or other head officer, or on the town clerk, clerk, treasurer, or secretary of the corporation; possibly it might be served upon the chairman. In Tidd's Practice, vol. i. p. 119, 8th edition, it is stated that "in proceeding against a corporation, the process should be served on the mayor or other head officer." But in the present case the service has been simply upon the agent for the sale in this country of such arms as are sent to him. It is shewn by the affidavits that he cannot make any executory contract, unless it be sent out to the corporation and ratified in writing by them. At common law service upon such an agent would not be good. He has to carry on the business of the corporation, but only according to the power of attorney. In Evans v. The Dublin and Drogheda Railway Company (3) the defendants had not any office in England, and service upon a director of the company in England was held to be null and void. Therefore either the writ is bad, or the service is bad.

Edward Clarke, in support of the rule. -In The Carron Iron Company v. Maclaren (2) it was assumed that the Court had jurisdiction over the company, if it chose to execute such jurisdiction. Lord Chancellor Cranworth said, "The ground of the application of the appellants was, that they, as a foreign corporation (for this purpose, at least, foreign), were not affected by any of the rules of the Court of Chancery, and that they ought to be allowed to prosecute their own remedy as they might think fit. There is no doubt as to the power of the Court of Chancery to restrain persons within its jurisdiction from instituting or prosecuting suits in foreign Courts, wherever the circumstances of the case make such an interposition necessary or expedient." Although Lord St. Leonards dissented from the judgment, he did not differ in this respect; for he said, "The first question is, were the appellants within the jurisdiction so as to authorise the Court to enjoin their proceedings? They are incorporated, and they are called a Scotch corporation; their manufactories are in

(3) 14 Mee. & W. 142; s. c. 14 Law J. Rep. (N.S.) Exch. 245.

Scotland, but they have houses of business in England, which they necessarily carry on by agents or managers." In the present case, taking the writ and the affidavit together, it must be assumed that the contract was made in England, and the defendant, Van Oppen, carries on the business in Pall Mall.

[QUAIN, J.-Assuming that this Court has jurisdiction, you will be entitled to have your rule made 'absolute; for the affidavit admits that the service has come to the knowledge of the corporation.]

The passage referred to in Tidd's Practice simply means that the service should be served upon the principal responsible person, who, in this case, is manifestly Van Oppen, the manager. Next, it is submitted that this corporation comes within section 16. By section 227, "words imputing the singular number shall be applicable to several persons and parties as well as one person or party, and bodies corporate as well as individuals." It is said that Ingate v. The Austrian Lloyd's Company (1) decides that the 16th section does not apply, but it must be remembered that that was a decision upon a motion for leave to proceed under the 19th section (See the report of the case in the Law Journal Reports). The defendants are a corporation in this country, with a place of business in Pall Mall.

[Horace Lloyd, amicus curiæ, mentioned a case of Roberts v. The Grand Trunk Railway of Canada Company, in which he had been counsel.]

Cur. adv. vult.

The judgment of the Court (4) (on Jan. 31) was delivered by

BLACKBURN, J.-This was a rule obtained to shew cause why an order of Master Unthank, setting aside the writ and service in so far as regarded the Colt's Patent Fire Arms Manufactory Company, should not be rescinded.

The facts do not appear to have been very distinctly brought before the Master at Chambers, but we take them to be as follows. The Colt's Patent Fire Arms Manufactory and Company is not an

(4) Cockburn, C.J.; Blackburn, J.; Mellor, J.; and Quain, J.

English Corporation. It is an American company, incorporated by American law, but this foreign corporation has a place of business in England, and there, de facto, carries on business, just as an English corporation might do, though their principal place of business and head office is in America.

The contract, which the plaintiff alleges to have been broken, was, as he alleges, made in England by the foreign corporation thus carrying on business here. The writ was served on the manager of their business in England, who appears to be the head officer, and indeed the only officer of their English branch, but who certainly was not the head officer of the American Corporation in the United States.

Two points were raised and argued before us. It was said that a foreign corporation cannot be sued as defendants in an English Court at all. If so, there is no remedy at all in an English Court to enforce a contract made with a foreign corporation; inasmuch as the individuals who constitute the foreign corporation cannot be made liable, personally, on its contracts, or for its torts; see The General Steam Navigation Company v. Guillon (5).

There can be no doubt, since the case of The Dutch West India Company v. Van Moses (6), and Henriques v. The Dutch West India Company (7), which was a proceeding against the bail of the defendant, in the other case, and was affirmed in the House of Lords, that they can sue as plaintiffs.

Lord Raymond, in a note, tells us that the original cause was tried at Nisi Prius before Lord King, when Chief Justice of the Common Pleas, in 1734, when it appeared that the cause of action accrued in Holland, and adds, " and upon the trial, Lord Chancellor King told me he made the plaintiffs give in evidence the proper instruments, whereby, by the law of Holland they were effectually created a corporation there. And, after hearing the objections made by the counsel for Jacob Senia Henriquez van Moyses, he directed the

(5) 11 Mee. & W. 877; s. c. 13 Law J. Rep. (N.S.) Exch. 726.

(6) 1 Str. 612.

(7) 2 Ld. Raym. 1,532.

jury to find for the plaintiffs, which they accordingly did, giving them 13,7207. damages. And afterwards a motion was made in the Common Pleas to set aside the verdict, but by the unanimous opinion of that Court the motion was denied."

This points to a difficulty which arose both in The General Steam Navigation Company v. Guillon (5), and in Ingate v. Lloyd's Austria Company (1), for it must often be a nice and difficult question whether a continental company is really by the law of its own country a corporation or not. But no such difficulty arises where the company is one belonging to Scotland or one of our own colonies, or to those ports of the United States where the Common Law prevails.

In The Carron Iron Company v. Maclaren (2) the Master of the Rolls had granted an injunction against the defendants, a Scotch and therefore a foreign corporation. The injunction was dissolved on the ground that the appellants were foreigners, and, as such, entitled to the advantage which the law of their own country gave them, but no objection was raised on the ground that the Court of Equity could not treat a foreign corporation as a defendant.

It is true that we are not aware of any reported case in which a foreign corporation has been sued in a court of law, but it seems to follow from their being permitted to sue as plaintiffs, that they must be sueable as defendants. It is, however, enough to say that we will not on this ground prevent the plaintiffs from proceeding. The corporation may, if so advised, raise the question, after appearing, on the record.

The other and more difficult question is whether the corporation has been properly served, supposing them to be sueable. It was argued that the American Corporation was resident in America, and must be served, if at all, as a foreigner resident out of the jurisdiction, subject to the difficulties which are pointed out in Ingate v. Lloyd's Austria Company (1). This would be so, if the foreign company had merely employed an agent here, who made a contract for them. But we think it is different where the foreign corporation actually has a place of business. and trades in this country. This is a

point of very considerable practical importance. There are already several Scotch Banking Corporations that have established branches in London. We see from this case that there is at least one American Corporation that has set up a branch business here, and there will probably soon be more.

Such a corporation does, for many purposes, reside both in England and in its own country. In the case of The Carron Iron Company v. Maclaren (2), Lord St. Leonards, taking a different view of the facts from that taken by Lords Brougham and Cranworth, thought the Scotch Corporation was resident in England.

We think that there is great good sense in what Lord St. Leonards stated to be the law, in his view of the facts. He says: "If the service on the agent is right, it is because in respect of their house of business in England they have a domicile in England; and in respect of their manufactory in Scotland they have a domicile there. There may be two domiciles and two jurisdictions, and in this case there are, as I conceive, two domiciles and a double sort of jurisdiction, one in Scotland and one in England, and for the purpose of carrying on their business, one is just as much the domicile of the corporation as the other."

The majority of the Lords took a different view of the facts, and thought that though the corporation possessed property in England, and had agents there, they did not carry on business there, but we do not find that they differed from Lord St. Leonards' view of the law, if they had agreed as to his facts, and in the present case the fact is clear that the American company are carrying on trade themselves in London, and therefore we think must be treated as resident there.

One more point has to be noticed. At common law the service of a writ on a corporation aggregate, which from the nature of the body could not be personal, was by serving it on a proper officer so as to secure that it came to the knowledge of the corporation, and then proceeding by distress-See Tidd's Practice, p. 121, edition of 1828. The 2nd Wm. 4. c. 39. s. 13, and the 15 & 16 Vict. c. 76. s. 16, in fact only re-enact the old law as to

what should be service on a corporation. The clerk or officer must be in the nature of a head officer, whose knowledge would be that of the corporation. We think that when once it is established that the corporation is to be treated as resident in England, the proper officer is the officer at the English branch, and that it is not necessary to serve the process on the officer at the head office abroad.

We have been furnished, by the courtesy of Mr. Horace Lloyd, as amicus curiæ, with the papers in a case of Roberts v. The Grand Trunk Railway of Canada.

It appears that the defendants being a Canadian Corporation had a board of directors who acted for them in England. The writ was served on the secretary of that board, and on an affidavit of service judgment was signed. Crowder, J., at Chambers, stayed all proceedings on the judgment, on the terms that the defendant should bring money into Court. The case was, therefore, in its circumstances, very similar to the present.

The present Chief Justice of the Common Pleas, on an affidavit of these facts and an affidavit of merits, obtained in the Court of Exchequer a rule nisi to set aside the judgment. "The rule was made absolute. The defendants to appear in ten days. The money to remain in Court to abide the order of the Court or a judge. Costs of the application to be costs in the cause."

If we could be sure that this was the judgment of the Court pronounced in invitos, it would seem clear that the Court of Exchequer thought the judgment regular and only to be set aside on terms, and it would therefore be an authority in favour of the view we take. But we rather think that the matter was settled by the agreement of counsel, without the Court being called on to pronounce any opinion on the subject, and therefore we do not rely on this as a decision.

The result is that the rule in the present case must be made absolute. Rule absolute.

Attorneys-Harper, Broad & Battcock, for plaintiff; G. E. Thomas, for defendants.

it

In an action for breach of a charterparty, by which it was agreed that the defendants' vessel should proceed to a port of loading, and after loading a cargo convey to a foreign port, the act of God, Queen's enemies, restraints of princes and rulers, fire, and all and every other dangers and accidents of the seas. during the voyage excepted, it was pleaded that before breach there was a war between the country of the port of destination and another country, so that the performance of the charter-party became illegal, and the defendants refused to perform it:-Held, that the plea was good, as the blockade was within the meaning of the exception, "restraints of princes," and that the defendants were not bound to have proceeded to the port of loading, or to have waited in anticipation of the removal of the blockade, in the absence of anything to lead to the inference that it would be removed within a reasonable time.

Declaration-that by a certain charterparty between the plaintiffs and the defendants, it was agreed that the defendants' vessel, The Martindale, being tight, staunch, and strong, and every way fitted for the voyage, should with all convenient speed sail and proceed to a spout as directed by the plaintiffs or their agent, and there take on board a full and complete cargo of coals, not exceeding what she could reasonably stow and carry over and above her tackle, apparel, provisions and furniture; and, being so loaded, the captain should immediately call at the office of the plaintiffs or their agents, and clear with them at the custom-house, also sign bills of lading without qualification as they present them, but without prejudice to the charter-party, and then, as soon as wind and weather should permit, should proceed to Hamburgh, and there deliver the same to the freighters or assigns, they paying the freight for the same at a certain agreed rate, the act of God, Queen's enemies, restraints of princes and rulers, NEW SERIES, 41.— Q.B.

fire, and all and every other dangers and accidents of the seas, rivers and naviga tion, of whatsoever nature or kind during the voyage always excepted. Averment of conditions precedent. Breach, that the defendants, before any breach by the plaintiffs of the charter-party, and although not prevented by any of the excepted perils, causes, matters or things, absolutely refused to observe and fulfil the terms of the charter-party, and to let their ship take or carry any goods of the plaintiffs to the port of Hamburgh, and gave notice to the plaintiffs that they absolutely refused so to do, and that they would not observe or fulfil, and absolutely renounced the charter-party, and wrongfully and in violation of the charter-party discharged the plaintiffs from directing the ship to sail or proceed to any spout, and from otherwise observing and fulfilling the terms of the charter-party, and thereby wrongfully broke and violated the charter-party, and by reason of the premises the plaintiffs became and were unable to have the charter-party observed and fulfilled by the defendants, and uselessly incurred great expense in and about procuring cargo for the ship, and were prevented from sending the goods to Hamburgh, &c.

Fifth plea-That after the making of the charter-party, and before any breach thereof, a war was being carried on between the peoples of Germany, wherein the port of Hamburgh was situated, and the peoples of France, and the port of Hamburgh was then blockaded by the fleets of France, and Her Most Gracious Majesty the Queen by her royal procla mation enjoined all her subjects to maintain a strict neutrality between the belligerent peoples, and not to commit any act contrary to or in violation of the law of nations, and the defendants say that they were and are British subjects, and that the ship was a British ship, and the cargo was a cargo to be carried to and delivered at the port of Hamburgh, wherefore the further performance of the charter-party became and was illegal, and the defendants, as they lawfully might, refused further to carry out the same.

Demurrer and joinder in demurrer.
Sixth plea-That after the charter-

X

party was entered into, and before any breach thereof by the defendants, a state of war arose and existed, as in the last plea mentioned, and the port of Hamburgh became and was blockaded by the French, and Her Majesty the Queen published a proclamation as aforesaid, and thereupon. the defendants having notice of the blockade and of the proclamation, refused to allow the ship to receive a cargo for the purpose of then carrying the same to the blockaded port whilst the same was so blockaded, and of running the blockade with the cargo, for the purpose of delivering the same at the port during the continuance of the blockade, which is the breach complained of and not otherwise.

Demurrer and joinder in demurrer.

Seventh plea-The defendants say that after the charter-party was made, and before any breach by them of the charterparty, a state of war existed, and the port of Hamburgh was blockaded, and Her Majesty the Queen published her proclamation as in the fifth plea stated, and that the defendants were ready and willing to perform the charter-party on their part so far as they lawfully might, and so far as they were not hindered and prevented by any of the excepted causes, and that the ship could not have received a cargo, nor could the charter-party have been carried out and fulfilled within a reasonable time except by the ship receiving a cargo for the purpose of carrying the same to the blockaded port, and of running the blockade with the cargo, and of delivering the same at the port whilst so blockaded, wherefore the defendants refused to carry out the charter-party.

Demurrer and joinder in demurrer. Cohen, in support of the demurrers.The pleas are no answer to the action. With regard to the fifth and sixth pleas, the defendants must shew that the performance of their contract has been rendered illegal by the law of this country, and this they have failed to do. In The Helen (1), Dr. Lushington explains clearly that a contract in a neutral country for the purpose of breaking the blockade of a foreign port is not illegal. At any rate, there was nothing to excuse the defen

(1) 35 Law J. Rep. (N.s.) Adm. 2.

dants from proceeding to the port of loading and shipping the cargo. The blockade might only have been a temporary one, and it is important that the shipowners should do everything in their power to perform the contract as soon as the obstacle to its performance is removed. With regard to the seventh plea, the clause in the charter-party as to restraints of princes does not aid the defendants' case. There was no actual restraint, but only an apprehension of restraint. In Hadley v. Clarke (2) it was held that an embargo by order in Council only suspended but did not dissolve the shipowner's contract. The blockade may at any moment be removed.

[BLACKBURN, J.-But it may also continue for an indefinite time; the case must be looked upon as if the duration of the blockade were quite uncertain.]

Conceding that a blockade comes within the words "restraints of princes," so far as the delivery of the cargo is concerned, the shipowner must carry out his contract so far as he can. The defendants do not appear to have waited for a reasonable time to see whether the blockade would be raised, so that there has been a breach of their contract, though the damages may be only nominal. In Atkinson v. Ritchie (3) it was held that the shipmaster, who refused to proceed with loading his cargo at a Russian port, because of a threatened embargo, was not protected by the exception "restraints of princes." In Spence v. Chadwick (4) an action for breach of a contract to carry goods safely from Gibraltar to London, "the act of God, the Queen's enemies, fire, and dangers of the seas, rivers, and navigation (save risk of boats) excepted," it was held to be no answer that the goods in the course of the voyage were without the fault of the defendant confiscated by the Spanish authorities, as the case was not brought within any of the exceptions in the contract.

[ BLACKBURN, J.—In that case there was no exception of restraints of princes.] An embargo would only suspend the (2) 8 Term Rep. 259. (3) 10 East, 530.

(4) 10 Q.B. Rep. 517; s. c. 16 Law J. Rep. (N.S.) Q.B. 313.