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"Interveners contend that the provisions of the statutes with reference to the com
Very seldom does one see any reference pensation and lien of attorneys override the
nowadays to the Factors Acts, but these Statute of Frauds. These statutes provide statutes embody a vital and far-reaching that a party shall have an unrestricted principle of English law. The recent case right to agree with his attorney as to his of Folkes v. King, to which we are to refer compensation for services, and the measure
later, illustrates how they operate, and furand mode thereof,' and that 'an attorney has
nishes the occasion of our offering some a lien for his compensation whether the
explanatory observations which we trust agreement therefor be express or implied
may be of practical service to our readers. upon the cause of action, and upon the interest of his client in any money or property
The general object of this branch of leginvolved in or affected by any action or pro
islation may be said to have been to bring ceeding in which he may have been em- the law of possession of movable property, ployed. We find nothing in these statutes regarded as a title to dispose of it, into inconsistent with the Statute of Frauds. At
accordance with the general feeling and torney and client may make such agreement,
everyday usages of business men. The as to attorney's fees as they choose, but if
ordinary trade understanding is that if a they choose to agree upon a conveyance of land as part or whole of the attorney's fees,
man is in possession of mercantile commodthere is nothing in these statutes which ex- ities, or of documents of title, he may be pressly or impliedly provides that such assumed either to be their owner, or, if agreement is not required to be in writing,
not, to be an agent having authority from as the Statute of Frauds provides. Inter
the owner to dispose of them, and that, veners contend that under the 1917 Law the performance of the contract by the attor
in the latter case, the owner should be the neys created a lien upon the title to the sufferer in the event of a fraudulent or lands to the extent fixed by the terms
improper disposition by the agent, rather of the contract, to-wit, an undivided one
than a third party transacting on the faith half interest therein, or, otherwise stated, that there may be a lien for the attor
of the apparent authority to dispose conney's compensation, though his compensa
ferred by the possession of the commodities tion is to be paid in land. We are un- or documents. To carry out this view to able to adopt this theory. As stated in an- its fullest extent would be to assimilate the other part of the intervener's brief, a lien
transfer of movable property to that of upon the land to the extent of an undivided one-half interest in the fee thereof, if it has
negotiable instruments; the Factors Act any meaning at all, means nothing more or
steers a middle course between that exless than the ownership of said one-half in- treme and the principle of the common terest. It would be mere evasion to say that
law (more particularly in England), that the Statute of Frauds may be avoided by call.
the purchase or pledgee of movable proping a transfer in fee a mere llen."
erty of the ordinary mercantile character This view is supported by a number of cases
took, except in the case of sales in market mentioned in 21 A. L. R. 352, among which
overt, no better title than his author, and Jackson v. Stearns, 58 Oreg. 57, 113 Pac.
was subject to all exceptions which were 30, 37 L. R. A. (U., S.), 639, Ann. Cas. 1913A
pleadable against him. The Factors Acts of 284; Farrin v. Matthews, 62 Oreg. 517, 124 Pac. 675, 41 L. R. A. (U. S.) 184; Sprague v.
1889 is a consolidating statute which reHaines, 68 Tex. 215, 4 S. W. 371, overruling peals and reproduces the provisions of a Anderson v. Powers, 59 Tex. 213; Martin v.
series of Acts passed between 1823 and Bateman, 111 Wash. 634, 191 Pac. 759.
A mercantile agent is defined, for the tion in Folkes v. King arose.
The plaintiff purposes of the Act, as (s. 1) “a mercan- delivered his motor car to a mercantile tile agent having in the customary course agent, to be sold on commission. It was of business as such agent authority either agreed beween the plaintiff and the merto sell goods, or to consign goods for the cantile agent that the motor car was not to purpose of sale, or to buy goods, or to raise be sold under £575, without the plaintiff's money on the security of goods,” and the permission. The mercantile agent, howAct proceeds in Section 2 to lay down as ever, sold the plaintiff's motor car without follows the “Powers of a mercantile agent the plaintiff's permission, for £340, to a with respect to disposition of goods'': bona fide purchaser, without notice of the
(1) Where a mercantile agent is, with fraud, and converted that sum to his own the consent of the owner, in possession of use. The motor car was re-sold to another goods or of the documents of title to goods, purchaser, who later sold it to the defendany sale, pledge or other disposition of the ant. In an action by the plaintiff for the goods, made by him when acting in the return of the motor car or its value, the ordinary course of business of a mercantile defendant pleaded that the motor car had agent, shall, subject to the provisions of been sold to the defendant's predecessor in this Act, be as valid as if he were expressly title by a mercantile agent who was in posauthorized by the owner of the goods to session of it with the plaintiff's consent. make the same; provided that the person The learned judge who tried the action taking under the disposition acts in good found that the mercantile agent obtained faith, and has not at the time of the dis- possession of the motor car with the intenposition notice that the person making the tion of defrauding the plaintiff of his disposition has not authority to make the property, and that at no time did he intend same.
to carry out the arrangement he had made (2) Where a mercantile agent has, with with the plaintiff, but that his intention the consent of the owner, been in possession was to sell it at the best price obtainable, of goods or of the documents of title to and to use the proceeds for his own purgoods, any sale, pledge or other disposition, poses. His lordship held, accordingly, that which would have been valid if the consent the mercantile agent could pass no title to had continued, shall be valid not withstand the purchaser and that, therefore, the ing the determination of the consent: pro- plaintiff could recover.
It has now been vided that the person taking under the dis- held, on appeal, that notwithstanding that position has not at the time thereof notice the plaintiff had been induced by fraud to that the consent has been determined. part with the possession of the motor car,
(3) Where a mercantile agent has ob- yet the possession of the motor car by the tained possession of any documents of title mercantile agent was possession with the to goods by reason of his being or having consent of the plaintiff, and the mercantile been, with the consent of the owner, in pos- agent could, therefore, give a good title to session of the goods represented thereby, or a bona fide purchaser for value without of any other documents of title to the notice, and the defendant was protected goods, his possession of the first-mentioned by s. 2 of the Factors Act, 1889. documents shall, for the purposes of this In delivering the leading opinion of the Act, be deemed to be with the consent of Court of Appeal, Lord Justice Bankes the owner.
said: “Section 2 of the Factors Act pro(4) For the purposes of this Act the vides protection in statutory form to perconsent of the owner shall be presumed in sons who, bona fide and without notice of the absence of evidence to the contrary. any want of authority on the part of a
It was under that section that the ques- mercantile agent, have purchased goods
from the agent, he being in possession of
AMERICANISM the goods with the consent of the owner. I can see no reason why rules and princi
DECLARATION OF INDEPENDENCE AND ples of the criminal law are to be intro
THE CONSTITUTION duced for the purpose of putting a con- Our Constitution is the Declaration of struction on the language of the section. Independence writ large as the basic law What the section refers to is the consent of our American form of Government. of the owner. To establish a consent it is Having won their national Independence, , no doubt necessary to consider what the the colonists set about to establish a govstate of mind of the owner of the goods ernment on the foundations of liberty and was with reference to the possession of equal justice which was voiced in the them by the mercantile agent. I fail to see Declaration. They set about to form a how far this purpose, or for any purpose national government which should above of applying the section, it can be material all else, in the words of the Preamble to to look into the mind of the mercantile the Constitution, secure the blessings of agent, any more than it would be to look liberty to themselves and to their posterity. into his pocket to ascertain whether he was
as The task was not an easy one because it in a position to pay for the goods. It is was necessary to have a strong central govnot universally true that no title can be ernment for the sake of protection from obtained from a thief, as witness a sale by foreign powers, and at the same time to a thief in market overt. It is admitted guarantee to each citizen as great liberty that where possession of goods has been of action and freedom from governmental obtained by false pretenses, or where a interference as was possible. bailee has stolen them, a title by a bona The Constitution, adopted in 1788, gave fide purchaser can be made under the greater liberty and greater power to the section. If so, why not where the goods citizens of the United States than any govhave been stolen by a trick? The question ernment had ever before given to the comof the guilt of the alleged thief, where his mon people. It provided, furthermore, for intention is material, is, as it appears to amendments by means of which even me, so entirely immaterial in considering greater liberty has been secured. . whether a title has been made under the At the present time, the Constitution, Factors Act to the goods which it is al- with its amendments, guarantees: Freeleged that he has stolen, that the two con- dom of religious belief, freedom of speech, siderations should be kept entirely dis- freedom of the press, the right to petition, tinct. To allow the one to be defeated by the right to keep and bear arms, the right a consideration of the other is, in my to vote without abridgment of this right opinion, to sweep away a great part of the because of race, color, sex or previous conprotection which the Factors Act was in- dition of servitude. In short, the Constitended to provide, and which, when incor- tution guarantees to every citizen, high or porated into a statute, was not introducing low, absolute freedom in thought and conany new principle, but merely continuing duct, so long as he does nothing which inone long known to the Mercantile law.” terferes with the rights or liberties of a
These observations are certainly in ac- fellow citizen. cord with the purpose and trend of the The Preamble to the Constitution and Factors Acts which are that an ostensible the first ten amendments, which constitute mercantile agent ostensibly in possession our Bill of Rights, the leading provisions of goods can give a good title in the ordi- of which are above set forth, are the exnary course of business to a bona fide pur- pressions of the spirit and ideals that were chaser.
voiced in the Preamble to the Declaration.
The Bill of Rights embodies "certain in-earth, Columbia, and called them equal. alienable rights” which American citizens Thou hast conferred upon them imperial have enjoyed since the foundation of our sovereignty, revoking all titles but that of government, which are as common as the man. Native and exotic, rich and poor, air we breathe and which are, therefore, good and bad, old and young, the lazy and not appreciated as they should be. Can the industrious, those who love and those any one estimate the blessings of liberty" who hate, the mean and lowly, the high and that have been vouchsafed by the provisions mighty, the wise and the foolish, the pruimbedded in the Constitution, which pro- dent and the imprudent, the cautious and tect the rights of private property, guaran- the hasty, the honest and the dishonest, tee freedom of speech, freedom of the press those who pray and those who cure—these and freedom of religious belief, insure the
are God's children these are thy rulers, right of trial by jury, abolish all forms of () Columbia. Into our hands thou hast nobility or social caste and give every citi- committed the destinies of the human race, zen an equal chance in the race of life? even to the omega of thine own destruc
With such a basic law as a protection of tion. And all thou requirest of us before the people even against themselves, which we o'erstep boundaries blazed for guidance cannot be changed by popular vote or a
is what is required of us at every railroad majority of a State Legislature or Con- crossing in the country: ‘Stop. Look. gress, but only by the vote of at least three- Listen.' Stop and think. Look before and fourths of the States, and with the wonder- after and to the right and left. Listen to ful progress our country has made under the voice of reason and to the still, small this Constitution, it behooves us to support
voice of conscience. it loyally and defend it against all enemies “If the zealot, impatient of the wise in whatever form the attack may come; to caution and delay enjoined by the Constihold fast to it as the very Ark of our tution, would break down its barriers by Covenant and to heed well the admonition hasty action, he should be compelled, if of Scripture, “Remove not the ancient | only as penance, to study the Constitution landmark which thy Fathers have set.” and to know all the circumstances out of
During an address on “The Constitution which it grew, the quality of the men who Between Friends," delivered before the fashioned it, as well as the quality of the Missouri Bar Association at Kansas City, work accomplished by them. He should be Missouri, September 26th, 1913, Henry D. taught these things in school. We have Estabrook paid the following magnificent deposed the Bible in our public schools; tribute to the Constitution :
would any American object if we substi“And so, on this great continent, which tuted the Constitution? Why should our God had kept hidden in a little world-schools have a “Flag Day?'
'Why should here, with a new heaven and a new earth, a teacher point her pupil to the flag and where former things had passed away, the the stars enskied on it, as the symbol of people of many nations, of various needs human liberty, without telling him of the and creeds, but united in heart and soul tremendous Law that put each star in its and mind for the single purpose, builded place and keeps it there? I would fight an altar to Liberty, the first ever built, or for every line in the Constitution as I that ever could be built, and called it the would for every star in the flag, for flag Constitution of the United States.
and Constitution will live or die together. "O marvelous Constitution! Magic parchment transforming word, maker, monitor, “I know not if the times are ripe, or if guardian of mankind! Thou hast gathered events are merely gathering to a head; but to thy impartial bosom the peoples of the soon there must come some one-some
Washington in the field or some Marshall by the powers of government itself, as well in the forum—who will sound a trumpet as from invasion by others more powerful that will once more rally us to the defense and less scrupulous than ourselves. The of the Law."
principles underlying our civic and politi
cal liberty are indelibly written into the THE DANGERS THAT THREATEN OUR FREE
Constitution of the United States, and the
nation's courts are instituted for their proDuring and since the War, and in cer
tection. tain instances some time prior to the War,
“The representative Republic erected on there have many tendencies and elements the American continent under the Consticrept into American life and government tution of the United States is a more adwhich would undermine the foundation vanced, a more just and a wiser form of stone of Liberty which our father's laid and
government than the socialistic and direct sealed with their blood.
democracy which it is now proposed to subOn the one hand, there has been a ten
stitute for it. #
To put the matter dency, as previously remarked, to depart bluntly, there is under way in the United from the republican or representative form States at the present time a definite and of government to legislation by popular determined movement to change our reprevote in such ways as are represented by the sentative republic into a socialistic democinitiative, referendum and recall, the
This attempt is making primary system of selecting candidates for while we are speaking about it. It presents office, insiduous attacks upon the Supreme itself in many persuasive and seductive Court of the United States, and other
forms. It uses attractive formulas to which forms of hasty legislation whereby spas- men like to give adhesion; but if it is sucmodic agitation of public opinion tends to cessful, it will bring to an end the form o. undermine and overreach the system of
government that was founded when our government which the makers of
our Constitution was made and that we and Declaration and Constitution so carefully
our fathers and our grandfathers have devised.
known and gloried in.
ernment in this country when we reduced “This Government was founded by men the representative to the position of a mere whose minds were fixed upon the problems delegate; when we began, as is now quite involved in the creation of political insti- commonly the case, to instruct a repretutions. They were thinking of liberty, of sentative as to what he is to do when representative government, of protection elected; when we began to pledge him, in against tyranny and spoliation, and of advance of his election, that if chosen he ways and means by which public opinion will do certain things and oppose othersmight, in orderly fashion, express itself in commonly the case, to instruct a represtatute laws, injudicial judgments and insentative from the high, splendid and digexecutive acts. The task of the founders nified status of a real representative chosen was a political task, and with what almost by his constituency to give it his experisuperhuman wisdom, foresight and skill cnce, his brains, his conscience and his best they accomplished it, is recorded history. service, and made him .a mere registering
It is a noteworthy and singular machine for the opinion of the moment, characteristic of our American government whatever it might happen to be." that the Constitution provides a means for Then, too, the necessities of the War gave protecting individual liberty from invasion an unwonted impetus to our Federal (ior