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JUDICIAL FACTORS' TITLES AND terms or purposes of the trust." This is the

whole code on the question of power of sale,

for that is not touched by the Conveyancing On considering the opinions delivered in the Act, 1924. Before Leslie's case occurred, one First Division on the report by Lord Murray in had thought that a judicial factor would be Leslie's Factory, one is tempted to exclaim well advised to consult the Accountant of

behold how great a matter a little fire | Court before contracting to sell, for that would kindleth.” The application by the judicial be a prudent, and perhaps it may be said a factor appeared to be of the most innocent respectful, act; it would prevent the Accounand humdrum order, being merely for warrant tant starting questions or objections ex post to complete title to certain heritable property. facto on the next audit, by which time the But what had all the appearance of the most conveyance might have been delivered and routine and matter-of-course step on the firm the price received ; and even if the Accountant foundation of long-established practice bas, in were to take the view that it was not for him the event, so far as the event is yet, proved to to advise the factor, still the latter would have be the taking of a plunge into a very sea of protected himself by doing all he could. troubles. Like the writings of certain philo- | Certainly one did think, and even yet the view sophers of ambiguous orthodoxy, the pro- respectfully presses itself, that as the Trusts ceedings, so far as they have gone, have raised Act says that the judicial factor “shall have ” more questions and difficulties than they have power of sale, it is not possible for the Court to solved. The issue, if such it can be called confer that power on him, and that, therefore, to complete or not to complete title-has an application for power of sale must be become inextricably mixed up with the question incompetent. If, again, the matter be preof the factor's power of sale. The natural sented in the alternative light of an application conception is that the former is a mere technical to the Court for advice whether the factor machinery step of pure formality, whereas the ought to exercise the statutory power, one latter is a matter of substance and importance. would expect the answer that that was The two things seem so separate that it comes question for the factor on his own responsibility, as a surprise to find them judicially treated as and that the Court had no jurisdiction to advise closely interwoven and interdependent. To or relieve him. In all this one may have been begin with, the judicial factor and his advisers failing to give proper weight to the facts that evidently never for a moment dreamed that a judicial factor is an officer of Court, that there was any question of his power to sell, for, the estate is under judicial administration, in fact, he had sold before he came to the Court. and that the factor is little more than the hand Lord Murray formed the same opinion, or made of the Court for that purpose. When this is the same assumption, for the circumstance remembered, it may follow that any and every which led to the report to the Inner House was, power which the factor may acquire, whether not any doubt regarding the power of sale by order of the Court, or by Act of Sederunt, or regarding the factor's right to complete title, which is in this respect just a general order, or but a very distinct doubt whether any warrant by Act of Parliament, can be held and exercised from the Court is now required for the latter by the factor only, and not otherwise than, purpose, or, indeed, whether any completion of under the direction of the Court.

Certainly title is now necessary. But in the Inner House it is thought that, until so clearly pointed out assumptions, presumptions, and the practice by the Lord President, there had been an of many decades, not excepting the very omission to observe the specialty which arises, practical item of the amount of caution, were under the language of the Trusts Act, 1921, in subjected to a fundamental re-examination, the case of judicial factors (and curators bonis) with the result that we now have the whole with reference to the qualification where position exposed to a strong light of criti- such acts are not at variance with the terms or cism, and are left with a good deal to think purposes of the trust.” In the first place, it

. about.

may be noted that, as regards both trustees Under the Trusts Act, 1921 (section 2), and judicial factors, it appears to be correct “ trust” includes the appointment of any to say that, where this variance exists, what is judicial factor; “trust deed” includes any debarred and excluded by the Act is, not any decree appointing a judicial factor ; trustee particular sale, but the very power of sale includes any judicial factor; "judicial factor " itself. But in the case of judicial factors includes any person judicially appointed factor there is the further restriction that in their upon a trust estate, but not every judicial factor. case

means, as we have seen, the It was held that Leslie's was a trust estate. factor's appointment, ¿.e. the decree of Then, by section 4, in all trusts the trustees Court. Accordingly, it is not at all the same as have power of sale if " not at variance with the if the Act had said that the factor should stand

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in the same position in which trustees of the that the powers in section 4 of the 1921 Act same estate would have stood in regard to the will be implied. various acts detailed in section 4, including This means that it shall be the Court who sale. Whether this distinction was really judge of the purposes and the variance. What intended may well be doubted, but it is difficult is the procedure to be? (1) If the view taken is to answer the argument. Well, then, what are that there is no variance, apparently the applicathe terms and purposes

of the decree tion is to be dismissed as unnecessary ; appointing the judicial factor ? Terms already stated, it is hardly conceivable that in here mean nothing, for all we have in the such a case the Court would pay to the 1921 decree are the baldest words of nomination. Act the poor compliment of doing its work over “Purposes ” is different; the purposes will not again ; and apparently it is not contemplated be found in the extract decree of appointment, that there should be a judicial finding of at least not unless the petition is full, and the variance. (2) If the view taken is that there extractor takes a liberal view of his right or is variance, that would not necessarily be fatal, duty to echo the petition in the extract. But for the application might still go through in any case, there must be purposes or a purpose, under section 5, if shewn to be "expedient for to ascertain which reference may be made to the execution of the trust. Perhaps this the will or other instrument, the petition, and suggests that such applications ought to be in possibly the proof or other proceedings under the alternative. (3) In any case the averments the petition, and any judicial opinions delivered. should be full, laying a proper basis for what is

But for what purpose are the "purposes” to proposed. (4) As yet there is no suggestion be ascertained, and who is to judge whether a that the judicial deliverance will be limited to a power of sale would be at variance with them? particular proposed transaction on the basis of Lord Sands states a classification of judicial time, price, and conditions stated. But once factories, with some clearly on each side of timidity is aroused it may be that the mere the line, but leaving a sufficient residuum of dismissal , as unnecessary, of an application for doubtful cases in which his Lordship's advice is : power of sale in order to carry through a The expedient course is for the factor to apply to specified transaction on terms stated, will not the Court for special power of sale, even though in be regarded as a general judicial imprimatur on some cases it may happen that the note is dismissed any other sale on perhaps quite different as unnecessary.

conditions. (5) Obviously, sale first and appli

cation after, is unsafe. This is disappointing and unsatisfactory. Turning to the purely conveyancing question, Regard must be had to the position, not only the decision is that the decree of appointment of the judicial factor in relation to the Court, of a judicial factor does not bring the factor to the beneficiaries, and to any purchaser, but within either section 3 or section 4 of the also of the purchaser. There is no guarantee Conveyancing Act, 1924, and that warrant to of the classification of factories, and all parties complete title is necessary to enable him will be cautious. Doubts will be magnified, either (1) to go on the register under section 4, and imagination will create them where they do or (2) to give a title under section 3 without not exist. It is also to be remembered that a going on the register. With great respect purchaser at a full price is a favourite of the these decisions seem sound, and it is not known law, if not also of the Court. Lord Sands that the contrary had previously been sugsuggests that no difficulty arises when the gested. The Lord President said: factor has been appointed upon a subsisting trust on failure of trustees. But, with great

As judicial factor he has no right of any kind to

the heritable property. The decree appointing him deference, is even this clear on the views now judicially supported ? Even take it that the gives him no such right. He is an administrator

only, and administration does not include alienation. original trust deed gave express power of sale, the test in the case of the factor is the purposes, Then there follows a passage which is illusnot of that original deed, but of his own trative of the new light which the case throws appointment; in other words, he can never on the situation : have more power than the old trustees, but he well have less. But the original deed may sider whether a warrant to make up title should,

The Lord Ordinary will, therefore, have to conmay not have contained express power of sale, and

or should not, be granted. The applicant is not then the gloom of doubt is deeper. In passing, entitled to it as matter of course. let it be said that, while there is no space to discuss the bearing of Leslie's case on ordinary Cause must be shewn, but, of course, that trustees, the lesson is at least obvious that it cause need not be a sale ; but if it is a sale, would be foolish in any will or marriage con- the Lord Ordinary must next be satisfied tract, or any other trust instrument, to assume that the sale is a duly authorised one



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under the. Trusts. Act, 1921.” Other causes than personal estate, and it is not known that recognised by the Lord President are the this was affected by a grant of warrant to preservation of the estate or the protec- complete title. The reason was that, comtion of its title." We confess that the idea pletion of title or not, the factor had no power of refusing to give a warrant to of sale. It must be confessed that his position complete title in almost any circumstances in regard to power of sale is none too clear even seems somewhat staggering to one accustomed yet, but not improbably the relation of the to the older practice. Certainly it may be quantum of caution to heritable property and urgently necessary to get the judicial factor to section 4 of the Trusts Act, 1921, will now on to the register, sale or no sale. But the come up for consideration. answer, no doubt, is that non sequitur that any application for warrant to complete title will be refused, if properly presented; only, if

S.S.C. SOCIETY.-At a statutory general the sole basis of application is a sale in reliance on section 4 of the Trusts Act, 1921, it must be meeting of the Society of Solicitors in the shewn that that section applies, and that is Supreme Courts held in Edinburgh on the done by saying enough—very little may do— 2nd June—Mr W. H. Mill, president, in the to establish the statutory condition of no chair-Mr Thomas James Addly, 21 Duke

variance with the trust purposes.

Street, Edinburgh, was admitted a member. We question whether until this Leslie case anyone has noted that section 44 of the 1874

MESSRS HOLMES, MACKILLOP & Co., writers, Act is expressly different from all other Glasgow and Johnstone, intimate that on and sections dealing with completion of title. It after 2nd June 1925, their Glasgow office address is believed that applications under that section will be 247 St Vincent Street, C. 2. 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,

MESSRS D. JEFFREY AITKEN & Co., solicitors, and to specify the property, and then the intimate that they have now removed to larger interlocutor of appointment “ shall ” repeat the premises at 144 West Regent Street, Glasgow, specification, and this is a title, without any-C. 2.

C. thing said about warrant or completing title, and without any option to the Court. But, even as amended by the 1924 Act, it applies intimates that his address is now 26 High Street,

MR W. DYKES BROWN, solicitor, Paisley, only to a trust estate regulated by a trust deed. intimates that his address is now 26 High Street,

Paisley. 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, THE LATE MR D. J. MACKENZIE.-We record appointed by decree, etc., to exercise or enjoy with much regret the death, at Elgin, of Mr the rights or powers conferred by prior deeds, David James Mackenzie, advocate, the former shall be in the same position as if they had been Sheriff-Substitute of Lanarkshire at Glasgow. named in the prior deed. In this sense it A full biography appears in the issue of the might be contended that the judicial factor, Scots Law Times," dated 29th January 1921, being appointed by decree, and being made a since which date the late Mr Mackenzie has been trustee by the 1921 Act, was in the same | living in retirement at Elgin. 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

Letter to the Editor. has not the same rights and powers as an

76 GEORGE STREET, ordinary trustee, inasmuch as he has no proper

EDINBURGH, 2nd June 1925. proprietary, but only an administrative, title.

Sir, It may be a corollary of Leslie's case that it is

Conveyancing (Scotland) Act, 1924. not proper for a judicial factor, without completion of title or other judicial authority, to

It is not easy to see why Mr Whyte should be at obtain a charter of novodamus, and that any

such pains to controvert Mr Fortune's very simple recommendation.

The point is that a discharge request by a factor for such a grant should be

of a bond is obviously more satisfactory if it contains refused.

an identification by short description of the property Although not mentioned in the opinions, the affected. In my previous letter I gave an actual matter of caution came up in the discussion. instance, which came under my notice in examining On questions of restriction of caution heritable a search, of seven bonds for £450 each, granted by property has in the past counted for much less a builder to the same lender over seven adjoining

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houses, all bearing the same date, five being recorded congratulated on the completion of a great and on the same day. One discharge in the new short useful undertaking. 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 Elliot on the Workmen's Compensation Acts. folio upon which the bond is engrossed. True, but Eighth Edition by Montague Berryman, this conveys nothing to the examiner of a discharge,

Barrister-at-Law. 1925. London: Sweet unless either he has the bond before him that he may

& Maxwell Ltd. Price £2, 2s. 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

The death of Judge Adshead Elliot has term of Whitsunday the agents of purchasers intro- resulted in the entrusting of the work of bringing duced short descriptions into discharges prepared up to date his well-known book on Workmen's by me in the new short form and submitted for Compensation to other hands. No writer on their approval, and I accepted their amendments. the subject had attained such a reputation for A practice would appear, therefore, to be establish- mastery of the topic as the late judge. It is ing itself, pace Mr Whyte, of improving the new form all the more satisfactory to find a new edition of discharge along the lines which Mr Fortune which is calculated to maintain the high recommends.—I am, etc., GEO. L. STURROCK.

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 DECISIONS OF THE ENGLISH in deciding what parts of the case law built up COURTS.

on the earlier Acts have been rendered obsolete, he is entitled to sympathy rather than blame;

and the commentator of a new statute which Simpson v. Tate.

has received little, if any, judicial construction

has no enviable task. The mere dovetailing REVENUE-INCOME TAX-MODE


of the old and the new is, in this case, a work of DEDUCTIONS MONEY WHOLLY EXPENDED FOR PURPOSES OF BUSINESS-MEDICAL commended for the skill and care which he has

considerable difficulty. The editor is to be SUBSCRIPTIONS

brought to his work. MEDICAL

SCIENTIFIC SOCIETIES-INCOME TAX ACT, 1918 (8 & 9 GEO. V. CAP. 40), SCHEDULE E.-A medical officer of health joined several scientific societies for the purpose of keeping Company Law and Practice : an Alphabetical himself qualified to perform the duties of his Guide thereto. By Herbert W. Jordan and office. Held that he was not entitled to deduct

Stanley Barrie. Sixteenth Edition. 1925. the amount of his subscriptions—K.B. Div. London : Jordan & Sons Ltd. Price (Rowlatt J.).—11th March 1925.

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.



An Analytical Digest of Cases decided in the The Workmen's Compensation Acts, 1906 to

Supreme Courts of Scotland, and, on appeal, 1924, with Notes, Rules, Orders, and in the House of Lords, 1868 to 1922, pre- Regulations. By W. Addington Willis, pared for the Faculty of Advocates by Barrister-at-Law. Twenty-third Edition. Members of the Bar. Vol. V. Edinburgh 1925. London: Butterworth & Co.; Shaw and Glasgow : Wm. Hodge & Co. Lid. & Sons. Price 15s. Price 63s. net.

We have noted with interest of late that The compilers of the Faculty Digest are now Willis on the Compensation Acts, which has within sight of the end of their labours. The long been valued by lawyers, is rapidly rising volume now issued concludes the Digest proper ; to the dignity of a quotable book in Court. and we understand that the sole remaining Its handy form and the annual appearance of volume will contain only the necessary indices up-to-date editions have conduced to this to make the work complete. The staff is to be result.

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Messrs Watson discontinued supplying the DEFENCE OF TRADE INTERESTS.

appellant with newspapers. The appellant By D. MESTON, Esq., Barrister-at-Law.

thereupon claimed an injunction to restrain the

respondent committee, in combination or otherIn the recent case of Sorrell v. Smith (reported wise, attempting to interfere with his right to in the Times on 16th May), the House of enter into or continue such contractual relations Lords gave a most interesting decision relating with Messrs Watson as he willed, or generally to the commission of an actionable wrong which with his right to carry on his business as he is calculated to interfere with the right of a willed. The question of damages did not arise trader to conduct his business as he wishes. as the committee did not combine to procure

The facts of the case were as follows: The a breach of any contract between the appellant publishers of the London daily newspapers and Messrs Watson, and no such breach in fact supplied their papers to wholesale newsagents, took place. The learned trial judge (Russell who in turn supplied them to retail newsagents J.) expressed the opinion that the case of for sale to the public. The retail newsagents Quinn v. Leathem (17 T.L.R. 749; [1901] A.C. had a trade union, or federation, which ad- 495) decided that a combination of two or more vooated a policy called the distance limit

persons to induce by threats a man's customers policy” which was designed to prevent new: not to deal with him was, if damages resulted, comers from opening shops in any area where actionable, unless justification existed, and that the supply of newpapers was, in the opinion of the decision did not depend upon the existence the federation, already sufficiently provided for in the combination of an intent to injure. On the other hand, the interests of the publishers While he found as a fact that the committee in regard to the circulation of their newspapers were not actuated by any spite against the was looked after by a committee (the respon- appellant, or by any desire or intention to dents in the above appeal) of the circulation injure him, the learned judge held that there managers of the London dailies, and this was no sufficient justification for the action of committee naturally regarded the “ distance the committee, which he attributed solely to limit policy” of the retail newsagents' federation their desire to defeat the “distance limit with considerable disfavour.

policy” of the retail federation, and he granted In 1922 some newcomers began selling news- an injunction. The Court of Appeal, however papers in an area which, in the opinion of the following the decision in Ware and de Freville v. London district council of the retail newsagents' Motor Trade Association (37 T.L.R. 213; [1921] federation, was already sufficiently equipped 3 K.B. 40)--held that an intent to injure was with retail newsagents. These newcomers were an essential part of the offence charged. They supplied with their papers by a firm of wholesale were of opinion that the committee of circulation newsagents, called Ritchie Brothers.

The managers had taken action, not for the mere London district Council, having failed to purpose of obtaining control of the " distance persuade Messrs Ritchie to stop supplying the limit policy,” but in order to protect their trade unwelcome newcomers, invited one member interests by securing a free sale of newspapers ; from each branch of their federation to volunteer and that the committee were therefore justified to withdraw his supply from Messrs Ritchie in in their action. On those grounds the Court of order to compel Messrs Ritchie to fall into line Appeal reversed the judgment of Russell J. with other wholesale newsagents the (sup.) and discharged the injunction. It will “ distance limit policy.” Thereupon a certain be observed that the Court of Appeal took a retail newsagent named Sorrell (the appellant diametrically opposite view of the controversy in the above appeal) voluntarily withdrew his from that taken by the learned trial judge. orders from Messrs Ritchie and transferred his A number of interesting points arise for our custom to other wholesale agents named Messrs consideration in connection with the combinaWatson. Appreciating the significance of this tion of persons for the purposes of trade. Such manouvre, Messrs Ritchie appealed for assist- combinations may be designed either to forward ance to the respondent committee. The latter or defend the trade of those who enter into it; informed Messrs Watson that, unless they or wilfully to injure some other trader. Now, ceased to supply the appellant with newspapers, as Alderson B. said in Hilton v. Eckersley the supply of papers to them (i.e. Messrs Watson) (6 E. & B. at pp. 74, 75): "Prima facie, it would in turn be stopped; and the committee is the privilege of a trader in a free country, in also requested Messrs W. H. Smith & Son, all matters not contrary to law, to regulate his through whom some of the papers were being own mode of carrying it" (i.e. his trade) supplied to Messrs Watson, to stop supplying according to his own discretion and choice. If Messrs Watson unless Messrs Watson themselves the law has in

any matter regulated or restrained ceased to supply the appellant. In consequence his mode of doing this, the law must be obeyed. of the pressure thus brought to bear upon them, But no power short of the general law ought to



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