operations specified by the statute. Hence it follows, that compensation cannot be obtained before the statutory tribunals for damage caused by railway companies in the completion of their lines, when such damage has not been caused by acts done in virtue of and in conformity with their statutory powers. Such proceedings, if illegal, must be remedied by having recourse to the ordinary courts (a); and if not illegal, as sometimes happens, found no claim for compensation in any court (b). tribunals When the Legislature gives a new special jurisdiction to an Existing existing tribunal, this does not in anywise affect its common law receiving jurisdiction, which remains intact in all matters not specially regu- jurisdiction. lated by the statute (c). statutory jurisdiction courts may be Even where special tribunals have been created with exclusive Exclusive jurisdiction for dealing with claims arising in consequence of the of statutory exercise of special statutory powers, the parties may, by converting the statutory claims into matter of agreement, bring themselves under the jurisdiction of the ordinary courts (d). All new statutory jurisdictions are presumed to be subordinate, and therefore subject to the review of the Supreme Courts, unless the contrary is so expressed by the Legislature as to exclude all doubt (e). The mere use of words expressing finality will not exclude review, but will be held to mean that the statutory tribunal has power to exhaust the cause in the first instance; and the specific exclusion of one mode of review will not be held to imply the exclusion of others (f). If, however, the statutory words admit of no other interpretation, all review will be excluded (g). got over. Review of Court, when excluded. competent But however express may be the statutory provisions excluding Review always review, they will not be interpreted to exclude the intervention of when there is the Supreme Court when the statutory tribunal has exceeded its jurisdiction. (a) Goldie v. Oswald, 1814,2 Dow 534; Shand v. Henderson, 1814, 2 Dow 519; Burnet v. Knowles, 1815, 3 Dow 280. (b) See cases in note (b), p. 501. (c) Edin. and Glasgow Ra. Co. v. Cadder Road Trs., 1842, 5 D. 218. (d) Hutchison v. Edin, and Glasgow Ra. Co., 1848, 10 D. 760. (e) Ersk. i. 2, 7. (f) Guthrie v. Cowan, 1807, 14 F. C. 43, M. App. Juris. 17; Anderson v. Campbell, 1811, 16 F. C. 207; Key (g) Chivas v. Duke of Gordon, 1804, excess of Court of Session may interpret the statute prima instantia. powers, or plainly travelled out of its jurisdiction (a). Where the question of competency and the merits are mixed up together, the Court will interfere (b); and where the proceedings of the statutory tribunal have been so irregular as to amount to a violation of the provisions of the Act, the Court may order them to be begun and proceeded with de novo (c). When a question is raised as to what claims are authorized to be made for compensation under an Act, it may be determined prima instantia by the Court of Session (d). Rules regarding. DECLINATURE OF JUDGE. When a judge is interested as a partner or shareholder in a mercantile partnership or company, it is a good ground of declinature (e); but where the grounds of declinature apply to so many judges, that, were they to be sustained, the cause could not be decided, the declinator will be repelled ex necessitate (ƒ). It has, moreover, long been fixed, that a judge may deliberate and vote in a cause affecting a corporation in which he holds stock (g). By Act of Sederunt 1st Feb. 1820, it was declared that the fact of a judge holding shares or stock in a chartered bank is no ground of disqualification; and the principle of this Act has been held to apply where a near relation of a judge holds shares in other chartered companies (h). (a) Fraser v. Burnet, 1806, Hume 256; Grant v. Gordon, 1833, 12 S. 167; Brown v. Heritors of Kilberry, 1825, 3 S. 334, 1826, 4 S. 176, aff. 1829, 3 W. S. 441; Tennant v. Turner, 1837, 16 S. 192; Graham v. Caled. Ra. Co., 1848, 10 D. 495; Edin. and Glas. Ra. Co. v. Cadder Road Trs., 1842, 5 D. 218. See Scott v. Anderson, 1832, 10 S. 760; Brown v. Richmond and Co., 1833, 11 S. 407; Guthrie v. Millar, 1827, 5 S. 663. (b) Edin. and Glas. Ra. Co. v. Earl of Hopetoun, 1840, 2 D. 1255. (c) Young v. Milne, 1814, 17 F. C. 664; Fraserv. Burnet, 1806, Hume 256. (d) Macdonell v. Caled. Canal Comrs., 1830, 8 S. 881. (e) Shand's Prac. i. 60; Douglas, Heron, and Co. v. Earl of Galloway, 1774, 5 Brown's Sup. 424; Maclean v. Muness, 1776, 5 Brown's Sup. 455; Aberdeen Town and County Bank v. Scot. Equit. Insur. Co., 1859, 22 D. 162. (f) Shand's Prac. i. 61; Friendly Insur. Co. v. Royal Bank, 1749, Elch. Jurisd. No. 50; Blair v. Sampson, 1814, 18 F. C. 501; A. S. 22 July 1774, and 22 Jan. 1789; Hercules Insur. Co. v. Hunter, 1837, 15 S. 800. (g) Bank of Scotland v. Ramsay, 1738, 5 Brown's Sup. 206; Anderson v. Bank of Scotland, 1840, 15 F. C. 547. (h) Speirs v. Ardrossan Canal Co., 1823, 2 S. 221; Friendly Insur. Co. v. Royal Bank, supra. of Lords. It is a rule of the House of Lords, that a peer will not take Rule in House part in hearing an appeal in which a company of which he is a shareholder is a party; and it has been doubted whether this rule could be altered otherwise than by statute (a). (a) London and North-West. Ra. Co. v. Lindsay, 1858, 3 Macq. 114. CHAPTER VI. CITATION OR SERVING OF PROCESS. I. FIRMS AND COMMON LAW COMPANIES. General rules. As has already been seen, there are three ways in which associations of this kind may be called as defenders, viz.: 1. By making all the partners defenders; 2. By calling the company in its descriptive name, with joinder of at least three partners; and 3. By the social name in which the firm signs obligations. Whichever of these forms has been adopted, service must be made on the quasi person of the company. This is done by leaving a copy with one of the partners, or other known official of the company, at the company's place of business. The place of business is in law the home of the company; and as an individual may have more than one residence, a company may have more than one domicile. This happens as often as a company has two or more offices in which it receives orders and transacts business with its customers. When this is the case, service may be made on the quasi person of the company at any of the offices lying within the jurisdiction of the Court (a). With whom the writ As to the person with whom the writ ought to be left, the anashould be left. logy of service on an individual affords a guide. When they can be found present, a partner, or managing official, such as a secretary, is the proper person; but where these cannot be got after due inquiry, it should seem that service on an inferior assistant will suffice (b). (a) Wordie, 1831, 10 S. 142; Bishop v. Mersey and Clyde Nav. Co.,1830,8 S. 558; Aberdeen Ra. Co., 1854, 16 D. 422. (b) Young v. Livingstone, 1860, 22 D. 983. When the company, being a nominal firm, has been called as such, i.e. in the social name, service would seem to be complete when made as above described at the place of business (a). But where the company has been called either in the names of all its partners, or by its descriptive name with joinder of three partners, service, it appears, must be made not only on the quasi person of the company as above described, but also on each of the partners whose names appear in the writ (b). The reason of this requirement is obvious enough, when it is found necessary to call all the known members of the association; for, the same reason which rendered it necessary to call them individually, requires special service for each. It is not so easy to find a reason for this rigour, when it is sufficient to call only three of the individual partners nominatim; for in such a case the only reason for calling the three partners at all is the accident of the company trading under a descriptive instead of a social name. Nevertheless the practice has so run, and has now become too inveterate to be disturbed. is necessary on individual partners. When service has to be made on the individual partners, as in When service the cases mentioned, it must be done in the same way as if they were defending individually; that is to say, either by delivery of the writ to them personally, or in some of the modes which the law holds to be equivalents for personal service. Hence, leaving copies of the writ at the company's place of business, to be delivered to each of the partners, will not be sufficient. This rule must also be adhered to when the company is called in the social name, and one or more of the partners are also called as individuals. Where single trades as a individual If a single individual has contracted an obligation as though he were a firm or company, and he is sued thereon as such, he cannot object to the validity of a citation which would have been effectual company. if he had been a company according to his misrepresentation (c). socios. It may here be observed, that where a company sues one of its Actions inter own members or partners, he must be called as a defender, and service of the writ must be made on him in the same way as if he were a stranger. The company place of business is not to be taken as the residence of the individual partners. (a) Forsyth v. Hare, 1834, 13 S. 50. (b) Cases last quoted. (c) Young v. Livingstone, 1860, 22 D. 983. |