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). libel. 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). against latent As a general rule, decree obtained against a company is res Res judicata 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). (a) Somerville v. Rowbotham, 1862, 24 D. 1187. (b) Thomson v. Gilkison, 1830, 9 S. 27; Johnston v. Duncan, 1824, 2 S. 532, but see 9 S. 520; Inglis v. Lane, 1831, 9 S. 599. (c) Craig v. Fleming, 1838, 16 S. 488. (d) M'Leod v. Langmuir, 1824, 3 S. 270. (e) Edin. and Leith Ship. Co. v. Gillon, 1832, 10 S. 404. Common law. Act 1863. Act 1862. Act 1845. CHAPTER IV. 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, 64; Bankt. i. 2, 27; Fisher v. Hepburn and Syme, 1827, 6 S. 216, as 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). 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). Acts. 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. CHAPTER V. JURISDICTION. In all questions affecting private partnerships, companies, or corpo- General rules. rations, the general rule is, that the ordinary tribunals have jurisdiction in the same way as in the case of individuals. To this rule, however, some exceptions have been introduced by the force of statute; and even when the ordinary principles of law apply, their operation sometimes presents peculiarities consequent on the person or quasi person of the association being not an individual, but an aggregation of individuals. Companies, like individuals, are subject to the jurisdiction of the Domicile. Supreme Court of Scotland, in whatever part of the country their places of business may be situated; but they are also subject to the ordinary provincial or local tribunals having jurisdiction in the particular localities where their principal place of business is situated; and it would seem that if they have several places of business situated in different localities, they are, like individuals having more domiciles than one, liable to the respective jurisdictions of all (a). It has been expressly decided, that the domicile of a railway company is not confined to the locus of the principal office, but exists wherever the company have stations for traffic (b). When an unregistered company is registered under the Act of Act 1862. 1862 for the purpose of being wound up, in order to determine what court has jurisdiction for this purpose, regard must be had to the part of the United Kingdom in which its principal place of business is situated. If it has a principal place of business in more (a) Spottiswood v. Morrison, 1701, M. 4790; Young v. Livingston, 1860, 22 D. 983. (b) Aberdeen Ra. Co. v. Ferrier, 1854, 16 D. 422; Stewart v. Scottish Midland Ra. Co., 1852, 14 D. 594. |