[IN THE COURT OF APPEAL.]

HAGGIN v. COMPTOIR D'ESCOMPTE DE PARIS. MASON AND BARRY v. THE SAME.

Practice - Service of Writ - Foreign Corporation carrying on Business in England - Order IX., r. 8.

A foreign corporation carrying on business in this country is liable to be sued in an English court, and may be served in the same manner as an English corporation aggregate. Therefore service of a writ of summons on the head officer at the place of business in England of such a foreign corporation is good service on the corporation under Order IX., r. 8.

Newby v. Van Oppen (Law Rep. 7 Q. B. 293) followed.

APPEAL against an order of the Divisional Court (Field and Cave, JJ.) refusing to set aside the service of the writs in the above actions.

The defendants were a French corporation incorporated by French statutes and carrying on business in France, but having a branch office in London. The corporation carried on banking, discount, and other financial operations in France and other countries. The manager of the branch bank in London held a power of attorney from the corporation which authorized him to manage and direct the agency of the corporation in London, to discount and purchase drafts upon Europe and other specified places, and to transact other business connected with banking and discount operations, and to do various other acts; but it did not authorize him to transact all the operations undertaken by the corporation, and in particular it did not authorize him to give guarantees.

The above actions were brought against the corporation on two guarantees given by the corporation in Paris to the respective plaintiffs on behalf of the SociŽtŽ Industriale des MŽtaux, which was also a French company.

The writs were served on the manager of the defendants' branch office in London. The defendants took out a summons in each action to set aside the service as irregular, and the judge in Chambers, and Field and Cave, JJ., sitting as a Divisional Court, held the service in each case to be regular.

(1.) In Haggin v. Comptoir d'Escompte

Bigham, Q.C., and Tindal Atkinson, for the defendants. The question turns upon the construction of Order IX., r. 8, of the Rules of the Supreme Court, 1883(1), which is founded on s. 16 of the Common Law Procedure Act, 1852. The defendants contend in the first place that foreign corporations cannot be sued at all in the English courts unless they voluntarily submit to their jurisdiction. Such corporations are domiciled abroad, and all English statutes and rules of procedure must be read as having no reference to them. But in the second place, supposing that foreign corporations can be sued, they cannot be served under this rule. A "corporation aggregate" is a term of English law and does not apply to a foreign corporation. The defendants have no residence in England. If they can be served with a writ at all, it must be done under another rule, namely, Order XI., for serving defendants out of the jurisdiction. Their branch office is a mere agency office, and the clerk there is not the head officer nor the clerk of the corporation within the meaning of the rule, but merely a servant, who has only limited powers of doing the business of the corporation: Ingate v. Austrian Lloyds (2); Nutter v. Messageries Maritimes (3); Mackereth v. Glasgow and South Western Banking Co. (4); Westman v. Aktiebolaget (5); Jones v. Scottish Accident Insurance Co. (6); Lhoneux v. Hong Kong Corporation. (7)

Newby v. Van Oppen (8) is distinguishable because the officer who was served in that case had all the powers of the corporation, and was not merely an agent for a particular branch of business, as in the present case. That case was not a decision of the Court of Appeal, and is not binding on this Court.

Cohen, Q.C., and J. Walton, for the plaintiff, were not heard.

The appeal in Mason and Barry v. Comptoir d'Escompte de Paris

(1) Order IX., r. 8: "In the absence of any statutory provision regulating service of process every writ of summons issued against a corporation aggregate may be served on the mayor or other head officer, or on the town clerk, clerk, treasurer, or secretary of such corporation."

(2) 4 C. B. (N.S.) 704.

(3) 54 L. J. (Q.B.) 527.

(4) Law Rep. 8 Ex. 149.

(5) 1 Ex. D. 240.

(6) 17 Q.B.D. 421.

(7) 33 Ch. D. 446.

(8) Law Rep. 7 Q. B. 293.

was not argued, as the counsel for the defendants admitted that it must be governed by the decision in the first appeal.

Bigham, Q.C., and Tindal Atkinson, appeared for the defendants.

Finlay, Q.C., and F. W. Hollams, for the plaintiffs.

COTTON, L.J. This is an appeal against the refusal by a Divisional Court to set aside a writ which has been served on an officer in London of the defendant corporation. The defendant corporation is established by French law, having its chief place of business for carrying on its banking and other operations in Paris. It has established in London an office on the door of which the name of the company appears, and on their bills and memorandums used in London the same name is printed. In the two actions which have been brought, money claims are made against the corporation, and writs have been issued for service within the jurisdiction, and have been served on the defendants' officer in London, and it is now sought to set aside that service. The persons who represent the corporation in London certainly carry on the principal part of the business, namely, banking, and they carry it on in this country. The question whether the writs have been rightly served depends on the 8th rule of Order IX., which follows the terms of sect. 16 of the Common Law Procedure Act, 1852, with the exception that this rule is prefaced by the words "in the absence of any statutory provision regulating service of process."

The first objection made is that this rule does not apply to foreign corporations at all. The doubt arises from the ambiguity of the expression "foreign corporation." If it means a corporation established abroad by foreign law, I do not agree with the objection; if it means a corporation which is not carrying on business and has no residence in England, I agree with it. Why should not the rule apply to a corporation established by foreign law which has a residence in England? I agree that the exception would not apply to foreign corporations, but that does not shew that the rest of the rule applies only to English corporations. It was said, and no doubt it is true, that "corporation aggregate" is a term of English law, but if we find a foreign corporation which comes within the description, I think the mere use of a

technical expression as a term of art will not prevent such a corporation from coming within the rule. I see nothing in the rule which shews that it is not applicable to foreign corporations; and in my opinion it would be wrong to say that the rule does not apply to foreign corporations, that is, corporations established by foreign law, which are carrying on business, and therefore are resident, in England, and are submitting themselves to the laws of this country. The question, therefore, comes to this. Is this corporation resident in this country? I think it is. The principal part of its business is carried on at the office in London, and I think that when a foreign corporation, established by foreign law, sets up an office in England and carries on one of the principal parts of its business here, it ought to be considered as resident in England, and be treated as if it were established by English law. In my opinion that is the law, independently of all decisions; but the case of Newby v. Van Oppen (1) is an authority for that view. That case was decided under the corresponding section of the Common Law Procedure Act, and has never been questioned. Although distinctions have been made between it and some modern cases, yet the law there laid down has never been substantially dissented from. What was said in that case by Blackburn, J., comes to this, that if a corporation established by foreign law carries on business here, it must be considered as resident in this country, and must be equally liable to service as if it was established here. This is what he says, "The clerk or officer must be in the nature of a head officer whose knowledge would be that of the corporation." If he were only a clerk and performing a merely ministerial office instead of carrying on substantial business of the corporation, service on him would not be service on the corporation within sect. 16 of the Act, nor within the 8th rule of Order IX.; but that case lays down, as I think rightly, that when the foreign corporation is substantially carrying on their business at an office in this country, it must be considered as resident here, and liable to be served with writs in the English courts. Then we have the case before Bacon, V.C., Lhoneux v. Hong Kong Corporation (2), which was decided on the same principle. Now,

(1) Law Rep. 7 Q. B. 293.

(2) 33 Ch. D. 446.

what are the cases against this principle? The case of Ingate v. Austrian Lloyds (1) has been referred to; but the corporation in that case was in no sense resident here. It had no office here, and the question did not arise under s. 16, but was whether ss. 18 and 19, which relate to service of process upon persons residing out of the jurisdiction, referred to foreign corporations. It is true that Cockburn, C.J., did say that sect. 16 did not refer to foreign corporations, but that was not the question before the Court. What he said is this: "The 16th section clearly applies only to corporate bodies in this country. All the preceding sections relate exclusively to persons resident within the jurisdiction. The 18th and 19th sections relate to British subjects and foreigners resident in foreign parts." That was a very different question from that before us, and that case is no authority adverse to Newby v. Van Oppen. (2) There was another case, Nutter v. Messageries Maritimes (3), where Lord Coleridge used some expressions which appear inconsistent with the view which we take in this case. But there the foreign corporation had offices in Paris and no office in London, but merely an agent. What Lord Coleridge said is really against the contention of the appellants. He says: "It is a condition precedent to a good service that the corporation must either have a domicil in this country or a distinct place where the business of the corporation is carried on by a person answering to this description. The service must be upon one single officer or clerk of the corporation," and he points out that in the case before him the corporation could not be said to be carrying on business or to have an office here. He also says further on, "The judgment of Lord St. Leonards, with which as regards the law the House of Lords agreed, though they differed from him as to his view of the facts, in the case of Carron Iron Co. v. Maclaren (4), was that the corporation in question could be sued on the ground that in respect of the place of business in this country they had a domicil in England." And A. L. Smith, J., says: "The case of the Carron Iron Co. v. Maclaren (4) does not affect this case, as the service there was held to be good on the ground that the defendants had

(1) 4 C. B. (N.S ) 704.

(2) Law Rep. 7 Q. B. 293.

(3) 54 L. J. (Q.B.) 527.

(4) 5 H. L. C. 416.

practically a head office in this country for carrying on business here." Then again, Mackreth v. Glasgow and South-Western Ry. Co. (1) was a different case, because there the clerk who was served was not a principal clerk but only a subordinate clerk with very limited duties. None of these cases in any way vary the construction which I have put upon the rule. The appeal therefore fails.

FRY, L.J. I am of the same opinion. It is not necessary to refer to the earlier authorities, because in Carron Iron Co. v. Maclaren (2), which was decided in 1855, Lord St. Leonards in the House of Lords laid down that a corporation might have two domicils, and be subject to two jurisdictions. It is true that the other learned Lords differed from Lord St. Leonards on the facts of the case, but they did not dissent from the principle of law which he laid down. That principle appears to me to have been followed in subsequent cases. I think the present case is really controlled by Newby v. Van Oppen (3), and that we cannot determine it in favour of the defendants without overruling that authority. Mr. Bigham has suggested various slight differences, but the cases are substantially the same, because the foreign corporation in this case as well as in that was managing a business in this country, and actually had a place of business here. Newby v. Von Oppen (3) was decided in 1872. It has never been adversely commented on, and has been cited with approval in numerous cases, and has in fact determined the practice in chambers. Then the Judicature Act was passed, and it was thought right in 1883 to repeal the Common Law Procedure Act of 1852, and to embody the provisions of that Act in General Rules of Court. Sect. 16 of that Act was substantially re-enacted in the same words in Order IX., r. 8, without any indication that it was intended to alter the construction which had been put upon it eleven years before. From 1883 to the present time a considerable period has again elapsed, and I think that the course of procedure founded on that decision ought not now to be interfered with. But independently of that consideration I think

(1) Law Rep. 8 Ex. 149.

(2) 5 H. L. C. 416.

(3) Law Rep. 7 Q. B. 293.

the construction put upon the Common Law Procedure Act in that case was reasonable and proper. It is obvious that if we allow a foreign corporation to sue without the liability to be sued in this country, although it may be carrying on a large part of its business here, there would be a want of mutuality which one cannot regard as reasonable or right.

LOPES, L.J. If there had been no direct authority bearing on this case I should have thought that according to the true construction of Order IX., r. 8, it applied to a foreign corporation carrying on business in this country, but did not apply to a purely foreign corporation, that is one which does not carry on its business here, and is not within the jurisdiction of this country. In the present case the corporation carries on the business of banking, which is the principal part of its business, in this country. But there is a decision directly in point, not indeed on the construction of this particular rule, but upon the construction of the corresponding section of the Common Law Procedure Act, 1852. Mr. Bigham has tried to distinguish that case from the present, but has not succeeded; and he has asked us if necessary to overrule it. I agree with that decision, and if I did not, I should think it was too late to overrule it, having regard to the fact that the new rule was made with full notice of the construction which had been put upon s. 16. The appeal must therefore be dismissed.

Solicitors for defendants: Lyne & Holman.

Solicitors for plaintiff Haggin: Rowcliffes, Rawle & Co.

Solicitors for plaintiffs Mason & Barry: Hollams, Son, & Co.

M. W.