and under the provisions of Gen. Stat. 1913, sec. 7002, such estate or interest could only be created by an instrument in writing." Further, on this question, the Court said:

"Interveners contend that the provisions of the statutes with reference to the compensation and lien of attorneys override the Statute of Frauds. These statutes provide that 'a party shall have an unrestricted right to agree with his attorney as to his compensation for services, and the measure and mode thereof,' and that 'an attorney has a lien for his compensation whether the agreement therefor be express or implied upon the cause of action, and upon the interest of his client in any money or property involved in or affected by any action or proceeding in which he may have been employed.' We find nothing in these statutes inconsistent with the Statute of Frauds. Attorney and client may make such agreement, as to attorney's fees as they choose, but if they choose to agree upon a conveyance of land as part or whole of the attorney's fees, there is nothing in these statutes which expressly or impliedly provides that such agreement is not required to be in writing, as the Statute of Frauds provides. Interveners contend that under the 1917 Law the performance of the contract by the attor neys created a lien upon the title to the lands to the extent fixed by the terms of the contract, to-wit, an undivided onehalf interest therein, or, otherwise stated, that there may be a lien for the attor ney's compensation, though his compensation is to be paid in land. We are unable to adopt this theory. As stated in another part of the intervener's brief, a lien upon the land to the extent of an undivided one-half interest in the fee thereof, if it has any meaning at all, means nothing more or less than the ownership of said one-half interest. It would be mere evasion to say that the Statute of Frauds may be avoided by calling a transfer in fee a mere lien."

This view is supported by a number of cases mentioned in 21 A. L. R. 352, among which are: Jackson v. Stearns, 58 Oreg. 57, 113 Pac. 30, 37 L. R. A. (U. S.), 639, Ann., Cas. 1913A 284; Farrin v. Matthews, 62 Oreg. 517, 124 Pac. 675, 41 L. R. A. (U. S.) 184; Sprague v.

Haines, 68 Tex. 215, 4 S. W. 371, overruling

Anderson v. Powers, 59 Tex. 213; Martin v. Bateman, 111 Wash. 634, 191 Pac. 759.

THE POWERS OF A MERCANTILE AGENT THE FACTORS ACTS

By Donald MacKay

Very seldom does one see any reference nowadays to the Factors Acts, but these statutes embody a vital and far-reaching principle of English law. The recent case of Folkes v. King, to which we are to refer later, illustrates how they operate, and furnishes the occasion of our offering some. explanatory observations which we trust may be of practical service to our readers.

The general object of this branch of legislation may be said to have been to bring the law of possession of movable property, regarded as a title to dispose of it, into accordance with the general feeling and everyday usages of business men. The ordinary trade understanding is that if a man is in possession of mercantile commodities, or of documents of title, he may be assumed either to be their owner, or, if not, to be an agent having authority from the owner to dispose of them, and that, in the latter case, the owner should be the sufferer in the event of a fraudulent or improper disposition by the agent, rather than a third party transacting on the faith of the apparent authority to dispose conferred by the possession of the commodities or documents. To carry out this view to its fullest extent would be to assimilate the transfer of movable property to that of negotiable instruments; the Factors Act steers a middle course between that extreme and the principle of the common law (more particularly in England), that the purchase or pledgee of movable property of the ordinary mercantile character took, except in the case of sales in market overt, no better title than his author, and was subject to all exceptions which were pleadable against him. The Factors Acts of 1889 is a consolidating statute which repeals and reproduces the provisions of a series of Acts passed between 1823 and 1877.

A mercantile agent is defined, for the purposes of the Act, as (s. 1) "a mercantile agent having in the customary course of business as such agent authority either to sell goods, or to consign goods for the purpose of sale, or to buy goods, or to raise money on the security of goods," and the Act proceeds in Section 2 to lay down as follows the "Powers of a mercantile agent with respect to disposition of goods":

(1) Where a mercantile agent is, with the consent of the owner, in possession of goods or of the documents of title to goods, any sale, pledge or other disposition of the goods, made by him when acting in the ordinary course of business of a mercantile agent, shall, subject to the provisions of this Act, be as valid as if he were expressly authorized by the owner of the goods to make the same; provided that the person taking under the disposition acts in good faith, and has not at the time of the disposition notice that the person making the disposition has not authority to make the

same.

(2) Where a mercantile agent has, with the consent of the owner, been in possession of goods or of the documents of title to goods, any sale, pledge or other disposition, which would have been valid if the consent had continued, shall be valid notwithstanding the determination of the consent: provided that the person taking under the disposition has not at the time thereof notice. that the consent has been determined.

(3) Where a mercantile agent has obtained possession of any documents of title to goods by reason of his being or having been, with the consent of the owner, in possession of the goods represented thereby, or of any other documents of title to the goods, his possession of the first-mentioned documents shall, for the purposes of this Act, be deemed to be with the consent of the owner.

(4) For the purposes of this Act the consent of the owner shall be presumed in the absence of evidence to the contrary.

It was under that section that the ques

The plaintiff

tion in Folkes v. King arose. delivered his motor car to a mercantile agent, to be sold on commission. It was agreed beween the plaintiff and the mercantile agent that the motor car was not to be sold under £575, without the plaintiff's permission. The mercantile agent, however, sold the plaintiff's motor car without the plaintiff's permission, for £340, to a bona fide purchaser, without notice of the fraud, and converted that sum to his own use. The motor car was re-sold to another purchaser, who later sold it to the defendant. In an action by the plaintiff for the return of the motor car or its value, the defendant pleaded that the motor car had been sold to the defendant's predecessor in title by a mercantile agent who was in possession of it with the plaintiff's consent. The learned judge who tried the action found that the mercantile agent obtained possession of the motor car with the intention of defrauding the plaintiff of his property, and that at no time did he intend to carry out the arrangement he had made with the plaintiff, but that his intention was to sell it at the best price obtainable, and to use the proceeds for his own purposes. His lordship held, accordingly, that the mercantile agent could pass no title to the purchaser and that, therefore, the plaintiff could recover. It has now been held, on appeal, that notwithstanding that the plaintiff had been induced by fraud to part with the possession of the motor car, yet the possession of the motor car by the mercantile agent was possession with the consent of the plaintiff, and the mercantile agent could, therefore, give a good title to a bona fide purchaser for value without notice, and the defendant was protected by s. 2 of the Factors Act, 1889.

In delivering the leading opinion of the Court of Appeal, Lord Justice Bankes said: "Section 2 of the Factors Act provides protection in statutory form to persons who, bona fide and without notice of any want of authority on the part of a mercantile agent, have purchased goods

from the agent, he being in possession of the goods with the consent of the owner. I can see no reason why rules and principles of the criminal law are to be introduced for the purpose of putting a construction on the language of the section. What the section refers to is the consent of the owner. To establish a consent it is no doubt necessary to consider what the state of mind of the owner of the goods was with reference to the possession of them by the mercantile agent. I fail to see how far this purpose, or for any purpose of applying the section, it can be material to look into the mind of the mercantile agent, any more than it would be to look into his pocket to ascertain whether he was in a position to pay for the goods. It is not universally true that no title can be obtained from a thief, as witness a sale by a thief in market overt. that where possession of

It is admitted It is admitted goods has been

obtained by false pretenses, or where a bailee has stolen them, a title by a bona fide purchaser can be made under the section. If so, why not where the goods have been stolen by a trick? The question of the guilt of the alleged thief, where his intention is material, is, as it appears to me, so entirely immaterial in considering whether a title has been made under the Factors Act to the goods which it is alleged that he has stolen, that the two considerations should be kept entirely distinct. To allow the one to be defeated by a consideration of the other is, in my opinion, to sweep away a great part of the protection which the Factors Act was intended to provide, and which, when incorporated into a statute, was not introducing any new principle, but merely continuing one long known to the Mercantile law."

These observations are certainly in accord with the purpose and trend of the Factors Acts which are that an ostensible mercantile agent ostensibly in possession of goods can give a good title in the ordinary course of business to a bona fide purchaser.

AMERICANISM

THE DECLARATION OF INDEPENDENCE AND

THE CONSTITUTION

Our Constitution is the Declaration of Independence writ large as the basic law of our American form of Government. Having won their national Independence, the colonists set about to establish a government on the foundations of liberty and equal justice which was voiced in the Declaration. They set about to form a national government which should above all else, in the words of the Preamble to the Constitution, secure the blessings of liberty to themselves and to their posterity. The task was not an easy one because it was necessary to have a strong central government for the sake of protection from foreign powers, and at the same time to guarantee to each citizen as great liberty of action and freedom from governmental interference as was possible.

The Constitution, adopted in 1788, gave greater liberty and greater power to the citizens of the United States than any government had ever before given to the common people. It provided, furthermore, for amendments by means of which even greater liberty has been secured.

At the present time, the Constitution, with its amendments, guarantees: Freedom of religious belief, freedom of speech, freedom of the press, the right to petition, the right to keep and bear arms, the right to vote without abridgment of this right because of race, color, sex or previous condition of servitude. In short, the Constitution guarantees to every citizen, high or low, absolute freedom in thought and conduct, so long as he does nothing which interferes with the rights or liberties of a fellow citizen.

The Preamble to the Constitution and the first ten amendments, which constitute our Bill of Rights, the leading provisions of which are above set forth, are the expressions of the spirit and ideals that were voiced in the Preamble to the Declaration.

The Bill of Rights embodies "certain inalienable rights" which American citizens have enjoyed since the foundation of our government, which are as common as the air we breathe and which are, therefore, not appreciated as they should be. Can any one estimate the "blessings of liberty" that have been vouchsafed by the provisions imbedded in the Constitution, which protect the rights of private property, guarantee freedom of speech, freedom of the press and freedom of religious belief, insure the right of trial by jury, abolish all forms of nobility or social caste and give every citizen an equal chance in the race of life?

With such a basic law as a protection of the people even against themselves, which cannot be changed by popular vote or a majority of a State Legislature or Congress, but only by the vote of at least threefourths of the States, and with the wonderful progress our country has made under this Constitution, it behooves us to support it loyally and defend it against all enemies in whatever form the attack may come; to hold fast to it as the very Ark of our Covenant and to heed well the admonition of Scripture, "Remove not the ancient landmark which thy Fathers have set."

During an address on "The Constitution Between Friends," delivered before the Missouri Bar Association at Kansas City, Missouri, September 26th, 1913, Henry D. Estabrook paid the following magnificent tribute to the Constitution:

"And so, on this great continent, which God had kept hidden in a little worldhere, with a new heaven and a new earth, where former things had passed away, the people of many nations, of various needs and creeds, but united in heart and soul and mind for the single purpose, builded an altar to Liberty, the first ever built, or that ever could be built, and called it the Constitution of the United States.

"O marvelous Constitution! Magic parchment transforming word, maker, monitor, guardian of mankind! Thou hast gathered to thy impartial bosom the peoples of the

earth, Columbia, and called them equal. Thou hast conferred upon them imperial sovereignty, revoking all titles but that of man. Native and exotic, rich and poor, good and bad, old and young, the lazy and the industrious, those who love and those who hate, the mean and lowly, the high and mighty, the wise and the foolish, the prudent and the imprudent, the cautious and the hasty, the honest and the dishonest, those who pray and those who cure these are God's children-these are thy rulers, O Columbia. Into our hands thou hast committed the destinies of the human race, even to the omega of thine own destruction. And all thou requirest of us before we o'erstep boundaries blazed for guidance is what is required of us at every railroad crossing in the country: Stop. 'Stop. Look. Listen. Stop and think. Look before and after and to the right and left. Listen to the voice of reason and to the still, small voice of conscience.

"If the zealot, impatient of the wise caution and delay enjoined by the Constitution, would break down its barriers by hasty action, he should be compelled, if only as penance, to study the Constitution and to know all the circumstances out of which it grew, the quality of the men who fashioned it, as well as the quality of the work accomplished by them. He should be taught these things in school. We have deposed the Bible in our public schools; would any American object if we substituted the Constitution? Why should our schools have a 'Flag Day?' Why should a teacher point her pupil to the flag and the stars enskied on it, as the symbol of human liberty, without telling him of the tremendous Law that put each star in its place and keeps it there? I would fight for every line in the Constitution as I would for every star in the flag, for flag and Constitution will live or die together.

"I know not if the times are ripe, or if events are merely gathering to a head; but soon there must come some one-some

in the forum-who will sound a trumpet that will once more rally us to the defense of the Law."

THE DANGERS THAT THREATEN OUR FREE

INSTITUTIONS

During and since the War, and in certain instances some time prior to the War, there have many tendencies and elements crept into American life and government which would undermine the foundation stone of Liberty which our fathers laid and sealed with their blood.

On the one hand, there has been a tendency, as previously remarked, to depart from the republican or representative form of government to legislation by popular vote in such ways as are represented by the initiative, referendum and recall, the primary system of selecting candidates for office, insiduous attacks upon the Supreme Court of the United States, and other forms of hasty legislation whereby spasmodic agitation, of public opinion tends to undermine and overreach the system of government which the makers of our Declaration and Constitution so carefully devised.

In his remarkable book, "Why Should We Change Our Form of Government?" Nicholas Murray Butler says.

"This Government was founded by men whose minds were fixed upon the problems involved in the creation of political institutions. They were thinking of liberty, of representative government, of protection against tyranny and spoliation, and of ways and means by which public opinion might, in orderly fashion, express itself in statute laws, injudicial judgments and in executive acts. The task of the founders was a political task, and with what almost superhuman wisdom, foresight and skill they accomplished it, is recorded history.

It is a noteworthy and singular characteristic of our American government that the Constitution provides a means for protecting individual liberty from invasion

as from invasion by others more powerful and less scrupulous than ourselves. The principles underlying our civic and political liberty are indelibly written into the Constitution of the United States, and the nation's courts are instituted for their protection.

"The representative Republic erected on the American continent under the Constitution of the United States is a more advanced, a more just and a wiser form of government than the socialistic and direct democracy which it is now proposed to substitute for it. To put the matter bluntly, there is under way in the United States at the present time a definite and determined movement to change our representative republic into a socialistic democracy.

This attempt is making while we are speaking about it. It presents itself in many persuasive and seductive forms. It uses attractive formulas to which men like to give adhesion; but if it is successful, it will bring to an end the form o government that was founded when our Constitution was made and that we and our fathers and our grandfathers have known and gloried in.

"We began the destruction of the fundamental principles of representative government in this country when we reduced the representative to the position of a mere delegate; when we began, as is now quite commonly the case, to instruct a representative as to what he is to do when elected; when we began to pledge him, in advance of his election, that if chosen he will do certain things and oppose otherscommonly the case, to instruct a representative from the high, splendid and dignified status of a real representative chosen by his constituency to give it his experience, his brains, his conscience and his best service, and made him a mere registering machine for the opinion of the moment, whatever it might happen to be."

Then, too, the necessities of the War gave an unwonted impetus to our Federal Gov