in the same position in which trustees of the same estate would have stood in regard to the various acts detailed in section 4, including sale. Whether this distinction was really intended may well be doubted, but it is difficult to answer the argument. Well, then, what are the terms and of the decree purposes appointing the judicial factor? "Terms" here mean nothing, for all we have in the decree are the baldest words of nomination. "Purposes " is different; the purposes will not be found in the extract decree of appointment, at least not unless the petition is full, and the extractor takes a liberal view of his right or duty to echo the petition in the extract. But in any case, there must be purposes or a purpose, to ascertain which reference may be made to the will or other instrument, the petition, and possibly the proof or other proceedings under the petition, and any judicial opinions delivered. But for what purpose are the "purposes " to be ascertained, and who is to judge whether a power of sale would be at variance. with them? Lord Sands states a classification of judicial factories, with some clearly on each side of the line, but leaving a sufficient residuum of doubtful cases in which his Lordship's advice is: The expedient course is for the factor to apply to the Court for special power of sale, even though in some cases it may happen that the note is dismissed

as unnecessary.

This is disappointing and unsatisfactory. Regard must be had to the position, not only of the judicial factor in relation to the Court, to the beneficiaries, and to any purchaser, but also of the purchaser. There is no guarantee of the classification of factories, and all parties will be cautious. Doubts will be magnified, and imagination will create them where they do not exist. It is also to be remembered that a purchaser at a full price is a favourite of the law, if not also of the Court. Lord Sands suggests that no difficulty arises when the factor has been appointed upon a subsisting trust on failure of trustees. But, with great deference, is even this clear on the views now judicially supported? Even take it that the original trust deed gave express power of sale, the test in the case of the factor is the purposes, not of that original deed, but of his own appointment; in other words, he can never have more power than the old trustees, but he may well have less. But the original deed may not have contained express power of sale, and then the gloom of doubt is deeper. In passing, let it be said that, while there is no space to discuss the bearing of Leslie's case on ordinary trustees, the lesson is at least obvious that it would be foolish in any will or marriage contract, or any other trust instrument, to assume

that the powers in section 4 of the 1921 Act will be implied.

as

This means that it shall be the Court who judge of the purposes and the variance. What is the procedure to be? (1) If the view taken is that there is no variance, apparently the application is to be dismissed as unnecessary; already stated, it is hardly conceivable that in such a case the Court would pay to the 1921 Act the poor compliment of doing its work over again; and apparently it is not contemplated that there should be a judicial finding of “no variance.' (2) If the view taken is that there is variance, that would not necessarily be fatal, for the application might still go through under section 5, if shewn to be "expedient for the execution of the trust." Perhaps this suggests that such applications ought to be in the alternative. (3) In any case the averments should be full, laying a proper basis for what is proposed. (4) As yet there is no suggestion that the judicial deliverance will be limited to a particular proposed transaction on the basis of time, price, and conditions stated. But once timidity is aroused it may be that the mere dismissal, as unnecessary, of an application for power of sale in order to carry through a specified transaction on terms stated, will not be regarded as a general judicial imprimatur on any other sale on perhaps quite different conditions. (5) Obviously, sale first and application after, is unsafe.

Turning to the purely conveyancing question, the decision is that the decree of appointment of a judicial factor does not bring the factor within either section 3 or section 4 of the Conveyancing Act, 1924, and that warrant to complete title is necessary to enable him either (1) to go on the register under section 4, or (2) to give a title under section 3 without going on the register. With great respect these decisions seem sound, and it is not known that the contrary had previously been suggested. The Lord President said:

As judicial factor he has no right of any kind to the heritable property. The decree appointing him gives him no such right. He is an administrator only, and administration does not include alienation.

Then there follows a passage which is illustrative of the new light which the case throws on the situation :

sider whether a warrant to make up title should,

The Lord Ordinary will, therefore, have to con

or should not, be granted. The applicant is not entitled to it as matter of course.

Cause must be shewn, but, of course, that cause_need not be a sale; but if it is a sale, the Lord Ordinary must next be satisfied that the sale is a duly authorised one

66

under the Trusts Act, 1921." Other causes recognised by the Lord President are "the preservation of the estate or the protection of its title." We confess that the idea of refusing to give a mere warrant to complete title in almost any circumstances seems somewhat staggering to one accustomed to the older practice. Certainly it may be urgently necessary to get the judicial factor on to the register, sale or no sale. But the answer, no doubt, is that non sequitur that any application for warrant to complete title will be refused, if properly presented; only, if the sole basis of application is a sale in reliance on section 4 of the Trusts Act, 1921, it must be shewn that that section applies, and that is done by saying enough-very little may do to establish the statutory condition of no variance with the trust purposes.

We question whether until this Leslie case anyone has noted that section 44 of the 1874 Act is expressly different from all other sections dealing with completion of title. It is believed that applications under that section have been expressed as craves for warrant to complete title, but that is not how the section runs. The petition is to crave the appointment, and to specify the property, and then the interlocutor of appointment "shall" repeat the specification, and this is a title, without anything said about warrant or completing title, and without any option to the Court. But, even as amended by the 1924 Act, it applies only to a trust estate regulated by a trust deed. In the discussion in Leslie's case it is understood that no reference was made to the enactment in section 3 of the 1868 Act that persons, appointed by decree, etc., to exercise or enjoy the rights or powers conferred by prior deeds, shall be in the same position as if they had been named in the prior deed. In this sense it might be contended that the judicial factor, being appointed by decree, and being made a trustee by the 1921 Act, was in the same position as if he had been named as trustee in the will. But in Leslie's case no regular trustee was named in the will; and even if there had been, the answer might be that a judicial factor has not the same rights and powers as an ordinary trustee, inasmuch as he has no proper proprietary, but only an administrative, title.

It may be a corollary of Leslie's case that it is not proper for a judicial factor, without completion of title or other judicial authority, to obtain a charter of novodamus, and that any request by a factor for such a grant should be

refused.

Although not mentioned in the opinions, the matter of caution came up in the discussion. On questions of restriction of caution heritable property has in the past counted for much less

houses, all bearing the same date, five being recorded on the same day. One discharge in the new short form might apply to either or each, or any or all of the five. It is pointed out that the new system provides a method of eliminating confusion by giving the number of the record volume and the folio upon which the bond is engrossed. True, but this conveys nothing to the examiner of a discharge, unless either he has the bond before him that he may refer to the cabbalistic figures in the record certificate, or, at considerable expense and trouble, he resorts to the record itself. In two instances at this past term of Whitsunday the agents of purchasers introduced short descriptions into discharges prepared by me in the new short form and submitted for their approval, and I accepted their amendments. A practice would appear, therefore, to be establishing itself, pace Mr Whyte, of improving the new form of discharge along the lines which Mr Fortune recommends.-I am, etc., GEO. L. STURROCK.

congratulated on the completion of a great and useful undertaking.

Elliot on the Workmen's Compensation Acts. Eighth Edition by Montague Berryman, Barrister-at-Law. 1925. London: Sweet & Maxwell Ltd. Price £2, 2s.

The death of Judge Adshead Elliot has resulted in the entrusting of the work of bringing up to date his well-known book on Workmen's Compensation to other hands. No writer on the subject had attained such a reputation for mastery of the topic as the late judge. It is all the more satisfactory to find a new edition which is calculated to maintain the high standard of the author's work. The extensive alterations introduced into the law by the Act of 1923 have greatly increased the difficulties of the editor. If he has been sometimes at a loss in deciding what parts of the case law built up on the earlier Acts have been rendered obsolete, he is entitled to sympathy rather than blame; and the commentator of a new statute which has received little, if any, judicial construction has no enviable task. The mere dovetailing of the old and the new is, in this case, a work of considerable difficulty. The editor is to be commended for the skill and care which he has brought to his work.

Company Law and Practice: an Alphabetical Guide thereto. By Herbert W. Jordan and Stanley Barrie. Sixteenth Edition. 1925. London: Jordan & Sons Ltd. Price 8s. 3d. by post.

In its new edition Jordan's Company Law will retain its place as a useful and handy guide to the daily problems that arise in company administration.

LAW LIBRARY.

BOOK NOTICES.

An Analytical Digest of Cases decided in the Supreme Courts of Scotland, and, on appeal, in the House of Lords, 1868 to 1922, prepared for the Faculty of Advocates by Members of the Bar. Vol. V. Edinburgh and Glasgow: Wm. Hodge & Co. Ltd. Price 63s. net.

The compilers of the Faculty Digest are now within sight of the end of their labours. The volume now issued concludes the Digest proper; and we understand that the sole remaining volume will contain only the necessary indices to make the work complete. The staff is to be

The Workmen's Compensation Acts, 1906 to 1924, with Notes, Rules, Orders, and Regulations. By W. Addington Willis, Barrister-at-Law. Twenty-third Edition. 1925. London: Butterworth & Co.; Shaw & Sons. Price 15s.

We have noted with interest of late that Willis on the Compensation Acts, which has long been valued by lawyers, is rapidly rising to the dignity of a quotable book in Court. Its handy form and the annual appearance of up-to-date editions have conduced to this result.