands of practitioners, who, when speaking of Montreal, invariably referred to Mr. Smith's visits and addresses.

A few years ago, Brown University, of Providence, R. I., at its 150th anniversary exercises, conferred the degree of LL.D. upon him, ex-President Taft being honoured on the same occasion with a similar degree, and McGill likewise honoured him with a D.C.L.

He was one of the founders of the Canadian Bar Association, and at his death, one of its VicePresidents. Many years ago the Bar of the Province of Quebec elected him Batonnier-General, after his election as Batonnier of the District of Montreal. The Alliance Française, of the Montreal section of which he was a Vice-President, always welcomed him at its gatherings, and recommended him to the the French Government for the decoration of Officier d'Academie, with which he was duly invested, shortly before his death..

With all the honours and distinctions conferred upon him, he uniformly maintained the most modest demeanour, and it was only through those who were present either in Court, or at social functions, that