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By J. R. HALDANE, M.A., LL.B., Advocate,
Sheriff-Substitute, Stornoway.

such agreements. The decisions in Roberts & Co. v. Salvesen & Co. (cit.), and in The Commercial Bank of Scotland v. Beal (1890, 18 R. 80), the only reported decisions of the Scottish Supreme Courts on the subject, were expressly decided 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 of the matter. If there is a completed agreement which remains binding on the parties after the transaction has fallen through, the questions involved present few difficulties. The deposit will be disposed of in conformity with the terms of the bargain; and the parties may make any bargain, in itself legal, which they choose about it. This was expressly recognised in the English case referred to. The Master of the Rolls quoted with approval in this connection a dictum of Lord Justice Bowen in the case of Howe v. Smith (27 Ch. D. 89) that 66 Persons may make exactly what bargain they please as to what is to be done with the money deposited." And in a Scots case where the whole question as to the nature of such deposits was carefully reviewed Lord President Strathclyde expressed the same view. "In adhering to the Lord Ordinary's judgment," he said, "I think we are merely asserting once more that a bargain made by business men is to be fulfilled according to its terms." (Roberts & Cooper v. Salvesen & Co., 1918 S.C. 794 at p. 808; 1918, 2 S.L.T. 160.)

If the bargain, however, contains no express detailed provisions as to the disposal of the deposit-if it is merely described as a deposit and nothing further is said about it-it is well decided by a series of English decisions (referred to in both the Scots and the English cases cited above) that the bargain means that, if it is the depositor's fault that the transaction is not carried through, he is to forfeit the deposit in full to the other party, and, if it is the other party's fault, the depositor recovers his deposit in full. It is a guarantee that the depositor means business. It is quite settled law that the Scots law and the English are identical in regard to the meaning of a "deposit " in


subject to modification. (Commercial Bank of
Scotland v. Beal, cit., and Gloag on "Contract,
p. 799, approved by the Lord President in
Roberts & Co. v. Salvesen & Co., cit., p. 808.)
But, of course, here again the parties are quite
at liberty to expressly stipulate that it is either
a "penalty" or "liquidate damages," or, as
Lord Skerrington suggested in Roberts
Salvesen (at. p. 813), in an exceptional case
the whole nature of the provisions as to the
deposit might conceivably indicate that it is
in reality either a penal provision or liquidated
damages rather than a guarantee of serious
intentions. In either case it would be subject
to modification according to the usual rules
of law in regard to penalties and liquidate
damages; and if it were in reality a penalty
the distinction which is drawn between these
two classes in Scots law, but not in English,
would create a difference in the way in which
it would fall to be treated in the two countries.
In Scotland it would be set aside, and only
the actual, proved damage, if any, would be

The law is fairly clear also in the case where it is quite clear that the agreement between the parties is of imperfect obligation that is to say that, for one reason or another, either party is entitled to resile from it without paying damages; that there is locus pœnitentiæ-as, for instance, if the agreement is a merely verbal one in regard to heritage, or if there is a clearly expressed stipulation that it is not to come into force until it is reduced to formal writing. There is no reported Scots case where this question arose, but this was the point expressly decided in the English case of Chillingworth v. Esche, above referred to. It was there held that, in the absence of express stipulation to the contrary, a suspensive condition referring

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 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 law. The provision as to the deposit is merely a subsidiary provision of a composite bargain which is one organic whole. But here again it must not be overlooked that the parties might expressly stipulate otherwise, or the terms of the bargain itself might indicate that the suspensive condition did not apply to the deposit, and this was expressly recognised in that decision. Even in the case of a verbal agreement as to heritage there appears to be no reason why a separable and completely binding agreement as to the forfeiture of the deposit by the resiling depositor should not be made. (See, for instance, Mungall v. Bowhill Colliery Co., 1904, 12 S.L.T: 80, 262.) But in the absence of such an express or clearly implied term of the agreement the other party has no title or right to retain the deposit if the right of resiling is exercised. He has not, of course, even a lien over it for any claim he might have for damages based on any fraud of the depositor in inducing him to negotiate.

English case of Chillingworth v. Esche, owing to the peculiarities of the English law in regard to the transference of property in freehold lands. A formal written deed or contract is apparently unnecessary to effect the transference. Again in Smeaton v. St. Andrews Police Commissioners (1868, 7 M. 206; revd. 1871, 9 M. (H.L.) 24), the agreement was one for the settlement of a litigation; and although it was one of the terms of the agreement that it was to be reduced to a formal deed, there were no express terms implying that the acceptance of the agreement by either party was subject to the execution of such a formal deed, and the full terms of the agreement were already embodied in writing, and approved, and nothing remained to be adjusted. The decision of the House of Lords, indeed, was that the pursuer was entitled to insist on the execution of the formal deed. Here again the stipulation as to a formal deed was not a condition at all, but a positive provision of the agreement. In Dewar v. Ainslie (1892, 20 R. 203) the agreement also was for the settlement of a litigation; but in this case the decision proceeded on the ground that there was no agreement at all that the bargain which had been made must be executed in writing although the parties did in fact subsequently attempt to reduce it to a formal document and fell out as to the detailed terms. The Lord Justice-Clerk said (p. 208), It is a case quite similar to those in which we have to deal with a document not holograph or tested and containing a record of an agreement, where the only question is what interpretation we are to put on that agreement. Where the parties cannot agree upon the precise terms of the subsequent formal agreement, the Court must adjust them, with the assistance of a man of business." Anderson v. Dick (1901, 4 F. 68; 9 S.L.T. 225) was a similar case, where it was contested that an informal agreement for the settlement of an action must be taken to be subject to the execution of a formal deed. This contention was expressly repelled, and the decision was expressly on the ground that the informal agreement contained no reference to the execution of a more formal document.

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In the English case of Chillingworth v. Esche, however, the fact which decided the question that it was open to either party to resile from the bargain (which was one for the purchase of a freehold property) was that the acceptance of the bargain by the depositor (the purchaser), which was by letter, contained the words "subject to a proper contract to be prepared by the vendor's solicitors." It was held to be well settled in English law that such words suspended the operation of the bargain until a formal contract should be executed. At first sight there appears to be a divergence between the English and the Scottish decisions in regard to the effect of such expressions. A closer examination of the Scots cases, however, would not appear to support this impression. There were specialities in each of the Scottish cases. Thus in Erskine v. Glendinning (1871, 9 M. 656) the bargain was for a lease, and the acceptance by the landlord was "subject to subject to lease drawn out in due form." It was held that this was not a suspensive condition, importing locus pœnitentia pending the execution of a formal lease; but the ratio of this decision was that "It did not 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 require that his tenant should enter of the exceptions which prove a general rule that



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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, 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 pœnitentiæ. The Scots law would thus Frederick Leonard 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.


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LAW AGENTS' EXAMINATIONS. The half-yearly Examinations in General Knowledge conducted by the Examiners of Law Agents were held recently in Edinburgh and Glasgow, and the results have now been intimated to the candidates. For the First Examination in General Knowledge, which qualifies for apprenticeship, 75 applicants presented themselves. Twenty-four of these have passed, or been found qualified by substitute certificates, in all the subjects, and 33 have been notified as being partially qualified. For the Second Examination in General Knowledge 86 candidates entered. One has passed in four subjects; 6 in three, 14 in two, and 38 in one subject. The papers of the candidates in this Examination were as follows: Mathematics 24, passed 9; Logic 36, passed 16; Latin 31, passed 16; French 26, passed 11; German 1, passed 1; Italian 1, failed; Book-It was a wet and windy day. When the train keeping 45, passed 36.

At the quarterly Examination in Law conducted by the Examiners, which was held in Edinburgh on 21st to 24th January, 43 candidates presented themselves for examination. Twenty-nine of these were examined in all the subjects and 21 passed; and 14 graduates in law holding the Degree of LL.B. or B.L. of the Scottish Universities were examined in Court Procedure and all passed. The following are the successful candidates:

Upton v. Great Central Railway Co. WORKMEN'S COMPENSATION-"ACCIDENT ARISING OUT OF AND IN THE COURSE OF THE EMPLOYMENT -RAILWAY LABOURER SLIPPING ON PLATFORM WHEN RETURNING HOME FROM WORK-WORKMEN'S COMPENSATION ACT, 1906 (6 EDW. VII. CAP. 58), SECTION 1 (1).—On 17th September 1922 Alfred Upton, a foreman labourer in the employment of respondents, was sent by them from Guide Bridge to work on a water-main some distance from Dunford Bridge Station. After he had finished his work he went to Dunford Bridge Station to get a train by which to return to Guide Bridge. He was waiting with other workmen for the train.

came in, Upton hurriedly crossed the platform to reach it and, while crossing, slipped and fell. As a result of his fall he injured his knee. Septicemia set in and he died. His widow applied to the respondents for compensation. The respondents conceded that Upton was in the course of his employment at the time of the accident, but maintained that the accident did not arise out of his employment. The County Court judge held that the accident did 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 M'Intyre Ferguson, Glasgow; John Clanachan Gardner, B.L., Stonehaven; James George, B.L., Glasgow; Thomas Louttit Gibson, Edinburgh; James

cision of the Court of Appeal ([1923] 2 K.B. 879)
reversed.-House of Lords (Viscount Haldane,
Lords Dunedin, Atkinson, Sumner, and Buck-
master).-18th December 1923.





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naturally did not care to devolve more on assistants than he could help, and his untimely 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 t 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

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one could equal him in casting a light fly and landing large trout from small streams which most anglers would pass by. In private life, as in business, he was highly esteemed by all who came in contact with him, and was the most loyal of friends.

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Railway Co. Mr Steven was formerly the solicitor of the old Caledonian Railway Co. Mr Wilson was formerly the assistant solicitor of the old Glasgow and South-Western Railway Co., and Mr Macphail acted as the assistant solicitor of the old Caledonian Railway Co.

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 indispensable to the business, and soon became a partner of the firm of Alex. Morison & Co., of which he was senior partner at the time of his death. A forceful personality, a sound lawyer, and a man of honour and strict integrity, 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, while giving due weight to every detail in litigation, he quickly perceived the salient points and saw things in their proper perspective. He

AT a general meeting of the Society of Advocates in Aberdeen held on 18th February, Mr Norman Anderson Scorgie, B.L., law agent in Aberdeen, was admitted a member. f

NEW SCOTTISH LAW OFFICERS. Mr H. P. Macmillan, K.C., and Mr J. C. Fenton, K.C., have been appointed Lord Advocate and Solicitor-General respectively.


Hugh Pattison Macmillan, a son of the late Rev. Hugh Macmillan, D.D., minister of the United Free Church at Greenock, was born in 1873. Having received his early education in Greenock, he entered in 1888, at the age of fifteen, the Arts Faculty of the University of Edinburgh. There he had a very distinguished career, receiving no less than nine medals and a number of other prizes. He graduated with first-class honours in the department of Mental Philosophy, and was awarded the Bruce of Grangehill and Falkland Prize as the best student in the class of Logic and Metaphysics. Thereafter he proceeded to the University of Glasgow, where he graduated as Bachelor of Laws, took many prizes, and was appointed Andrew Cunninghame Scholar in Law as the most distinguished Bachelor of Laws of his year, with special consideration to eminence in conveyancing. The practical side of his legal training was obtained in the office of Messrs Cowan, Fraser & Clapperton, writers, Glasgow, where he served an apprenticeship.


After acting for a year as "devil" to Mrnow the late Lord-Guthrie, Mr Macmillan was in November 1897 admitted to the Faculty of Advocates. As he had in 1907-before completing ten years at the Bar-one of the largest of junior practices, it cannot be said that he had long to wait for business, but in his early days at the Parliament House he found time for other legal work. He lectured to students in Glasgow on the subjects of "Searches" and 'Vesting," and to the Bankers' Institute, and the Accountants' Society in Edinburgh on subjects connected with their professions; he contributed some of the conveyancing articles to Green's "Encyclopedia of Scots Law"; he assisted Mr Constable, advocate (now Lord Constable), and Mr Beveridge, parliamentary solicitor, in their work on "Provisional Orders"; he collaborated in the preparation of the first four volumes of the Private Legislation Reports"; he acted as examiner, from 1899 to 1904, in Conveyancing and Forensic Medicine for Law Degrees in Glasgow University; he reported for some years for the "Scots Law Times," and once month, in August 1904, he acted as SheriffSubstitute at Aberdeen. He edited the "Juridical Review with much success from 1900 to 1907. In 1918 he was Assistant Director of Intelligence at the Ministry of Information.

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The indications of Mr Macmillan's early promise have now been fulfilled. No one is more prominent at the Scottish Bar than the subject of our remarks, and no one better deserves the success which he has attained, for his position is due neither to influence nor to family ties with the other branch of the profession, but to his own untiring industry and high forensic ability. His engagements in municipal work have numbered more extensively than any other Scots counsel, and the high regard in which his knowledge and experience of parliamentary Bills and procedure is held is evidenced by the fact that he has frequently acted for English bodies. He is standing counsel for many important corporations in Scotland, including the municipalities of Glasgow and Edinburgh, the old North British Railway, and the Royal Convention of Burghs. He has acted as senior legal assessor for he city of Edinburgh from 1920 till this month.

He has probably one of the most pleasing styles in argument which the Scottish Bench has ever listened to, and however dry the subject he imparts a literary quality, occasional touches of humour, or some pithy allusion which serve to brighten up the most uninteresting case.

Although a number of years ago Mr Macmillan was adopted as Unionist candidate for East Lothian he never actually contested election, and has taken no public part in politics since.

His many friends in the profession will heartily congratulate him on the attainment of an office in which he is sure to maintain its high traditions of efficiency.


A portrait biography of Mr Fenton appeared in the "Scots Law Times" (News), 1915, p. 33. Subsequent to that account of his career, Mr Fenton served with the Army in France, where he was severely wounded.

On his return to the Bar on the conclusion of hostilities he was Advocate - Depute in the Sheriff Court, and in April 1919 Extra AdvocateDepute for the Glasgow Circuit. Subsequently, when Mr D. P. Fleming, K.C., became SolicitorGeneral, Mr Fenton succeeded him in the office of Advocate-Depute. His experience in these positions should enable him to discharge his new duties with efficiency.

A LETTER was submitted at a meeting of the Lord Provost's Committee of Edinburgh Town Council intimating the resignation of Mr H. P. Macmillan, Lord Advocate, from the office of Senior Legal Assessor. The committee agreed to recommend that Mr T. Graham Robertson, K.C., be appointed Senior Legal Assessor.

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