Syllabus.

State to pass laws prohibiting and punishing extortion, and, within reasonable limits, to define what shall be deemed extortion.

The charter of this corporation is, beyond a doubt, a contract, under the adjudged cases in this and other States, by which the corporation acquires the powers and functions to transact such business in the mode prescribed; but it is the opinion of a majority of the court that all this is, by necessary implication, subject, as all citizens are, to the legislative power of the State to define, prohibit and punish extortion. The reasons and authorities leading to this conclusion are presented and discussed in the case of Ruggles v. The People, 91 Ill. 256, and this case must be governed by that. The judgment must be affirmed.

Judgment affirmed.

The writer of this opinion did not concur in the decision in that case, and does not concur in this.

FRANKLIN D. GRAY

v.

FRANCIS AGNEW.

Filed at Ottawa March 29, 1880.

1. APPEAL from an Appellate court-as to a review of questions of fact. Where the certificate of the Appellate Court, on an appeal to this court, finds no facts in the case, but only states that certain specific evidence was heard in the trial court, and that certain other evidence tending to prove the issues on each side was introduced, this court will not be bound by such certificate, even if the finding be such as is required by the statute to be certified by the Appellate Court, further than as showing the evidence tended to prove the issues.

2. But where the judgment of the trial court, in a suit upon a replevin bond, in which the issues involved the question of the ownership of the property replevied, has been affirmed in the Appellate Court, this court, on an

Statement of the case.

appeal from the Appellate Court, will regard such judgment of affirmance as a finding of the facts as they were found by the jury, and will not examine the evidence to see whether it sustains the verdict.

3. FACTOR-power to pledge the property of his principal for his own debtnotice estoppel. A power to sell such as is possessed by a factor or broker appointed for the purpose, can only be executed by way of sale, and does not justify a disposition of the property in any other manner. A factor, therefore, has no authority to pledge the goods of his principal as a security for a debt due from himself, even though the creditor has no notice of his character as factor. So if the factor attempts to make such pledge and delivers the goods to the pledgee, the owner may recover them in an action of replevin.

4. Nor would the fact that the consignor invoiced the goods to the person so making the pledge, as purchaser, and not as factor, and that the consignor so directed, for the purpose of concealing the fact that the goods were to be sold on commission from an association of which the consignor was a member and which prohibited the sale of such goods on commission, operate to estop the owner from claiming the goods as against the pledgee, the latter having no knowledge of such facts at the time he received the pledge and his action in respect thereto having in nowise been influenced by their existence.

APPEAL from the Appellate Court for the First District; the Hon. THEO. D. MURPHY, presiding Justice, and the Hon. GEO. W. PLEASANTS and Hon. JOSEPH M. BAILEY, Justices.

This was an action of debt, by Francis Agnew, for the use of Henry B. Horton, against Henry Lawrence & Sons, and Franklin D. Gray, upon a replevin bond, brought in the circuit court of Cook county, and tried before the Hon. JOHN G. ROGERS, Judge, presiding.

The defendants pleaded: 1. Non est factum. 2. Nil debet. 3. That there had been no trial and judgment on the merits in the action of replevin, and that the goods and chattels at the time when, etc., were the property of Henry Lawrence and others, and not of Henry B. Horton, as supposed, and therefore plaintiff was entitled to recover nominal damages only. 4. That there had been no trial and judgment on the merits of the case, and that the said goods and chattels were at the time when, etc., the property of W. H. Moore, assignee in bankruptcy of E. A. Bigelow & Co., and not of said Horton,

Opinion of the Court.

and therefore plaintiff was entitled to recover only nominal damages. 5. That the plaintiff had been only nominally damnified.

The similiter was added to the first and second pleas. As to the third and fourth pleas the plaintiff replied that the goods and chattels were at the time when, etc., the property of Henry B. Horton, and not of Lawrence & Sons, and of Moore, assignee, etc.; and further, as to said pleas, that the goods and chattels were Horton's, and in his possession, and as to the fifth plea, that the goods and chattels were Horton's, and in his possession, and that he sustained damage to the amount of $4000 by the taking them away. These replications concluded to the country.

A trial was had, resulting in a verdict and judgment in favor of the plaintiff for $9000 debt and $3,705.56 damages, from which judgment the defendant Gray appealed to the Appellate Court for the First District, in which latter court the judgment of the circuit court was affirmed.

Mr. MELVILLE W. FULLER, for the appellant.

Messrs. GARDNER & SCHUYLER, for the appellee.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

The certificate of the Appellate Court finds no facts in this case. It only certifies that certain specific evidence was heard in the court trying the issues, and that certain other evidence, tending to prove the issues on each side, was introduced. This being true, even if this was such a finding as the statute requires to be certified by that court to this, we could not be bound by it further than to show the evidence tended to prove the issues. But, inasmuch as the Appellate Court affirmed the judgment of the circuit court, we must regard the judgment of the Appellate Court as having found. the facts as they were found by the jury. We can not, there

Opinion of the Court.

fore, examine the evidence to see whether it sustains the verdict.

We can, therefore, only look to the evidence to see whether it tended to prove the issues, and whether, on that evidence, the court properly instructed the jury, or erred in admitting or rejecting evidence, or in other rulings in the progress of the trial. The Appellate Court held there was no error in the giving or refusing of instructions. The contest grows out of appellee having loaned money to E. A. Bigelow & Co. and renewal notes for prior indebtedness from them to him, and to secure which they pledged to him a quantity of rope, cordage, etc., which was delivered to and received by him. Afterwards, Henry Lawrence & Sons, claiming to be the owners of the goods thus pledged and that they were held by Bigelow & Co. as factors, replevied them, but having obtained possession, they afterwards dismissed the suit, and this action was brought on the replevin bond given when the replevin suit was brought. A recovery was had.

We shall first consider whether the court erred in giving this instruction: "The court instructs the jury that if they believe, from the evidence, that the firm of Henry Lawrence & Sons billed or invoiced the property in question and other property of the same nature to the said firm of E. A. Bigelow & Co. in such a manner as would indicate that the same had been actually sold to said Bigelow & Co. by said Lawrence & Sons, and that said defendants Lawrence, or either of them, directed said Bigelow & Co. to deal with said property so billed or invoiced as their own, and that there was nothing in or about the place of Bigelow & Co. to notify parties dealing with them of their relation to said Lawrence & Sons in regard to said property, which was known to the Lawrences, then as to parties dealing with said Bigelow & Co. in good faith, either by receiving said property, or any part thereof, as security or otherwise, the said defendants Lawrence would be estopped from claiming the title thereto, even though the jury may further believe, from the evidence,

Opinion of the Court.

that the property so received was consigned to said Bigelow & Co. under the contract read in evidence in this case, if said Horton had no notice of said contract. And the court instructs the jury, as a matter of law, that where one of two innocent parties must suffer, it must be the one who, by his own act, has enabled his agent or broker to commit a wrong."

This instruction is faulty in several particulars. It states an incorrect rule of law governing factors or commission men. The law governing the rights of consignors and factors long and well established, both in Great Britain and this country, is thus stated by Paley on Agency (Dunlap's ed.), , p. 213: "A power to sell, such as is possessed by a factor or broker appointed for the purpose, can only be executed by way of sale, and does not justify a disposition in any other manner. A factor, therefore, can not dispose of the goods in the way of barter, and it is clearly settled that he has no authority to pledge the property entrusted to him. Nor is it of any consequence that the pledgee is ignorant of the factor not being the owner." In support of the propositions numerous cases are referred to in the notes.

In Story on Bailments, sec. 326, it is said that "In America the general doctrine, that a factor can not pledge the goods of his principal, has been frequently recognized.”

And Kent, in his Com., vol. 2, p. 625-28, says, "Decisions in this country have fully settled the doctrine that a pledge by a factor of his principal's goods is wholly tortious and the owner may recover their whole value of the pledgee without any reduction or recoupment for his claim against the Numerous cases are referred to which support the

factor."

rule.

Story, in his work on Agency, sec. 113, states the rule thus: "On the other hand, factors have no incidental authority to barter the goods of their principals, or to pledge such goods for advances made to them on their own account or for debts due by themselves."

See Wharton on Agency, sec. 748, to the same effect as