>

v.

such agreements. The decisions in Roberts & Co. RECOVERY OF DEPOSITS ON AGREE

v. Salvesen & Co. (cit.), and in The Commercial MENTS “ SUBJECT TO FORMAL Bank of Scotland v. Beal (1890, 18 R. 80), the CONTRACT."

only reported decisions of the Scottish Supreme

Courts on the subject, were expressly decided By J. R. HALDANE, M.A., LL.B., Advocate, Sheriff-Substitute, Stornoway.

on this ground. So that, although there is no

reported Scots case where the details of the Bargains, whether for a sale or in any other bargain were thus left to implication, the same form of contract, frequently contain a provision rule would no doubt apply in Scotland because for a deposit of a sum of money, either already the principles which govern the other implied made or to be subsequently made, which is to details are the same. There is one distinction, be forfeited in the event of the non-fulfilment however, which must be noted between the of the bargain. Various legal questions arise Scots and the English law, arising out of the as to the disposal of the deposit when the difference between the two systems in regard transaction has fallen through. A recent to the effect to be given to penalty clauses in English decision (Chillingworth v. Esche, Court contracts. It is now settled law in both England of Appeal, Pollock M.R., Warrington and and Scotland that in the ordinary case, when Sargant L.JJ., reported in "The Solicitors' nothing further is said to expressly define

' Journal and Weekly Reporter,” 3rd November the nature of the deposit,” it is neither 1923, Vol. LXVIII. p. 81) raises some interesting a penalty nor liquidate damages. It is in a questions as to the effects of certain decisions category by itself, and it is not ordinarily of the Scottish Courts affecting some aspects subject to modification. (Commercial Bank of of the matter. If there is a completed agree- Scotland v. Beal, cit., and Gloag on“ Contract, ment which remains binding on the parties p. 799, approved by the Lord President in after the transaction has fallen through, the Roberts & Co. v. Salvesen & Co., cit., p. 808.) questions involved present few difficulties. The But, of course, here again the parties are quite deposit will be disposed of in conformity with at liberty to expressly stipulate that it is either the terms of the bargain ; and the parties may a “penalty” or “liquidate damages,” or, as

; make any bargain, in itself legal, which they Lord Skerrington suggested in Roberts choose about it. This was expressly recognised Salvesen (at. p. 813), in an exceptional case in the English case referred to. The Master the whole nature of the provisions as to the of the Rolls quoted with approval in this deposit might conceivably indicate that it is connection a dictum of Lord Justice Bowen in in reality either a penal provision or liquidated the case of Howe v. Smith (27 Ch. D. 89) that damages rather than a guarantee of serious “ Persons may make exactly what bargain intentions. In either case it would be subject they please as to what is to be done with the to modification according to the usual rules money deposited.” And in a Scots case where of law in regard to penalties and liquidate the whole question as to the nature of such damages ; and if it were in reality a penalty deposits was carefully reviewed Lord President the distinction which is drawn between these Strathclyde expressed the same view. “In two classes in Scots law, but not in English, adhering to the Lord Ordinary's judgment,” would create a difference in the way in which he said, “ I think we are merely asserting once it would fall to be treated in the two countries. more that a bargain made by business men is In Scotland it would be set aside, and only to be fulfilled according to its terms." (Roberts the actual, proved damage, if any, would be & Cooper v. Salvesen & Co., 1918 S.C. 794 at allowed. p. 808 ; 1918, 2 S.L.T. 160.)

The law is fairly clear also in the case where If the bargain, however, contains no express it is quite clear that the agreement between detailed provisions as to the disposal of the the parties is of imperfect obligation--that is deposit—if it is merely described as a deposit to say that, for one reason or another, either and nothing further is said about it-it is well party is entitled to resile from it without paying decided by a series of English decisions (referred damages; that there is locus pænitentiæ-as, to in both the Scots and the English cases cited for instance, if the agreement is a merely verbal above) that the bargain means that, if it is one in regard to heritage, or if there is a clearly the depositor's fault that the transaction is expressed stipulation that it is not to come into not carried through, he is to forfeit the deposit force until it is reduced to formal writing. in full to the other party, and, if it is the other There is no reported Scots case where this party's fault, the depositor recovers his deposit question arose, but this was the point expressly in full. It is a guarantee that the depositor decided in the English case of Chillingworth v. means business. It is quite settled law that Esche, above referred to. It was there held the Scots law and the English are identical that, in the absence of express stipulation to in regard to the meaning of a “deposit" in the contrary, a suspensive condition referring

a

generally to the agreement applied also to the into a formal lease whenever asked, embodyprovisions as to the deposit. Consequently, ing the terms of their contract” (per Lord if either party exercises his right of resiling, the President Inglis at p. 659). It was not whole contract becomes void ab initio, and the a condition at all. It was merely the expresdeposit, having been paid in respect of a contract sion of a right arising out of the contract which is void, is returnable to the depositor. for the performance of an

act necessary There is no peculiarity in the English legal for the proper carrying out of the bargain. principles on which this decision was arrived This consideration did not arise in the at which would make any distinction in Scots English case of Chillingworth v. Esche, owing law. The provision as to the deposit is merely to the peculiarities of the English law in regard a subsidiary provision of a composite bargain to the transference of property in freehold which is one organic whole. But here again it lands. A formal written deed or contract must not be overlooked that the parties might is apparently unnecessary to effect the transexpressly stipulate otherwise, or the terms of ference. Again in Smeaton v. St. Andrews the bargain itself might indicate that the Police Commissioners (1868, 7 M. 206; revd. suspensive condition did not apply to the deposit, 1871, 9 M. (H.L.) 24), the agreement was one and this was expressly recognised in that for the settlement of a litigation; and although decision. Even in the case of a verbal agree- it was one of the terms of the agreement that it ment as to heritage there appears to be no was to be reduced to a formal deed, there were reason why a separable and completely binding no express terms implying that the acceptance agreement as to the forfeiture of the deposit of the agreement by either party was subject by the resiling depositor should not be made. to the execution of such a formal deed, and the (See, for instance, Mungall v. Bowhill Colliery full terms of the agreement were already Co., 1904, 12 S.L.T. 80, 262.) But in the embodied in writing, and approved, and nothing absence of such an express or clearly implied remained to be adjusted. The decision of the term of the agreement the other party has no House of Lords, indeed, was that the pursuer title or right to retain the deposit if the right was entitled to insist on the execution of the of resiling is exercised. He has not, of course, formal deed. Here again the stipulation as to even a lien over it for any claim he might have a formal deed was not a condition at all, but for damages based on any fraud of the depositor a positive provision of the agreement. In in inducing him to negotiate.

Dewar v. Ainslie (1892, 20 R. 203) the agreeIn the English case of Chillingworth v. Esche, ment also was for the settlement of a litigation; however, the fact which decided the question but in this ase the decision proceeded on the that it was open to either party to resile from ground that there was no agreement at all the bargain (which was one for the purchase that the bargain which had been made must of a freehold property) was that the acceptance be executed in writing although the parties of the bargain by the depositor (the purchaser), did in fact subsequently attempt to reduce it which was by letter, contained the words to a formal document and fell out as to the subject to a proper contract to be prepared detailed terms. The Lord Justice-Clerk said by the vendor's solicitors." It was held to be (p. 208), “ It is a case quite similar to those well settled in English law that such words in which we have to deal with a document not suspended the operation of the bargain until holograph or tested and containing a record a formal contract should be executed. At of an agreement, where the only question is first sight there appears to be a divergence what interpretation we are to put on that between the English and the Scottish decisions agreement. Where the parties cannot agree in regard to the effect of such expressions. A upon the precise terms of the subsequent closer examination of the Scots cases, however, formal agreement, the Court must adjust them, would not appear to support this impression. with the assistance of a man of business." There were specialities in each of the Scottish Anderson v. Dick (1901, 4 F. 68 ; 9 S.L.T. 225)

Thus in Erskine v. Glendinning (1871, was a similar case, where it was contested that 9 M. 656) the bargain was for a lease, and the an informal agreement for the settlement of acceptance by the landlord was subject to an action must be taken to be subject to the lease drawn out in due form.' It was execution of a formal deed. This contention held that this was not a suspensive con- was expressly repelled, and the decision was dition, importing locus poenitentice pending expressly on the ground that the informal the execution of a formal lease ; but the agreement contained no reference to the ratio of this decision was that It did not execution of a more formal document. These require the offerer to consent to that ” are all the reported cases in which the question

. (term of the bargain), or the acceptor to has been raised, and it appears that the sound stipulate for it. The landlord was entitled interpretation of them is that they are instances to require that his tenant should enter of the exceptions which prove a general rule that

66

cases.

ING

OUT

OF AND

IN

THE

COURSE

OF

THE

an express stipulation in an informal agreement Muirhead Henderson, B.L., Glasgow ; Charles which does not in any case, owing to its subject- Hornal, Edinburgh; William Craig Husband, matter, imply an obligation to give a formal Dunfermline ; James Hutcheon,

Hutcheon, Dundee; title, to the effect that it is to be “subject Robert Clarke Jack, Jedburgh ; John Bryce to "the execution of a formal writing, operates Jamieson, B.L., Newmilns ; Henry Macdowall in the absence of indications of a contrary Hunter Logan, Lochwinnoch ; John Forsyth intention as a suspensive condition importing Maillie, Glasgow; Robert May, Motherwell; locus poenitentiæ. The Scots law would thus Frederick Leonard Morrison,

Morrison, Edinburgh ; appear to be the same as the English in this James William Kinniburgh Morton, B.L., respect, and the party who paid a deposit on Edinburgh; Mary Ann Mowat, Edinburgh ; an agreement “subject to formal contract " William Munro, M.A., LL.B., Glasgow; John would normally be entitled to repayment of it Cassels Pinkerton, B.L., Glasgow; Alexander if the transaction fell through. This, of course, Pratt, Edinburgh ; Alexander Rooke, Glasgow; is quite apart from any rights arising from Norman Sutherland Rose, M.A., LL.B., Aber“personal bar” created rei interventu or by deen ; Andrew Ryrie, M.A., LL.B., Kirkcaldy; acquiescence. It refers only to the rights of Leith Sangster, Edinburgh ; James Donald

. parties ex contractu. The mere payment or Scanlan, B.L., Glasgow ; Archibald Campbell acceptance of the deposit, however, cannot Scott, Edinburgh ; Robert Sutherland Simpson, raise any questions of “personal bar.”

Carnoustie ; Robert Thomson Stewart, M.A.,
LL.B., Lanark; Robert Johnson Wightman,

North Berwick; Olivia Elliot Yuill, Glasgow.
LAW AGENTS' EXAMINATIONS.
The half-yearly Examinations in General

DECISIONS IN THE ENGLISH Knowledge conducted by the Examiners of

COURTS. Law Agents were held recently in Edinburgh and Glasgow, and the results have now been Upton v. Great Central Railway Co. intimated to the candidates. For the First WORKMEN'S COMPENSATION- ACCIDENT ARISExamination in General Knowledge, which qualifies for apprenticeship, 75 applicants EMPLOYMENT”—RAILWAY LABOURER SLIPPING presented themselves. Twenty-four of these ON PLATFORM WHEN RETURNING HOME FROM have passed, or been found qualified by sub- WORK—WORKMEN'S COMPENSATION ACT, 1906 stitute certificates, in all the subjects, and 33 (6 EDW. VII. CAP. 58), SECTION 1 (1).-On 17th have been notified as being partially qualified. September 1922 Alfred Upton, a foreman For the Second Examination in General Know- labourer in the employment of respondents, ledge 86 candidates entered. One has passed was sent by them from Guide Bridge to work in four subjects; 6 in three, 14 in two, and 38 on a water-main some distance from Dunford in one subject. The papers of the candidates Bridge Station. After he had finished his in this Examination were as follows: Mathe- work he went to Dunford Bridge Station to matics 24, passed 9; Logic 36, passed 16; get a train by which to return to Guide Bridge. Latin 31, passed 16; French 26, passed 11; He was waiting with other workmen for the train. German 1, passed 1 ; Italian 1, failed ; Book. It was a wet and windy day. When the train keeping 45, passed 36.

came in, Upton hurriedly crossed the platform At the quarterly Examination in Law con- to reach it and, while crossing, slipped and ducted by the Examiners, which was held in fell. As a result of his fall he injured his knee. Edinburgh on 21st to 24th January, 43 candi- Septicæmia set in and he died. His widow dates presented themselves for examination. applied to the respondents for compensation. Twenty-nine of these were examined in all the The respondents conceded that Upton was in subjects and 21 passed ; and 14 graduates in the course of his employment at the time of law holding the Degree of LL.B. or B.L. of the the accident, but maintained that the accident Scottish Universities were examined in Court did not arise out of his employment. The Procedure and all passed. The following are County Court judge held that the accident did the successful candidates :

not so arise, and the Court of Appeal (Lord John Anderson, Twynholm, Kirkcudbright. Sterndale M.R. and Scrutton L.J., Warrington shire; Elizabeth Barnett, M.A., LL.B., Aber- L.J. dissenting) affirmed that decision. Held deen; John Bernard, B.L., Glasgow ; William that the accident was one arising out of and in Abercrombie Caldwell, B.L., Paisley; John the course of the employment, and that the Fraser Darroch, Leith; Neil Macdonald appellant was entitled to compensation. DeDonaldson, Glasgow ; John MʻIntyre Ferguson, cision of the Court of Appeal ([1923] 2 K.B. 879) Glasgow; John Clanachan Gardner, B.L., reversed.-House of Lords (Viscount Haldane, Stonehaven; James George, B.L., Glasgow ; Lords Dunedin, Atkinson, Sumner, and BuckThomas Louttit Gibson, Edinburgh ; James master).-18th December 1923.

2

16

THE LATE MR A: J. F. WEDDERBURN, naturally did not care to devolve more on

, ,

assistants than he could help, and his untimely S.S.C., EDINBURGH.

death at the age of fifty-five was really due to The legal profession has suffered a great loss overwork and personally undertaking responsiby the recent death of Mr A. J. F. Wedderburn, bilities more than even his robust frame could S.S.C. An Aberdonian born and bred, he stand in his very large and varied business. possessed in a high degree the qualities of Notwithstanding his close and persistent appliindependence, self-reliance, and indomitable cation to work, he enjoyed a game of golf, and perseverance so often exhibited by men from few excelled him as an angler. When he went that part of Scotland, and which have given for his short annual holiday to the upper reaches them conspicuous success in the various of the Deveron, which he much enjoyed, no. professions and

one could equal lines of business.

him in casting Trained in a law

a light fly and office in Peterhead

landing large he, w when com

trout from small paratively young,

streams which entered the office

most anglers of Mr Alexander

would pass by. Morison, S.S.C.,

In private life, as himself a North

in business, he was Country man and

highly esteemed one whose busi

by all who came ness connection

in contact with with the North

him, and was the was very exten

most loyal of sive. Few men of

friends. his time consulted by SO many country correspondents

It is officially who had implicit

announced that confidence in his

Steven advice and trusted

has been a phim fully in the

pointed solicitor conduct of their

(Scotland) and Mr litigations. Mr

Angus Macphail Wedderburn was

and Mr James not long in Mr Morison's office till he manifested Wilson have been appointed assistant solicitors such capacity for work, shrewdness of judgment, (Scotland) to the London, Midland, and Scottish and knowledge of law, that he became practically Railway Co. Mr Steven was formerly the indispensable to the business, and soon became a solicitor of the old Caledonian Railway Co. partner of the firm of Alex. Morison & Co., of Mr Wilson was formerly the assistant solicitor which he was senior partner at the time of of the old Glasgow and South-Western Railway his death. A forceful personality, a sound Co., and Mr Macphail acted as the assistant lawyer, and a man of honour and strict integrity, solicitor of the old Caledonian Railway Co. he greatly extended the business of his firm, and he was recognised by all (judges, counsel, and other agents) as perhaps the ablest agent in the Court of Session. A man of untiring energy, At a general meeting of the Society of while giving due weight to every detail in Advocates in Aberdeen held on 18th February, litigation, he quickly perceived the salient points Mr Norman Anderson Scorgie, B.L., law agent and saw things in their proper perspective. He in Aberdeen, was admitted a member.

f

were

Mr J. So

.

a

NEW SCOTTISH LAW OFFICERS.

The indications of Mr Macmillan's early

promise have now been fulfilled. No one is Mr H. P. Macmillan, K.C., and Mr J. C. more prominent at the Scottish Bar than the Fenton, K.C., have been appointed Lord subject of our remarks, and no one better Advocate and Solicitor-General respectively. deserves the success which he has attained,

for his position is due neither to influence nor MR H. P. MACMILLAN, K.C.

to family ties with the other branch of the Hugh Pattison Macmillan, a son of the late profession, but to his own untiring industry Rev. Hugh Macmillan, D.D., minister of the and high forensic ability. His engagements in United Free Church at Greenock, was born municipal work have numbered more extensively in 1873. Having received his early education than any other Scots counsel, and the high in Greenock, he entered in 1888, at the age of regard in which his knowledge and experience fifteen, the Arts Faculty of the University of of parliamentary Bills and procedure is held Edinburgh. There he had a very distinguished is evidenced by the fact that he has frequently career, receiving no less than nine medals and acted for English bodies. He is standing a number of other prizes. He graduated with counsel for many important corporations in first-class honours in the department of Mental Scotland, including the municipalities of Philosophy, and was awarded the Bruce of Glasgow and Edinburgh, the old North British Grangeħill and Falkland Prize as the best Railway, and the Royal Convention of Burghs. student in the class of Logic and Metaphysics. He has acted as senior legal assessor for he Thereafter he proceeded to the University of city of Edinburgh from 1920 till this month. Glasgow, where he graduated as Bachelor of

He has probably one of the most pleasing Laws, took many prizes, and was appointed styles in argument which the Scottish Bench has Andrew Cunninghame Scholar in Law as the ever listened to, and however dry the subject most distinguished Bachelor of Laws of his he imparts a literary quality, occasional year, with special consideration to eminence in touches of humour, or some pithy allusion conveyancing. The practical side of his legal which serve to brighten up the most unintertraining was obtained in the office of Messrs esting case. Cowan, Fraser & Clapperton, writers, Glasgow, Although a number of years ago Mr Macwhere he served an apprenticeship.

millan was adopted as Unionist candidate for After acting for a year as

devil
to Mr-

East Lothian he never actually contested now the late Lord-Guthrie, Mr Macmillan was election, and has taken no public part in in November 1897 admitted to the Faculty of politics since. Advocates. As he had in 1907-before com- His many friends in the profession will pleting ten years at the Bar-one of the largest heartily congratulate him on the attainment of junior practices, it cannot be said that he of an office in which he is sure to maintain its had long to wait for business, but in his early high traditions of efficiency. days at the Parliament House he found time for other legal work. He lectured to students

MR J. C. FENTON, K.C. in Glasgow on the subjects of “Searches " A portrait biography of Mr Fenton appeared and “ Vesting,” and to the Bankers’ Institute, in the “Scots Law Times” (News), 1915, p. 33. and the Accountants' Society in Edinburgh on Subsequent to that account of his career, Mr subjects connected with their professions ; he Fenton served with the Army in France, contributed some of the conveyancing articles where he was severely wounded. to Green's “Encyclopædia of Scots Law”; he On his return to the Bar on the conclusion assisted Mr Constable, advocate (now Lord of hostilities he was Advocate - Depute in the Constable), and Mr Beveridge, parliamentary Sheriff Court, and in April 1919 Extra Advocatesolicitor, in their work Provisional Depute for the Glasgow Circuit. Subsequently, Orders”; he collaborated in the preparation when Mr D. P. Fleming, K.C., became Solicitorof the first four volumes of the Private General, Mr Fenton succeeded him in the office Legislation Reports"; he acted as examiner, of Advocate-Depute. His experience in these from 1899 to 1904, in Conveyancing and positions should enable him to discharge his

, Forensic Medicine for Law Degrees in Glasgow new duties with efficiency. University; he reported for some years for the

Law Times," and once for a A LETTER was submitted at a meeting of the month, in August 1904, he acted as Sheriff- Lord Provost's Committee of Edinburgh Town Substitute at Aberdeen. edited the Council intimating the resignation of Mr H. P.

Juridical Review” with much success from Macmillan, Lord Advocate, from the office of 1900 to 1907. In 1918 he was Assistant Senior Legal Assessor. The committee agreed Director of Intelligence at the Ministry of to recommend that Mr T. Graham Robertson, Information.

K.C., be appointed Senior Legal Assessor.

on

“ Scots