FACTORY. COMMISSION. POWER OF GENERAL SPECIAL GENERAL AND SPECIAL TITLE VI. THE FACTORY AND COMMISSION. PERSONS who are of full capacity to act by themselves can in general act by means of others empowered by them for that purpose. In like manner, minors and married women can act by means of others duly empowered by them, with consent of their curators and husbands respectively; and, in some other cases, the power of acting can be deputed by one person to another. The persons empowered by others to act for them are called factors, or commissioners, or attorneys; and the deeds by which they are appointed bear the name of factories, commissions, or powers or letters of attorney. These deeds are all, substantially, of the same nature. Where the party to be empowered is called a factor, as in the ordinary case of one who is to uplift rents and manage a land-estate or house property,-the deed is called a factory. When the party is to have powers of a higher or larger and more unusual character, for example, to sell land or to make up titles to an estate,the term 'commission' is usually employed to describe the deed. The name of powers or letters of attorney, I think, is imported from England. It is usually employed as descriptive of empowering deeds which are to be used in England, or in the colonies or foreign parts; and for deeds authorising the buying and selling of stocks or shares of stock in this country. But, provided the requisite powers are duly given, it matters not whether the deed is described by the one name or the other. We can have a commissioner to uplift rents, an attorney to sell lands or make up titles,—indeed the procuratory in conveyances of lands is often extended to the appointment of an attorney for the latter purpose,—and we can have a commissioner to buy and sell stocks and shares. The great practical distinction, applicable to deeds of the class now before us, is that they are general or special, or both general and special. The general factory confers powers of management only of the most simple and ordinary kind. The special factory authorises to be done simply the act or acts which it expressly names, and nothing more. The nature of those acts may, or may not, be such as would fall under a general factory. But factories are very often both general and special. We frequently have added to a general factory a special clause, or set of special clauses, applicable to one or more particular act or acts, or class of acts. In such cases, in conformity with the principles usually applicable to deeds with both general and special clauses, the special may operate a limitation of the general factory, as the special clauses will confine it to acts of the kinds authorised by these special clauses, and which may be less than a general factory would authorise. But it is usual to find the special clauses go beyond the general powers, and authorise acts which the general would not embrace. The clauses of the factory, whether general or special, or both united, CLAUSES OF are as follows: 1. The narrative or introductory, containing the cause of granting, which may be (for example) absence, or intended absence of the granter from Scotland, sickness of the granter, or, generally, ' certain good causes and considerations.' 2. The nomination of the factor or factors. 3. The empowering clause or clauses, containing the description or enumeration of the powers which the factor or factors may exercise. 4. A declaration that all acts and deeds lawfully done by the factor or factors, in virtue of these powers, shall be equally valid as if done by the granter himself. 5. It is usually provided that the factory shall subsist until recalled by a writing under the granter's hand; but a provision to that effect is not necessary either to make the deed good until recalled, or to give the granter power to recal. 6. The factor is taken bound to account to the granter for his intromissions, and to pay over the free balance of cash in his hands, whenever required; and, if he is to have remuneration, it will here be Isaid that he is to retain a reasonable sum on that account. But it is usual and proper to declare that persons transacting with the factor shall have no concern with this obligation to account, the same being merely personal as between the granter and factor. 7. & 8. There will then be the registration and testing-clauses in usual form. FACTORY. We shall consider these clauses in their order as above; the only re- NARRATIVE. mark occurring on the narrative or introductory clause being, that the factory or commission, when of a very special nature, will require to contain a pretty full narrative in order to make the empowering clause intelligible. As regards the appointment of the factor or factors, if two or more APPOINTMENT are named, the powers must be exercised by them jointly, unless the OF FACTORS. contrary is specified. It will generally be convenient to name the majority, while more than two survive and continue acting, to be a quorum; and in some cases, such as commissions for making up titles, the powers may with propriety be conferred on each of the parties CLAUSES OF POWERS OF SPECIAL named, so that any one of them may perform all the necessary acts with or without concurrence of the others. There may, or may not, be a sine quo non, as in the case of trusteeships. As regards the powers, a mere general factory is of very limited operation. In words it says that the factor is to manage the granter's affairs, and act for him therein, as he could do himself. But, under such a deed, it is doubtful if the factor could do more than perform such acts of ordinary administration as are necessary to preserve his constituent's estate, and prevent it from becoming unproductive. I doubt if a factory so general would authorise the factor to uplift rents and interests, except in a case of emergency; and it is certainly usual to give special powers when such acts are to be executed. In cases such as the following, the general factory will not (save in very exceptional circumstances) serve; special powers must be conferred on the factor: 1. Where lands or other heritable estate are to be sold by him for the owner. The importance of being clear and explicit, in framing the powers of a factory as to this point, will be shown by the case of Thomas.1 The Court were there equally divided upon the question whether the factory, which was by testamentary trustees, in favour of one of their own number, was, by itself, so expressed as to confer the power of sale on the factor. 2. Moveables of great value cannot be sold by a factor without special powers from the owner. The question of degree, as regards the value, will be judged of in every case according to circumstances. 3. The power to purchase lands or moveables stands, as far as the constituent is concerned, on the same footing as the power to sell. Of course, a factor buying lands, though without power to bind his constituent, can effectually bind himself. Under this head may be classed the power of a factor to contract to acquire for his constituent a piece of ground in feu. In the case of Steuart, the question was raised whether an averment of verbal authority to contract for a feu could competently be proved by parole. 4. Power to serve any one heir to a predecessor requires a special mandate.3 Under our former law, an agent and factor acting in virtue of a general factory was held to have sufficient power to make up his constituent's title to a lucrative succession by service; the constituent having written to the factor, desiring that he should be served heir in the estate, 'if not already set about;' and the service having been expede when the constituent was on military duty abroad. A mere general power would not now authorise the expeding of a service. But, where a lucrative succession can be taken up by precept or writ 1 Thomas v. Walker's Trustees, 4 July 1829, 7 Sh. 828. 2 Steuart v. Johnston, 17 July 1857, 19 D. 1071. 3 10 & 11 Vict. cap. 47, sect. 4. 4 Molle v. Riddell, 13 Dec. 1811, F. C. of clare constat, or otherwise, without a service, a factor, in circumstances and with powers and instructions similar to those in Molle's case, could and ought to make up the title in his constituent's person.* а Where special power is to be granted for the purpose of making up titles, it should be expressed comprehensively,-to make up the constituent's titles to all lands and other heritages to which he has succeeded, as heir of a particular predecessor; and to obtain him served heir accordingly; and to expede all writs and deeds, and do all acts necessary for that purpose. The mere power to obtain the constituent entered as heir implies a power to do whatever may be requisite to support the petition for service, and the heir's title; and, therefore, to raise an action of reduction of an adverse service.1 But where it is clear that such an action, or any other action in connection with the titles, will have to be raised, special power to raise the action should be given to the factor. Special powers are likewise required to enter the constituent's vassals,b grant leases to his tenants, and to remove such tenants; likewise to compromise claims made by the constituent against others, or by others against him, or to submit such claims to arbitration, or to postpone the security for a debt due to his constituent to securities for debts due to third parties.3 BORROW. Power to borrow money on behalf of the constituent, and to bind him POWER TO personally for repayment, or to dispone his estate in security of payment, requires a special clause. When a power to sell or borrow money on the security of ships, or shares of ships, is to be exercised at any place out of the country where the port of registry is situated, the proper mode of proceeding will be to give the attorney a certificate of sale, or a certificate of mortgage, as authorised by the Merchant Shipping Act of 1854,* already adverted to.5 In other cases where power to borrow is given, the clause of registration in the factory ought to bear a consent to the registration not only of the factory, but of all bonds and dispositions in security, or other deeds granted in the exercise of the power, for preservation and for execution, on six days' charge. But, where a factor had special power to sell certain railway shares, and to execute all acts and deeds, thing and things, requisite with regard to the shares; and when calls had accumulated, for which the shares were in danger of forfeiture; the Court held the factor's powers sufficient to 1 Gifford v. Gifford, 11 Feb. 1834, 12 Sh. 421. 2 Hollinworth v. Dunbar, 21 Jan. 1813, F. C. 3 Bridges v. Willison's Trustees, 22 Nov. 4 17 & 18 Vict. cap. 104, sect. 76, et seq. a It was the factor's duty to complete his constituent's title without unnecessary delay, because by the former law the heir, while possessing on apparency, could not have dealt with the estate as his own, or transmitted it to his heirs. But, as a personal right to land now vests in an heir ipso jure on the ancestor's death (37 & 38 Vict. cap. 94, sect. 9), it is not of such importance that the title should be at once completed. b The renewal of investiture was abolished by 37 & 38 Vict. cap. 94, sect. 4, but heirs of vassals may still be entered by writ of clare constat. 2 F VOL. I. DELEGATION TO AMPLIFICATION POWERS. enable him to borrow money on the security of the shares, in order to pay the calls and preserve the shares.1 A factor requires special power in order to delegate his powers to a sub-factor. When the appointment of sub-factors is authorised, the power ought to express whether the principal factor is to be liable for the actings and intromissions of his sub-factor. In regard to these and other cases, where there ought to be special powers, it is important to keep in view that such powers are necessary, not only that the constituent may be bound, but also that the factor may be free of personal responsibility. It is also necessary, for this last purpose, that the transaction be done factorio nomine, and not in the name of the factor as if for himself. Thus, where a factor or agent, without special authority, and without communicating to his constituent, accepted bills in his own name for rent due to his constituent, thus lending out his constituent's money in his own name,-the factor was held liable to make good the loss arising by the debtor's bankruptcy.3 And where a law-agent, without special power, submitted his client's case to arbitration, and the client repudiated the submission, the agent was held personally liable to implement the decree-arbitral.* I have mentioned that a factor, who is to draw the rents of land or houses, has usually special power to that effect in his factory. And though perhaps such power might authorise all legal proceedings necessary for securing and recovering the rents, it is advisable not only to give power to institute all requisite proceedings for these purposes, but specially to authorise application for warrants of sequestration and sale of tenant's crop and effects, when such proceedings are competent, and the factor shall think them necessary. It is also of use, in the case of factories for the management of landestates, to give special power to the factors to attend meetings of the heritors of parishes, and turnpike and statute-labour road meetings, on behalf of their constituents; and to act and vote at such meetings as the constituent himself could do if present. It is further important, in framing a factory or commission which may subsist for some length of time, and under which it is intended to confer extensive powers, to frame the special clauses in a form so comprehensive as to embrace transactions of the various classes to which the power relates, whether arising out of the then existing circumstances of the party, or through other estate devolving upon him, or circumstances connected with such other estate. For example, if power is to be granted to make up the constituent's titles on the succession to his father, it would be advisable to authorise the factor to obtain him served heir, not only of his father, but also of any other of his predecessors to whom he 1 Thomson v. Fullarton, 23 December 1842, 5 D. 379. 2 Dempster v. Potts, 18 February 1836, 14 Sh. 521. 3 Arbuthnot & Co. v. Ainslie, 14 July 1739, M. 4065; as reversed, 7 Feb. 1743, |