CURRENT EVENTS. One of the many grounds urged by his opponents against the election of the Honourable John W. Davis to the office of President of the United States is that because he has been solicitor for the Morgans he would, if elected, be especially amenable to the control of Wall Street. This was anticipated by his supporters before his nomination as a candidate, and he was formally advised that it would be well to sever his professional connection with the Morgans. Mr. Davis made the following remarkable and most commendable reply: Since the law is a profession and not a trade, I conceive it to be the duty of the lawyer, just as it is the duty of the priest or the surgeon, to serve those who call upon him unless, indeed, there is some insuperable obstacle in the way. I am vain No one in all this list of clients has ever controlled, or fancied that he could control, my personal or my political conscience. enough to imagine that no one ever will. The only limitation upon a right-thinking lawyer's independence is in the duty which he owes to his clients, once selected, to serve them without the slightest thought of the effect such a service may have upon his personal popularity or political fortunes. Any lawyer who surrenders this independence or shades this duty by trimming his professional counsel to fit the gusts of popular opinion, in my judgment, not only dishonours himself but disparages and degrades the great profession to which he should be proud to belong. You must not think me either indifferent or unappreciative if I tell you in candor that I would not pay this price for any honour in the gift of man. I do not challenge the accuracy of your political diagnosis. Fortunately, as I think, the decision as to my own availability or unavailability is one that I am not called upon to make and do not seek to influence, so, even in spite of the alluring pictures that you paint, I must stand by my philosophy. What is life worth, after all, if one has no philosophy of his own to live by? If one surrenders this to win an office, what will he live by after the office is won? Tell me that! Believe me, cordially yours. (Sgd.) JOHN W. DAVIS." At the annual dinner of the Canadian Club of Boston, held on the 8th instant, the Honourable J. H. Clarke, retired Judge of the Supreme Court of the United States, asserted that "it is sheer folly to think that this great republic may not change or disappear in another great world war." He urged that the United States become a member of the League of Nations, saying mankind will not endure a form of government that will not protect it from war. "War is so destructive," Judge Clarke declared, "that unless we find a way to end it, it will end us," asserting that he would devote his life to cultivate public opinion to force the government to take a great nations place in the great attempt to organize a world peace." * * * * We clip the two following items from a recent issue of Law Notes, published in England: "From general talk, it seems that the American and Canadian lawyers have had "a good time." The Inns of Court and the Law Society showed them much, so to speak, official hospitality, but we hear that there has been much private hospitality in addition, and many friendships have been formed and cemented: next year, we understand, the Continent and Scotland will have a "slump" so far as English lawyers are concerned: they are all going to see their new American and Canadian friends." * * "To some minds the job of being a judge must be very fascinating. Lord Darling not only helps in the Judicial Committee, but last month sat with Mr. Justice Shearman to form a Divisional Court. If all retired judges showed a similar desire to return to the Bench the nation might be spared the expense of appointing two extra judges, which will be inevitable next Sittings. Unfortunately, there are not many retired judges who could help owing to age." In Sir John Salmond, the well-known New Zealand jurist, died last month at the age of sixty-two years. He was born in England, and educated in New Zealand and later in the University of London. 1887 he was admitted to the New Zealand Bar. In 1891 he published the first edition of his justly celebrated Essays in Jurisprudence and Legal History." In 1897 he was appointed professor of law at the University of Adelaide, returning later to New Zealand, where, after holding the office of Solicitor-General, he was appointed to the bench of the Supreme Court. He was a member of the Disarmament Conference at Washington. VOL. II. THE CANADIAN BAR REVIEW TORONTO, NOVEMBER, 1924. No. 9. NOTES ON SALE OF GOODS ACT. Section 1 (g) The expression "future goods" means goods to be manufactured or acquired by the seller after the making of the contract of sale. 1. Future goods distinguished from goods in potential ownership of seller. It will be necessary to distinguish "future goods" as defined in this section from goods that are considered as being in the potential ownership of the seller by reason of their being the natural produce or expected increase of something already owned or possessed by the seller. The former obviously cannot be the subject of an immediate sale; they can only be the subject of an agreement to sell. When they come to be owned by the seller the question will arise and will be the subject of discussion later whether they pass to the buyer at law or in equity only, and, if in equity, what further conditions must happen, if any, that will confer upon the buyer a title to the goods at law. In the case of goods potentially existing and owned in that sense by the seller, the buyer gets a legal title and the only question that can arise is the question when does he get it. If the property is not yet in existence it seems absurd to say that it passes to the purchaser when the agreement is made. If it passes at that time. it can only do so in a fictitious sense. Mr. Benjamin, referring to this subject said, "A man may sell things which although not yet in existence are the natural produce or expected yield of something already belonging to the vendor. Thus a man may sell the crop of hay to be grown on his field, the wool to be clipped from his sheep, the milk that his cows will yield in the coming month and the sale is valid. Otherwise as to the wool of any sheep or the milk of any cows he may buy within the year." This learned author did not 1 The section numbers refer to the Act as passed by the legislature of Nova Scotia. These notes are not written in a dogmatic spirit, but with the view of eliciting opinions on some debatable questions arising on the interpretation of the Act. B. R. C.B.R.-VOL. II.-34 state the principle with any degree of precision and few of the cases he refers to are very modern. One of these is Reed v. Blades, in which there was a covenant by the lessee of an opera house to replace all goods worn out and that all newly purchased goods should be the property of the lessor. Lord Mansfield said, "A covenant will never transfer the after-acquired property." There is a note to the case to this effect: "Otherwise, if the covenant had been respecting something which was to arise out of the estate of the covenanter, and which, therefore, he might be said to have potentially in him. Note the distinction." Mr. Parsons therefore says," "a valid sale may be made of the wine that a vineyard is expected to produce or the grain that a field is expected to grow or the milk that a cow may yield during the coming year, or the future young born of a female animal then owned by the vendor." The owner of the vineyard, the field, the cow or other female animal is in such case in the potential ownership of the wine, the grain, the milk or the offspring. In Kerr and Butterworth's edition of Benjamin the learned editors refer to Grantham v. Hawley, as the leading case on the subject. The plaintiff's predecessor in title in demising land had covenanted as lessor with the lessee his executors and assigns, that it should be lawful for him to take and carry away such corn as should be growing upon the ground at the end of the term. The lessee's executor sowed corn and at the end of the term sold it to the defendant. The court decided against the plaintiff saying "that the property and very right of the corn, when it happened, was past away; for it was both a covenant and a grant." They proceed to say that "though the lessor had it not actually in him, nor certain, yet he had it potentially for the land is the mother and root of all fruits. Therefore he that hath it may grant all fruits that may arise upon it after, and the property shall pass as soon as the fruits are extant. A parson may grant all the tithewool that he shall have in such a year, yet perhaps he shall have none. But a man cannot grant all the wool that shall grow upon his sheep that he shall buy hereafter, for there he hath it neither actually nor potentially." The editors proceed to say in effect that the distinguishing characteristic of a sale of things potentially owned is being ipso facto identified upon coming into existence and there being no necessity for any appropriation by either party for the purpose of identification, an intention may be presumed that the property shall pass when the chattel comes into existence. But as to the certainty of identification there can be no difference between goods potentially owned and any other case of the sale of future goods. Previously to the decision in Reeves v. Barlow it used to be held that an agree ment to sell or words importing a sale of after-acquired property conveyed only an equitable title, but they did not confer even such a title unless the goods were clearly identified. The distinguishing feature in the case of goods potentially owned cannot, therefore, be found in the fact of their identification. It is simply that they are the produce of things already in existence, whether they must necessarily be the natural produce or not will be considered in the next following paragraph. 2. Does potential ownership extend to goods produced by labour from goods potentially existing? The probable answer is in the negative. As the high authorities referred to in the foregoing paragraph remind us that the rule laid down in Grantham v. Hawley seems to contemplate only the natural produce of actually existing things. They refer to the case of Langton v. Higgins in which there was a sale of all the crop of peppermint oil which might be produced on a particular farm at a price per pound, the buyer to advance money on account. On the same day the seller also gave the buyer a bill of sale assigning among other things all future crops of peppermint until the repayment of the advance. No contention was made that this peppermint so produced passed to the purchaser as something potentially owned by the vendor at the time of making the agreement. On the contrary the enquiry was whether enough had been done in the way of appropriation by the vendor to pass the property. It was held that so much of the oil as had been poured into the bottles sent by the purchaser became the purchaser's property by appropriation to the contract, just as it had been held in Aldridge v. Johnsons that so much of the barley bargained for as had been put into the sacks sent by the purchaser had become the purchaser's property. Had the oil of peppermint been regarded as in the potential ownership of the vendor it would have become the purchaser's property eo instanti that it was produced without any such appropriation as was held necessary to pass the property. (h) The expression "goods" includes all chattels personal other than things in action and money; the term includes emblements, industrial growing crops, and things attached to 12 Q.B.D. 436. Hobart, 132. 4 H. & N. 402; 28 L.J. Ex. 252. |