Practice. Procedure after dissolution. Somerville v. the action, or at least that it is raised with the approval of what we have before seen constitutes the will of the company. If, therefore, there be reason to believe that this presumption is not in accordance with the fact, and that a portion of the membership is making use of the company name to maintain an action, without the concurrence or against the will of the company, process will be sisted until all the others sist themselves as parties, or until the objection founded on their non-concurrence has been removed (a). To obviate questions of this kind, it has not been unusual in our later practice to raise actions in the name of the company and its whole partners; and the practice has much to recommend it (b). In general it is desirable, before raising an action in the company name, to call a meeting of all the partners, and obtain their authority for the contemplated procedure. When this has been done, it is no objection that a minority do not concur, unless very good grounds can be given for their refusal (c). After a company has been dissolved, the quondam partners may agree among themselves to appoint one or more persons, by the intervention of whom they may sue and be sued, to the effect of winding up the concern. In such a case the quondam partners no longer stand in the relation of socii to each other, but continue liable in certain joint obligations, and entitled to exercise certain rights in virtue of the former existence of the partnership relation which is now dissolved. They are therefore entitled to use the privilege which the common law concedes to them as individuals, to nominate a commissioner or commissioners to sue for and defend their common interests (d). In a late case, it seems to have been held that a mutual insurance association, neither incorporate nor entitled to the benefits of the Friendly Society Acts, is not to be regarded as a trading association, and therefore not in law a separate legal person in the same way as a mercantile or trading company.' It was therefore assumed, that when such an association was sued, the plea could not be taken that it was not called by its separate person as (b) See Shand's Prac. p. 184. (c) Shotts Iron Co., supra; Wilson v. Kippen, 1822, 1 S. 282. (a) May v. Matthews, 1834, 13 S. 94; Shotts Iron Co. v. Hopkirk, 1828, 6 S. 399; Aitchison and Co. v. Burnside's Trs., 1832, 10 S. 296; Sclater v. Clyne, 1831, 9 S. 248. (d) Jameson v. Watson, 1852, 14 D. 1021. well as in the names of individual members; and it was laid down that the proper mode of suing such an association was to call all the members; and that when, from their number or fluctuating character, this was impossible, some modification of the rule was required to prevent a denial of justice. In the very special circumstances of the case, the action was allowed to proceed upon its being directed against all the members of the committee of management, sixteen in number, as representatives of the association (a). When some of the partners who ought to have been called as Amendment of pursuers or defenders have been omitted, the mistake may generally be rectified by an amendment, or at all events by a supplementary summons (b); but not when the instance is radically defective (c). When the sole surviving partner of a company raised action in his own name for what turned out to be a company debt, decree in his favour was granted, on a disclaimer of all interest by the heir of the deceased partner being produced (d). libel. against latent As a general rule, decree obtained against a company is res Res judiceta judicata against a latent partner; it would seem, however, that in partner. special cases of an equitable kind this rule will not be rigidly enforced (e). CHAPTER IV. Common law. Act 1863. Act 1862. Act 1845. HOW CORPORATIONS SUE AND ARE SUED. PROPER Corporations sue and are sued in the corporate name conferred upon them by their special act, charter, or registered memorandum of association. It is not necessary, nor indeed proper, that there should be any joinder of the names of members or officials, unless this is specially required by the instrument of incorporation (a). The possession of a corporate name is one of the naturalia of a proper corporation; and the general rule of law is, that without dissolution and reconstruction no alteration can be made upon the name which the company received when it was brought into existence as a corporation. It is, however, enacted by the Companies Clauses Act, 1863, 26 and 27 Vict. c. 118, part iv., that where, by any special act subsequently passed and incorporating that part of the Act, the name of any company previously or subsequently incorporated is changed, such change shall be valid and effectual to all intents and purposes, and shall not abate actions then pending, or affect deeds or contracts previously made. Companies incorporated under the Act of 1862, are by sec. 13 of that Act entitled, with the sanction of a special resolution and the approval of the Board of Trade, to change their names, the registrar entering the new name and issuing a certificate of incorporation altered accordingly. In the case of companies formed under the Company Clauses Consolidation (Scotland) Act, 1845, judicial writs, such as sum (a) Whitehaven and Furness Ra. Co., 1848, 10 D. 1127. See Ersk. i. 7, compared with Bow v. Patrons of Cowan's Hospital, 1825, 4 S. 280. See Trinity House v. Magistrates of Edinburgh, 1829, 7 S. 374. monses, demands, or notices, requiring authentication, must be under the common seal of the corporation, or else must be signed by two of its directors, or by its treasurer or secretary (sec. 141). Companies incorporated under the Companies Act, 1862, sue Act 1862. and are sued in the name contained in the first article of their registered Memorandums of Association (secs. 8, 9, 10, 11, 12, and 13, compared with sec. 18); and any summons, notice, order, or proceeding, requiring authentication by the company, must be either under the common seal, or else signed by a director, secretary, or other authorized officer of the company (sec. 64). In the case of unregistered companies brought under the operation of the Act 1862 for the purpose of winding up, if the company has no power to sue or be sued in a common name, the official liquidator or liquidators may, in his or their official name or names, or in such name or names as the Court making order for the winding up may direct, bring or defend any actions, suits, or other legal proceedings relating to the property vested in him or them as liquidators, or any actions, suits, or other legal proceedings necessary to be brought or defended for the purpose of winding up the company and recovering the property thereof (sec. 203). Acts. Companies formed under the Letters Patent Acts are not proper Letters Patent corporations, though they may be possessed of some of the privileges peculiar to such associations. They cannot therefore sue or be sued in a corporate name, but appear judicially in the names of two or more officers specially appointed in their contracts of association for this purpose (7 Gul. IV. and 1 Vict. c. 73, ss. 2 and 5). FOREIGN COMPANIES. regarding. It appears to be a settled principle of international law, that General rules associations duly incorporated or formed into societies for trading purposes according to the laws of the country to which they belong, may validly make contracts in other countries, and may sue or be sued in any country within the jurisdiction of whose courts they happen to come (a). Whether they are so formed or incorporated (a) See, as to this, Story's Conflict of Laws, s. 565; Bank of Augusta v. Earle, 13 Pet. 519, 13 Curt. 277, 2 Kent's Com. 284 seq.; Dutch West International conventions. in their own countries is a question of fact, the onus of proving which lies on the pursuer (a). It must be observed, however, that the tribunals will not take notice of a foreign government not recognised by the government of the country from which they derive their jurisdiction (b). To avoid the embarrassments that often arise when it is necessary for companies to sue or be sued before foreign tribunals, conventions are sometimes entered into between friendly states. The most important of these, in so far as this country is concerned, is that entered into between her present Majesty and the Emperor of the French. It was signed at Paris, April 30, 1862; and ratifications were exchanged at that capital, May 15, in the same year. It provides that all companies, and other associations, commercial, industrial, or financial, constituted and authorized in conformity with the laws in force in Great Britain or France, shall have the power of exercising all their rights, and of appearing before the tribunals, whether for the purpose of bringing action or for defending the same, throughout the dominions and possessions of either power, subject to the sole condition of conforming to the laws of such dominions and possessions. And it declares that these provisions are equally applicable to companies formed before as to those formed after its date. A similar convention exists between Great Britain and Belgium, also signed and ratified the same year (c). B. and C. 427; Sudlow v. Dutch D. 62, 1858, 3 Macq. 99; Hamilton v. Dutch East India Co., 1731, M. 4548, (1732) 1 Pat. App. 69. (a) Dutch East India Co. v. Van Mayers, Str. 612; Bank of St Charles v. De Bernales, 1 Car. and Pa. 569; Henriques v. Dutch West India Co., 2 Lord Raymond 1532. (b) City of Berne v. Bank of England, 9 Ves. 347. (c) London Gazette, 9 Dec. 1862, pp. 62-66. |