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or other head officer, or on the town Scotland, but they have houses of busiclerk, clerk, treasurer, or secretary of the ness in England, which they necessarily corporation; possibly it might be served carry on by agents or managers.” In the upon the chairman.' In Tidd's Practice, present case, taking the writ and the vol. i. p. 119, 8th edition, it is stated that affidavit together, it must be assumed that “in proceeding against a corporation, the the contract was made in England, and process should be served on the mayor or the defendant, Van Oppen, carries on the other head officer.” But in the present business in Pall Mall. case the service has been simply upon the (Quain, J.-Assuming that this Court agent for the sale in this country of such has jurisdiction, you will be entitled to arms as are sent to him. It is shewn by have your rule made 'absolute; for the the affidavits that he cannot make any affidavit admits that the service has come executory contract, unless it be sent out to the knowledge of the corporation.] to the corporation and ratified in writ- The passage referred to in Tidd's Pracing by them. At common law service tice simply means that the service should upon such an agent would not be good. be served upon the principal responsible He has to carry on the business of the person, who, in this case, is manifestly corporation, but only according to the Van Oppen, the manager. Next, it is power of attorney. In Evans V. The submitted that this corporation comes Dublin and Drogheda Railway Company within section 16. By section 227, “words (3) the defendants had not any office in imputing the singular number shall be England, and service upon a director of applicable to several persons and parties the company in England was held to be as well as one person or party, and bodies null and void. Therefore either the corporate as well as individuals." It is writ is bad, or the service is bad.

said that Ingate v. The Austrian Lloyd's Edward Clarke, in support of the rule. Company (1) decides that the 16th sec-In The Carron Iron Company v. Mac- tion does not apply, but it must be relaren (2) it was assumed that the Court membered that that was a decision upon a had jurisdiction over the company, if it motion for leave to proceed under the 19th chose to execute such jurisdiction. Lord section—(See the report of the case in the Chancellor Cranworth said, “ The ground Law Journal Reports). The defendants of the application of the appellants was, are a corporation in this country, with a that they, as a foreign corporation (for place of business in Pall Mall. this purpose, at least, foreign), were not [Horace Lloyd, amicus curia, mentioned affected by any of the rules of the Court a case of Roberts v. The Grand Trunk of Chancery, and that they ought to be Railway of Canada Company, in which he allowed to prosecute their own remedy as had been counsel.] they might think fit. There is no doubt

Cur. adv. vult. as to the power of the Court of Chancery to restrain persons within its jurisdiction The judgment of the Court (4) (on from instituting or prosecuting suits in Jan. 31) was delivered by foreign Courts, wherever the circum- BLACKBURN, J.- This was a rule obstances of the case make such an inter- tained to shew cause why an order of position necessary or expedient.” Al. Master Unthank, setting aside the writ though Lord St. Leonards dissented and service in so far as regarded the Colt's from the judgment, he did not differ in Patent Fire Arms Manufactory Comthis respect; for he said, “The first ques- pany, should not be rescinded. tion is, were the appellants within the The facts do not appear to have been jurisdiction so as to authorise the Court very distinctly brought before the Master to enjoin their proceedings ? They are at Chambers, but we take them to be as incorporated, and they are called a Scotch follows. The Colt's Patent Fire Arms corporation ; their manufactories are in Manufactory and Company is not

an

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

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

English Corporation. It is an American jury to find for the plaintiffs, which they company, incorporated by American law, accordingly did, giving them 13,7201. but this foreign corporation has a place of damages. And afterwards a motion was business in England, and there, de facto, made in the Common Pleas to set aside carries on business, just as an English the verdict, but by the unanimous opinion corporation might do, though their prin- of that Court the motion was denied.” cipal place of business and head office is This points to a difficulty which arose in America.

both in The General Steam Navigation ComThe contract, which the plaintiff alleges panyv. Guillon (5), and in Ingate v. Lloyd's

v to have been broken, was, as he alleges, Austria Company (1), for it must often be made in England by the foreign cor- a nice and difficult question whether a poration thus carrying on business here. continental company is really by the law The writ was served on the manager of of its own country a corporation or not. their business in England, who appears to But no such difficulty arises where the be the head officer, and indeed the only company is one belonging to Scotland or officer of their English branch, but who one of our own colonies, or to those ports certainly was not the head officer of the of the United States where the Common American Corporation in the United Law prevails. States.

In The Carron Iron Company v. Maclaren Two points were raised and argued (2) the Master of the Rolls had granted before us. It was said that a foreign an injunction against the defendants, a corporation cannot be sued as defendants Scotch and therefore a foreign corporation. in an English Court at all. If so, there is The injunction was dissolved on the no remedy at all in an English Court to ground that the appellants were foreigners, enforce a contract made with a foreign and, as such, entitled to the advantage corporation ; inasmuch as the individuals which the law of their own country gave who constitute the foreign corporation them, but no objection was raised on the cannot be made liable, personally, on its ground that the Court of Equity could not contracts, or for its torts ; see The General treat a foreign corporation as a defendant. Steam Navigation Company v. Guillon (5). It is true that we are not aware of any

There can be no doubt, since the case reported case in which a foreign corpoof The Dutch West India Company v. Van ration has been sued in a court of law, Moses (6), and Henriques v. The Dutch but it seems to follow from their being West India Company (7), which was a pro- permitted to sue as plaintiffs, that they ceeding against the bail of the defendant, must be sueable as defendants. It is, in the other case, and was affirmed in the however, enough to say that we will not House of Lords, that they can sue as on this ground prevent the plaintiffs from plaintiffs.

proceeding. The corporation may, if so Lord Raymond, in a note, tells us that advised, raise the question, after appearing, the original cause was tried at Nisi Prius on the record. before Lord King, when Chief Justice of The other and more difficult question the Common Pleas, in 1734, when it is whether the corporation has been proappeared that the cause of action accrued perly served, supposing them to be sueable. in Holland, and adds, “and upon the trial, It was argued that the American CorpoLord Chancellor King told me he made ration was resident in America, and must the plaintiffs give in evidence the proper in- be served, if at all, as a foreigner resident struments, whereby, by the law of Holland out of the jurisdiction, subject to the they were effectually created a corporation difficulties which are pointed out in there. And, after hearing the objections Ingate v. Lloyd's Austria Company (1). made by the counsel for Jacob Senia This would be so, if the foreign company Henriquez van Moyses, he directed the had merely employed an agent here, who

made a contract for theia. But we think (5) 11 Mee. W. 877; 8. c. 13 Law J. Rep.

it is different where the foreign corpo(N.s.) Exch. 726. (6) 1 Str. 612.

ration actually has a place of business (7) 2 Ld. Raym. 1,532.

and trades in this country.

This is a

a

point of very considerable practical im- what should be service on a corporation. portance. There are already several The clerk or officer must be in the nature Scotch Banking Corporations that have of a head officer, whose knowledge would established branches in London. We see be that of the corporation. We think from this case that there is at least one that when once it is established that the American Corporation that has set up a corporation is to be treated as resident in branch business here, and there will pro- England, the proper officer is the officer bably soon be more.

at the English branch, and that it is not Such a corporation does, for many pur- necessary to serve the process on the poses, reside both in England and in its officer at the head office abroad. own country. In the case of The Carron We have been furnished, by the courtesy Iron Company v. Maclaren (2), Lord St. of Mr. Horace Lloyd, as amicus curice, Leonards, taking a different view of the with the papers in a case of Roberts v. The facts from that taken by Lords Brougham Grand Trunk Railway of Canada. and Cranworth, thought the Scotch Cor- It appears that the defendants being a poration was resident in England.

Canadian Corporation had a board of We think that there is great good sense directors who acted for them in England. in what Lord St. Leonards stated to be The writ was served on the secretary of the law, in his view of the facts. He that board, and on an affidavit of service says: • If the service on the agent is judgment was signed. Crowder, J., at right, it is because in respect of their Chambers, stayed all proceedings on the house of business in England they have a judgment, on the terms that the defendant domicile in England; and in respect of should bring money into Court. The case their manufactory in Scotland they have was, therefore, in its circumstances, very a domicile there. There may be two similar to the present. domiciles and two jurisdictions, and in The present Chief Justice of the Com. this case there are, as I conceive, two mon Pleas, on 'an affidavit of these facts domiciles and a double sort of jurisdiction, and an affidavit of merits, obtained in the one in Scotland and one in England, and Court of Exchequer a rule nisi to set for the purpose

of

carrying on their aside the judgment. “The rule was made business, one is just as much the domi- absolute. The defendants to appear in ten cile of the corporation as the other.” days. The money to remain in Court to

The majority of the Lords took a abide the order of the Court or a judge. different view of the facts, and thought Costs of the application to be costs in the that though the corporation possessed property in England, and had agents If we could be sure that this was the there, they did not carry on business judgment of the Court pronounced in there, but we do not find that they differed invitos, it would seem clear that the Court from Lord St. Leonards' view of the law, of Exchequer thought the judgment if they had agreed as to his facts, and in regular and only to be set aside on terms, the present case the fact is clear that the and it would therefore be an authority in American company are carrying on trade

favour of the view we take. But we themselves in London, and therefore we rather think that the matter was settled think must be treated as resident there. by the agreement of counsel, without the

One more point has to be noticed. At Court being called on to pronounce any common law the service of a writ on a opinion on the subject, and therefore we corporation aggregate, which from the do not rely on this as a decision. nature of the body could not be personal, The result is that the rule in the was by serving it on a proper officer so present case must be made absolute. as to secure that it came to the knowledge

Rule absolute. of the corporation, and then proceeding by distress—See Tidd's Practice, p. 121,

Attorneys-Harper, Broad & Battcock, for edition of 1828. The 2nd Wm. 4. c. 39.

plaintiff'; G. E. Thomas, for defendants. s. 13, and the 15 & 16 Vict. c. 76. s. 16, in fact only re-enact the old law as to

cause."

}

1872.

GEIPEL AND OTHERS V. fire, and all and every other dangers and Jan. 26.

SMITH AND ANOTHER. accidents of the seas, rivers and navigaShip, and Shipping-Charter-party- tion, of whatsoever nature or kind during

the voyage always excepted. AverBlockade of Port of Destination- Dissolu

ment of conditions precedent. Breach, tion of Contract—"Restraint of PrincesLiability of Shipowner.

that the defendants, before any breach by

the plaintiffs of the charter-party, and In an action for breach of a charter- although not prevented by any of the exparty, by which it was agreed that the de- cepted perils, causes, matters or things, fendants' vessel should proceed to a port of absolutely refused to observe and fulfil loading, and after loading a cargo convey it the terms of the charter-party, and to let to a foreign port, the act of God, Queen's their ship take or carry any goods of the enemies, restraints of princes and rulers, plaintiffs to the port of Hamburgh, and fire, and all and every other dangers and gave notice to the plaintiffs that they abaccidents of the seas . . during the voyage solutely refused so to do, and that they excepted, it was pleaded that before breach would not observe or fulfil, and absolutely there was a war between the country of the renounced the charter-party, and wrongport of destination and another country, so fully and in violation of the charter-party that the performance of the charter-party discharged the plaintiffs from directing became illegal, and the defendants refused the ship to sail or proceed to any spout, to perform it :-Held, that the plea was and from otherwise observing and fulfillgood, as the blockade was within the mean. ing the terms of the charter-party, and ing of the exception, restraints of princes, " thereby wrongfully broke and violated the and that the defendants were not bound to charter-party, and by reason of the prehave proceeded to the port of loading, or to mises the plaintiffs became and were un. have waited in anticipation of the removal able to have the charter-party observed of the blockade, in the absence of anything and fulfilled by the defendants, and use- . to lead to the inference that it would be re- lessly incurred great expense in and about moved within a reasonable time.

procuring cargo for the ship, and were

prevented from sending the goods to Ham. Declaration—that by a certain charter. burgh, &c. party between the plaintiffs and the de- Fifth plea—That after the making of fendants, it was agreed that the defen. the charter-party, and before any breach dants' vessel, The Martindale

, being tight, thereof, a war was being carried on bestaunch, and strong, and every way fitted tween the peoples of Germany, wherein for the voyage, should with all convenient the port of Hamburgh was situated, and speed sail and proceed to a spout as di- the peoples of France, and the port of rected by the plaintiffs or their agent, and Hamburgh was then blockaded by the there take on board a full and complete fleets of France, and Her Most Gracious cargo of coals, not exceeding what she Majesty the Queen by her royal proclacould reasonably stow and carry over and mation enjoined all her subjects to mainabove her tackle, apparel, provisions and tain a strict neutrality between the bellifurniture; and, being so loaded, the cap- gerent peoples, and not to commit any act tain should immediately call at the office contrary to or in violation of the law of of the plaintiffs or their agents, and clear nations, and the defendants say that they with them at the custom-house, also sign were and are British subjects, and that the bills of lading without qualification as ship was a British ship, and the cargo was they present them, but without prejudice a cargo to be carried to and delivered at to the charter-party, and then, as soon as the port of Hamburgh, wherefore the wind and weather should permit, should further performance of the charter-party proceed to Hamburgh, and there deliver became and was illegal, and the dethe same to the freighters or assigns, they fendants, as they lawfully might, refused paying the freight for the same at a cer- further to carry out the same. tain agreed rate, the act of God, Queen's Demurrer and joinder in demurrer. enemies, restraints of princes and rulers, Sixth plea—That after the charter. NEW SERIES, 11.- Q.B.

X

case.

party was entered into, and before any dants from proceeding to the port of load. breach thereof by the defendants, a state ing and shipping the cargo. The blockade of war arose and existed, as in the last might only have been a temporary one, plea mentioned, and the port of Hamburgh and it is important that the shipowners became and was blockaded by the French, should do everything in their power to and Her Majesty the Queen published a perform the contract as soon as the obproclamation as aforesaid, and thereupon stacle to its performance is removed. the defendants having notice of the With regard to the seventh plea, the blockade and of the proclamation, refused clause in the charter-party as to restraints to allow the ship to receive a cargo for the of princes does not aid the defendants' purpose of then carrying the same to the There was no actual restraint, but blockaded port whilst the same was so only an apprehension of restraint. blockaded, and of running the blockade Hadley v. Clarke (2) it was held that an with the

cargo,

for the purpose of deliver- embargo by order in Council only susing the same at the port during the pended but did not dissolve the shipcontinuance of the blockade, which is the owner's contract. The blockade may at breach complained of and not otherwise. any moment be removed.

Demurrer and joinder in demurrer. [BLACKBURN, J.—But it may also con

Seventh plea—The defendants say that tinue for an indefinite time; the case must after the charter-party was made, and be looked upon as if the duration of the before

any breach by them of the charter- blockade were quite uncertain.] party, a state of war existed, and the Conceding that a blockade comes withport of Hamburgh was blockaded, and in the words “ restraints of princes,” so Her Majesty the Queen published her pro- far as the delivery of the cargo is conclamation as in the fifth plea stated, and cerned, the shipowner must carry out his that the defendants were ready and willing contract so far as he can. The defend. to perform the charter-party on their part ants do not appear to have waited for a so far as they lawfully might, and so far reasonable time to see whether the blockas they were not hindered and prevented ade would be raised, so that there has been by any of the excepted causes, and that a breach of their contract, though the the ship could not have received a cargo, damages may be only nomival. In Atkin. nor could the charter-party have been son v. Ritchie (3) it was held that the shipcarried out and fulfilled within a reason- master, who refused to proceed with able time except by the ship receiving a loading his cargo at a Russian port, becargo for the purpose of carrying the same cause of a threatened embargo, was not to the blockaded port, and of running the protected by the exception " restraints of blockadle with the cargo, and of delivering princes.” In Spence v. Chadwick (4) an the same at the port whilst so blockaded, action for breach of a contract to carry wherefore the defendants refused to carry goods safely from Gibraltar to London, out the charter-party.

“the act of God, the Queen's enemies, fire, Demurrer and joinder in demurrer. and dangers of the seas, rivers, and navi.

Cohen, in support of the demurrers.- gation (save risk of boats) excepted," it The pleas are no answer to the action. was held to be no answer that the goods With regard to the fifth and sixth pleas, in the course of the voyage were without the defendants must show that the perfor- the fault of the defendant confiscated by mance of their contract has been rendered the Spanish authorities, as the case was illegal by the law of this country, and not brought within any of the exceptions this they have failed to do. In The in the contract. IIelen (1), Dr. Lushington explains clearly [BLACKBURN, J.—In that case there was that a contract in a neutral country for no exception of restraints of princes. ] the purpose of breaking the blockade of a An embargo would only suspend the foreign port is not illegal. At any rate,

(2) 8 Term Rep. 259. there was nothing to excuse the defen

(3) 10 East, 530.

(4) 10 Q.B. Rep. 517; s. c. 16 Law J. Rop. (1) 35 Law J. Rep. (N.s.) Adm. 2.

(n.s.) Q.B. 313.

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