Page images
PDF
EPUB

registering the mortgage [or charge] referred to in the said affidavit be extended until the day of 19, inclusive [or that, &c., stating the omission to be supplied, or the misstatement to be corrected], but that this order be without prejudice to the rights of parties acquired prior to the time when such mortgage [or charge] shall be actually registered [or the said omission (or misstatement) shall be actually rectified].

Dated the day of 19-.

13. Application to rectify Register of Members (f).

[Title as in form No. 11, supra.]

[Formal parts as usual in application to Judge in Chambers] for an order that the register of members of the above-named company be rectified by such company by entering therein [or omitting therefrom] [stating concisely the precise entry or omission desired] [and that the said company pay to the said his costs of and occasioned by this application].

Dated [&c., conclude as usual in the case of an originating summons] .

SECTION VI.-FRIENDLY AND OTHER SOCIETIES AND TRADES UNIONS. 1. Writ of Summons in Action by or against Friendly Society (g). [The writ will be the same as usual, the officer or officers of the society or branch, authorized by the rules thereof to bring or defend the action, being described in the title of the action, and also in the body of the writ, thus :] A. B. [and C. D.] as trustee [or trustees, or (stating the title or titles of the officer or officers)] of [the branch of] the- [Friendly] Society. [The claim should be indorsed upon the writ thus:] the plaintiffs' [or plaintiff's] claim is as [or is against the defendants (or defendant) as] the trustees [or trustee, or (insert title of officers or officer)] of the [ branch of] the [Friendly] Society for [stating the claim as usual].

(f) See the Companies Act, 1862, s. 35. The application may be made to the Judge in Chambers by summons supported by an affidavit of facts. The Judge may at the hearing direct the trial of an issue. If an order for rectification be made, it should generally direct "that due notice of such rectification be given to the registrar of joint stock companies" (see the same Act, s. 36).

(g) All registered friendly societies are now regulated by the Friendly Societies Act, 1896 (59 & 60 Vict. c. 25).

That Act provides by s. 94 (1), "The trustees of a registered society or branch, or any other officer authorized by the rules thereof, may bring or defend, or cause to be brought or defended, any action or other legal proceeding in any Court whatsoever, touching or concerning any property, right, or claim of the society or branch, and may sue and be sued in their proper names, without other description than the title of their office.

"(2) In legal proceedings brought under this Act by a member, or person claiming through a member, a registered society or branch may also be sued in the name, as defendant, of any officer or person who receives contributions or issues policies on

2. Statement of Claim (h).

[The title must agree with that on the writ. The pleading should begin with a statement to this effect:] The plaintiffs [or defendants] are the trustees of the Society, which is a society registered under the Friendly Societies Act, 1896, and by the rules of the said society and the provisions of the said Act the plaintiffs [or defendants], as such trustees as aforesaid, are authorized to sue [or liable to be sued] in respect of the matters hereinafter complained of.

[Conclude thus:] The plaintiffs, as such trustees as aforesaid, claim [or, the plaintiff's claim against the defendants as such trustees as aforesaid] [state the claims as usual].

3. Proceedings by and against Building Societies (i).

The same as usual, describing the society by its corporate name. In the case of societies not registered under the Act of 1874, the society must sue and be sued in the name of the trustees for the time being, describing them as such (6 & 7 Will. 4, c. 32, s. 4, incorporating 10 Geo. 4, c. 56, s. 21).

behalf of the society or branch within the jurisdiction of the Court in which the legal proceeding is brought, with the addition of the words 'on behalf of the society or branch' (naming the name).

“(3) A legal proceeding shall not abate or be discontinued by the death, resignation, or removal from office of any officer, or by any act of such officer after the commencement of the proceedings.

"(4) The summons, writ, process or other proceeding, to be issued to or against the officer or other person sued on behalf of a registered society or branch, shall be sufficiently served by personally serving that officer or other person, or by leaving a true copy thereof at the registered office of the society or branch, or at any place of business of the society or branch within the jurisdiction of the Court in which the proceeding is brought, or, if that office or place of business is closed, by pasting a copy on the outer door of that office or place of business.

"(5) In all cases where the said summons, writ, process, or other proceeding is not served by means of such personal service or by leaving a true copy thereof at the registered office of the society or branch, as aforesaid, a copy thereof shall be sent in a registered letter addressed to the committee at the registered office of the society or branch, and posted at least six days before any further step is taken on the proceeding." (h) By s. 51 of the same Act, "In all legal proceedings whatsoever concerning any property vested in the trustees of a registered society or branch, the property may be stated to be the property of the trustees in their proper names as trustees for the society or branch without further description."

(i) By the Building Societies Act, 1874 (37 & 38 Vict. c. 42, amended 38 Vict. c. 9), s. 9, every building society upon receiving a certificate of incorporation under that Act becomes a body corporate by its registered name. By sect. 31 the rules of the society are made binding on the members and officers. Sect. 16 requires that the rules shall state inter alia (9) how disputes between the society and its members are to be determined, and sects. 34 and 35 provide for the enforcement of arbitration if selected by the rules as the mode of settling disputes. An action commenced contrary to an arbitration rule may be stayed.

4. Proceedings by and against Industrial and Provident Societies (k). The same as usual, describing the society by its registered name.

5. Proceedings by and against Trades Unions.

A trade union registered under the Trade Union Acts, 1871 and 1876, may be sued in its registered name (Taff Vale R. Co. v. Amalgamated Soc. of Railway Servants, [1901] A. C. 426).

66

Where the action is brought by or against the trustees or an officer of the union (1), they or he must be described in the title of the action and in the body of the writ by their or his proper names, with the addition of their or his title. The claim indorsed on the writ must be stated to be made by or against the same as trustees [or as -] of the." The trustees may be described in the statement of claim as being "the trustees of the Trade Union, which is duly registered under the provisions of the Trades Union Act, 1871." The officer may be described thus: "The plaintiff [or defendant] is the [title of office] of the Trade Union, which is duly registered [&c., as in case of trustees], and he is authorized by the rules of the said Trade Union to sue [or be sued] in this action on behalf thereof."

(k) By the Industrial and Provident Societies Act, 1893 (56 & 57 Vict. c. 39), s. 21, every registered society is a body corporate, capable of suing and being sued in its registered name. Legal proceedings will not be affected by any change of name (sect. 52).

(2) The Trade Union Act, 1871 (34 & 35 Vict. c. 31, amended 39 & 40 Vict. c. 22), empowers the trustees of any trade union, registered under that Act, or any other officer of such union, who may be authorized so to do by the rules thereof, to bring or defend, or cause to be brought or defended, any action or suit touching or concerning the property, right or claim to the property of the union; and in all cases concerning the real or personal property of the union to sue and be sued, plead or be impleaded, in any Court of law or equity in their proper names, without other description than the title of their office (sect. 9). No action will abate by reason of the death, resignation, or removal of such trustees or officer, but it may be continued by their or his successor, as if it had been commenced by them or him (Id.). The summons may be served by leaving it at the registered office of the union (Id.). A change in the name of the union will not affect legal proceedings (39 & 40 Vict. c. 22, s. 11).

CHAPTER VII.

ACTIONS BY AND AGAINST FIRMS AND PERSONS TRADING IN NAMES

[merged small][merged small][ocr errors]

II. Actions between a Firm and one of its Members, &c.
III. Actions against Persons trading in Names not their own

SECTION I.-ACTIONS BY AND AGAINST FIRMS (@).
1. Writ of summons (a).

PAGE

[ocr errors]

. 539 548

548

Same as usual, describing the plaintiff or defendant partners by the name of their firm; e.g., as A. B. and Co.," or 66 C. D. and Son."

66

The action will be, not against the firm, but against the individual partners, if the defendants be described as "A. B. and C. D., trading as A. C. & Co."

2. Service of Writ of Summons (b).

Where a firm carrying on business within the jurisdiction is sued, serve the writ either (1) upon one or more of the partners, or (2) at the principal place, within the jurisdiction, of the business of the partnership, upon the person having at the time of service the control or management of the

(a) Use of Name of Firm.]-By R. S. C., Ord. XLVIIIA., r. 1, "Any two or more persons claiming or being liable as co-partners and carrying on business within the jurisdiction may sue or be sued in the name of the respective firms, if any, of which such persons were co-partners at the time of the accruing of the cause of action; and any party to an action may in such case apply by summons to a Judge for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, co-partners in any such firm, to be furnished in such manner, and verified on oath or otherwise, as the Judge may direct."

(b) Service of Writ.]-By Ord. XLVIIIA., r. 3, "Where persons are sued as partners in the name of their firm under Rule (1), the writ shall be served either upon any one or more of the partners or at the principal place, within the jurisdiction, of the business of the partnership upon any person having at the time of service the control or management of the partnership business there; and, subject to these Rules, such service shall be deemed good service upon the firm so sued, whether any of the members thereof are out of the jurisdiction or not, and no leave to issue a writ against them shall be necessary: provided that in the case of a co-partnership which has been dissolved to the knowledge of the plaintiff before the commencement of the action, the writ of summons shall be served upon every person within the jurisdiction sought to be made liable."

partnership business there. If such manager be served, serve upon him, together with writ, the requisite notice (form No. 3, infra).

If it is known that the partnership was dissolved before the commencement of the action, serve the writ upon every person within the jurisdiction sought to be made liable.

3. Notice to Manager of Business when served with Writ (c).

[Title, &c., of action as usual.]

Take notice that the writ served herewith is served on you as the person having the control or management of the partnership business of the above-named defendant firm of [If the manager be also a partner,

add and also as a partner in the said firm.]

(Signed) Plaintiff's solicitor.

I, P. S., of

4. Affidavit of Service on Manager of Business.

[ocr errors]

[Title, &c., as in writ of summons.]

[name, address and addition of deponent], make

[ocr errors]

19—, at being the principal

oath and say as follows:1. I did on the day of place, within the jurisdiction of this Honourable Court, of the business of the above-named defendant partnership, serve, the person having at the time of such service the control or management of the said partnership business there, personally with a true copy of the writ of summons in this action, which appeared to me to have been regularly issued out of the Central Office of the Supreme Court against the above-named defendant partnership, at the suit of the above-named plaintiff, and which was dated the day of 19-.

2. At the time of the said service the said writ and the copy thereof were subscribed and indorsed in the manner and form prescribed by the Rules of the Supreme Court.

3. I did on the day of

19-, indorse on the said writ the

day of the month and week of the said service.

4. I did at the time of the said service deliver to the person so served as aforesaid a notice in writing that the said writ of summons was served

(c) Service on Manager.]—By Ord. XLVIIIA., r. 4, " Where a writ is issued against a firm, and is served as directed by Rule (3), every person upon whom it is served shall be informed by notice in writing given at the time of such service whether he is served as a partner or as a person having the control or management of the partnership business, or in both characters. In default of such notice, the person served shall be deemed to be served as a partner."

By r. 6," Where a writ is served under Rule (3) upon a person having the control or management of the partnership business, no appearance by him shall be necessary unless he is a member of the firm sued."

« EelmineJätka »