Lines of copy of this document free of charge to the sheriff-clerks of the Every railway company is required to permit the Board of Trade to lay down on their lands a line of electric telegraph for her Majesty's service, subject to such remuneration as may be agreed on or settled by arbitration. The telegraph may also be used by the company. If a telegraph has been established along the line by the company, or by other persons for their own use, it is burdened with a prior right for the service of her Majesty, and must be open for the service of all persons alike, subject to reasonable regulations and charges (c). (a) 8 and 9 Vict. c. 33, s. 100. fere with the solum of a railway, or to go under or over it, see South-East. Ra. Co. v. European and American Elec. Teleg. Co., 9 Ex. 363; AttorneyGen. v. United Kingdom Elec. Teleg. Co., 30 Beav. 287. BOOK IV. JUDICIAL PROCEEDINGS. CHAPTER I. PRELIMINARY. of Book IV. It is proposed in this Book to pass in review the legal remedies Subject-matter available to associations formed for the purposes of gain, their members, and the public, in their mutual relations; to examine the powers of partners, managers, directors, etc., to represent and bind their firms or companies in such proceedings as partake of a judicial or quasi judicial character; and to consider the rules of evidence in so far as applicable to such associations. between Scotch and Here, as in other branches of our subject, it will be found that Differences the English courts have decided many questions which have not yet been raised in this country; and it comes to be a matter of important consideration for the Scottish lawyer, how far he is safe in taking such decisions as precedents. As a general rule, it may be laid down, that when an English decision proceeds on equitable grounds, and does not contravene any characteristic technicality of Scottish law, it may form a valuable precedent; but that when it is based on a mere English technicality, and can be traced to no equitable principle, it will be more likely to mislead than assist. In order to apply this rule, it is obviously necessary that the principles which appear to regulate this branch of partnership law in the two legal systems should be ascertained as clearly as possible, so that the equitable may be separated from the technical, and the Purposes contemplated in both systems Inadequacy of the English system for unincorporated associations. In corporations, rules of both systems very similar. English rules as to unincor end in view from the mode of procedure. For this purpose the following observations may be found useful. It is very obvious, that the ultimate success of all associations formed for the purposes of gain must ultimately come to depend in a great measure on the facilities which the law affords for having the rights and obligations of the association, in relation to its members and strangers, determined and enforced by the public tribunals; and that any unnecessary obstructions to the freedom of judicial action must tend greatly to embarrass, if not entirely to defeat, the successful development of such resources as the society may possess. But, on the other hand, it must be observed, that unless some effectual means were taken to ascertain the will of the association, as contradistinguished from that of some of its members, when its name is used in judicial proceedings, the interest of the association itself, of its members, and of the public, might often be seriously compromised. By the act of a minority, or even of a single member, the company might be involved in a litigation from which nothing but loss could result; and claims unquestionably well founded might be abandoned or compromised from private and corrupt motives. Both of these considerations appear to have been in contemplation of law, when the English and Scottish systems of judicial procedure assumed their existing forms; but it cannot be concealed, that while the English system has proved, in cases of unincorporated associations, so utterly inadequate to meet the requirements of commerce, that the interference of the Legislature by the Registration Acts became indispensable; the principles adopted in Scotland were in themselves so correct in theory, and so easily made available in practice, that, in so far as concerned judicial procedure, these pieces of legislation were apparently uncalled for. In so far as regards corporations, the rules in both systems are very similar, if not identical; and as they will be afterwards fully considered, any notice of them at present is unnecessary. The great points of difference between the two systems are to be found in the case of unincorporated associations, and to them therefore we shall now briefly refer. In England, since the law does not recognise a quasi person in an unincorporated society, the company rights and claims are con panies. sidered to be the joint rights and claims of the individual partners, porated comand its debts and obligations to be their joint and several debts and obligations. In suing or defending, therefore, the names of all the partners must appear as plaintiffs or defendants. It is held, however, that every partner is entitled to use the names of all his copartners for this purpose, and, in cases of urgency at least, without obtaining their consent. But, on the other hand, any one or more of their number may refuse or withdraw his name; and this will in most cases be fatal to the action or defence. The general effect of this rule is to ensure that judicial action shall not be taken in the company name, unless such a step be truly in accordance with the intentions and will of all its members; but, on the other hand, its just claims are liable to be defeated through the obstinacy of a single partner, a result which a court of equity will not always agree to remedy. The bad consequences of this rule are still more strikingly illustrated when claims arise between the company and its own members. In such circumstances, as all the partners cannot be made plaintiffs or defendants, the common law affords no remedy, and a court of equity will in general only interfere on condition of dissolution (a). releases. A release being a deed under seal, one partner cannot bind the Rules as to others by executing such a deed without express authority also under seal. But the salutary check afforded by this technical principle is often neutralized by the operation of another. For though a release does not bind the other partners, it binds the partner who grants it; and as an action for a company claim can only be raised and prosecuted in name of all the partners, the action will fall by plea in abatement, whenever a release even by one partner has been granted, either before it is raised or while it is yet in dependence (b). The mischievous consequences of this technical rule were probably not foreseen when it was first applied in questions of partnership; but it has now become so fixed, that one great purpose in passing the Registration Acts was to neutralize its effects. The English courts have not, however, extended the operation Reference and compromise. of the principle here mentioned to cases which appear to be strictly analogous. Thus, it is held that one partner cannot bind the (a) Lindley 384 and 408. (b) Lindley 226, 234. Sometimes the Court will avoid the release on Effect of release where company is defendant. Scottish law. Right to sue and defend by non-con currence or others by consenting to refer a claim to arbitration, or by consenting to judgment or giving a cognovit, either in his own name or in that of all the copartners; the reason alleged being, that such acts transcend the limits of implied agency,-a principle based in the highest equity. But it is difficult to see why a distinction should be made between the power of granting a release, and that of referring to arbitration, or giving a cognovit. All three appear to be equally acts transcending implied agency; and if the act of a partner can incapacitate the company from judicial action in the one case, it may well be asked why it should not equally incapacitate them in the others. Lastly, we find the technical principle which requires the joinder of all the partners of a firm in judicial proceedings, reappearing when the company is defendant, but on this occasion in its favour. It is settled law in England, that a release granted by a creditor to one partner of a firm for a company debt, is a release to all; and this is based on the consideration, that as a company can only be sued by making all the partners defendants, so when one has been released the action must fall, as he cannot be made a defendant. By the law of Scotland, on the other hand, unincorporated associations for purposes of gain are conceived of as possessing a quasi person distinct from the members of which they are composed; and, as we shall afterwards see, methods are provided by which, in the general case, the company may sue and be sued, without all the members being made pursuers or defenders. If, however, there is reason to believe that a minority are suing or defending in the company name against the will of the majority, the Court will, on the application of the opposite party, sist procedure until the matter be cleared up, when, if it appear that the proceedings are not sanctioned by the will of the company, the action will be dismissed, or the defence repelled, as the case may be, with costs against those who, without authority, made use of the company name. As the company is capable of sustaining the characters of does not abate creditor or debtor, both to the world and to its own partners, in virtue of its quasi personality, its right to sue and defend is not affected by the fact that one of the latter refuses or withdraws his concurrence; and a discharge of a company claim by one partner will only at best have the effect of limiting the debtor's obligation discharge of a partner. |