[IN THE COURT OF APPEAL.]

DUNLOP PNEUMATIC TYRE COMPANY, LIMITED v. ACTIEN-GESELLSCHAFT FÜR MOTOR UND MOTORFAHRZEUGBAU VORM. CUDELL & CO.

Practice - Foreign Corporation - Service of Writ within the Jurisdiction - Foreign Company carrying on Business temporarily in England - Order IX., r. 8 - Order LXX., r. 3.

The defendants, a foreign corporation, who were manufacturers of motor-cars abroad, hired a "stand" at the Crystal Palace for the exhibition of articles of their manufacture at a cycle show, and exhibited at the show, which lasted for nine days, among other articles, a motor-car fitted with tyres, which were alleged by the plaintiffs to be an infringement of their patent. The defendants' "stand" was in charge of a person employed by them as their representative, whose duty it was to explain the working of the articles exhibited, and to take orders for and press the sale of the defendants' goods:-

Held, that, during the continuance of the show, the defendants were carrying on business so as to be resident at a place within the jurisdiction, and therefore could be served there with a writ in an action by the plaintiffs for infringement of their patent under Order IX., r. 8.

APPEAL from an order of Channell J. at chambers refusing to set aside the writ and service of the writ.

The action was by the owners of a patent for a pneumatic tyre against a foreign company, for an injunction to restrain the defendants from infringing the plaintiffs' patent and for damages for infringement of the same.

The defendants were incorporated according to the law of Germany, and carried on business in that country as manufacturers of motor-cars. Save as after mentioned they had no place of business in England. They had hired a "stand" at the Crystal Palace for the exhibition of articles of their manufacture at the National Cycle Show held there from November 22 to November 30, 1901. The defendants had during the show the exclusive use of the "stand," upon which their name was affixed, and had exhibited there, among other articles, a motor-car fitted with tyres, which were alleged by

the plaintiffs to be an infringement of their patent. The "stand" was in the charge of a man named Struck, who was in the defendants' employ, and whose duty it was to explain the working of the articles exhibited, and to take orders for and press the sale of the defendants' goods. Struck was neither a director nor the secretary of the defendant company. He had an assistant under him named MŸller, whose duty it was to take charge of the stand, and answer inquiries during the temporary absence of Struck. The writ in the action had, in the absence of Struck, been served on MŸller at the defendants' "stand" on November 27, 1901. The defendants, who had entered a provisional appearance, applied to the learned judge at chambers to set aside the writ and service, the ground stated in the summons being that the defendants were a foreign corporation resident out of the jurisdiction. The learned judge held that the defendants were carrying on business at a place within the jurisdiction at the time of service of the writ, and therefore could be served under Order IX., r. 8. The defendants asked for leave to amend the summons so as to raise the further point that the service, being upon MŸller, and not upon Struck, the head representative of the defendants, was not made on the right person under Order IX., r. 8, and was therefore irregular. (1) The learned judge refused leave to amend the summons on the ground that, if the defendants had raised this objection distinctly at first, the defect might have been cured by serving Struck, which was no longer possible. He therefore dismissed the defendants' application.

Danckwerts, K.C., and R. B. D. Acland, for the defendants. In the first place, the defendants ought to have leave to amend their summons in order to raise the point that the service of the writ on MŸller was irregular. The defendants are prepared to contend that even Struck was not a head officer of the defendants within the meaning of Order IX., r. 8, but clearly MŸller was not such an officer. Secondly, the result of the

(1) Order LXX., r. 3, provides that "where an application is made to set aside proceedings for irregularity, the several objections intended to be insisted upon shall be stated in the summons or notice of motion."

cases is that, in order to render a foreign corporation liable to be served with a writ within the jurisdiction, they must be carrying on business within the jurisdiction at some fixed place, which can be considered their place of business, in such a manner that they can be deemed to be resident there. It is not contended that for this purpose there must necessarily be an intention to carry on business within the jurisdiction permanently or for an indefinite time. It may possibly be that under some circumstances, though there was only an intention to carry on business at some place within the jurisdiction for a limited period, a foreign corporation might be deemed to have been resident within the jurisdiction during that period. But in each case all the circumstances under which the alleged business was carried on must be looked at, and it is an essential element that it should be carried on for a period which makes some approach to permanency. The idea of residence involves a certain degree of permanency. It cannot be said in this case that the defendants carried on business in this country so that they can be deemed to have been for any period resident here. Their business is the manufacture of motor-cars, which they carry on abroad; and they cannot be considered as having resided in this country so as to render them liable to be served here with a writ merely because, by way of advertisement, they sent over some motor-cars to be exhibited at a show for a period of nine days in charge of a servant of theirs, who had authority to take orders.

A "stand" at a show, such as the National Cycle Show, cannot be regarded as a place of business occupied by the defendants. It is merely a space marked out which they are licensed to use for the purpose of exhibiting their goods, but the Crystal Palace Company are the occupiers of the whole building, and the various exhibitors are subject to the regulations and conditions as to hours of opening and closing and other matters under which the show is carried on. Suppose a foreign company sent a traveller to this country, who occupied a room at an hotel for nine days, and there displayed samples of, and took orders for, the company's goods. It could not in such a case be said that the company resided for nine days

within the jurisdiction, but substantially there is no difference between that case and the present.

[They cited Newby v. Van Oppen (1); La Bourgogne (2); Haggin v. Comptoir d'Escompte de Paris (3); The Princess Clementine (4); Badcock v. Cumberland Gap Park Co. (5); Mackereth v. Glasgow and South Western Banking Co. (6)]

R. M. Bray, K.C., and A. J. Walter, for the plaintiffs, were not called upon.

COLLINS M.R. I am of opinion that this appeal must be dismissed. The question is whether, under the circumstances of this case, the defendants, who are a foreign company, can be made amenable to the jurisdiction of the High Court in this country. Two points have been raised in this Court, one being that the defendants, as a foreign corporation resident out of the jurisdiction, could not be served within the jurisdiction at all under Order IX., r. 8, and the other being that, assuming that they could be served, the service in this case was not made upon the right person under the rule. The only objection to the service formulated in the summons taken out by the defendants was that the defendants were a foreign corporation not resident within the jurisdiction, no point being made with regard to the service of the writ not having been upon the proper officer of the defendants. The learned judge refused to set aside the service of the writ on the ground mentioned in the summons, because the defendants were at the time of the service carrying on business in this country; and he refused to amend the summons so as to raise the point that Struck, and not Muller, was the person who should have been served.

The facts are as follows. The defendants appear to have hired premises at the Crystal Palace for the purpose of exhibiting their wares during the National Cycle Show; and they sent over a man in their employ, named Struck, whose duty it was on their behalf to look after the articles exhibited, and to push sales of the defendants' goods. They also sent over a

(1) (1872) L. R. 7 Q. B. 293.

(2) [1899] P. 1; [1899] A. C. 431.

(3) (1889) 23 Q. B. D. 519.

(4) [1897] P. 18.

(5) [1893] 1 Ch. 362.

(6) (1873) L. R. 8 Ex. 149.

man named MŸller to act as Struck's subordinate for the before-mentioned purposes, and the writ in the action was served upon MŸller. The learned judge, as I have said, refused to allow the defendants to amend their summons. The defendants admit that they cannot raise the point that the service was upon the wrong person without an amendment of the summons, and they accordingly ask us now to allow an amendment, so as to enable them to raise this point. It is a matter of discretion whether such an amendment should be allowed for the purpose of enabling the defendants to take a technical point of this kind, and I think that under the circumstances of this case it would be wrong for us to interfere with the exercise by the learned judge of his discretion in this respect.

The only question, therefore, which remains to be dealt with, is whether there was any power to serve the defendants with the writ under Order IX., r. 8. That rule, so far as material, provides that "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." It appears to me that, having regard to the decisions on this rule, Struck must be considered as a head officer of the defendants within its meaning. He was a person sent over by the defendant corporation as their representative to do for them in this country business of theirs, which, not being a concrete entity, they could not do for themselves like an ordinary individual, namely, the business of exhibiting and vending their wares at the show at the Crystal Palace. It seems to me that service of the writ could properly have been made upon him, as their head officer, assuming that the defendants could be served with the writ at all. In order to see whether they were liable to be so served, it is necessary to consider whether, upon the facts, they can be said to have been resident in England when the service was effected. It has been held in a number of cases, beginning with Newby v. Van Oppen (1) and ending with the case of

(1) L. R. 7 Q. B. 293.

La Bourgogne (1), that the true test in such cases is whether the foreign corporation is conducting its own business at some fixed place within the jurisdiction, that being the only way in which a corporation can reside in this country. It can only so reside through its agent, not being a concrete entity itself; but, if it so resides by its agent, it must be considered for this purpose as itself residing within the jurisdiction. In several of the cases decided on this subject the difficulty has been to determine whether the business carried on by an agent at a certain place within the jurisdiction was the business of the company itself carried on by that agent as representing them, or was really the business of the agent. With regard to that point very nice questions of fact have in some cases arisen. But in the present case we are relieved from any such difficulty. The defendants did not resort, for the purposes of their business, to some person who was himself carrying on an independent business of his own at some place in this country; and therefore we are not called on in this case to consider the question whether a foreign corporation, making use, for their purposes, of a person carrying on a business of his own, can under the circumstances be regarded as themselves carrying on their own business within the jurisdiction. A difficult question of that kind arose in the case of La Bourgogne. (1) There a foreign company employed as their agent in this country a person who also acted as agent for two other companies, and transacted their business on the same premises; and we held that the defendants were through him carrying on business in such a way as to be resident within the jurisdiction. No such difficulty arises here as arose in that case. Here the defendants hired premises for their own exclusive use, and did not resort for their purposes to some person who was carrying on an independent business, but employed their own servant to conduct the business. The only difficulty in this case arises from the fact that the time during which the defendants can be said to have carried on business in this country is limited to that of the duration of the show at the Crystal Palace, namely, nine days. It was argued by the counsel for the defendants

(1) [1899] P. 1; [1899] A. C. 431.

that, in determining the question of residence or no residence, length of time is an essential element. I agree that it is an element to be considered; but it was, as I understood, admitted that, if a foreign corporation were to announce their intention of carrying on their own business, and were to carry it on, at a certain place in this country for a limited period, the mere fact that they so carried it on only for a limited period would not prevent the company from being considered as resident within the jurisdiction for that period. The period of nine days is not necessarily a negligible quantity; it may in many cases be a very substantial period. In the case of an exhibition, such as the show in the present case, which is largely resorted to by manufacturers for the purpose of exhibiting a particular class of goods, and by customers desirous of purchasing such goods, as much business in the kind of goods exhibited might probably be done in nine days as in as many months in an ordinary town. I do not think that, where a foreign company carries on business in this country so as in all other respects to fulfil the conditions necessary to constitute residence within the jurisdiction, they can be said not to have so resided, merely because that residence was confined to a period such as nine days. In the present case I think we have in other respects all the elements necessary to constitute for this purpose residence by the defendants. It appears to be suggested that the defendants cannot be said to have carried on business in this country, because they did not carry on the whole of their business here. It was said that their business was that of manufacturers of motor-cars, and that manufacture was carried on abroad, and not at the Crystal Palace. It seems to me that it is only necessary to state that point in plain terms in order to confute it. It is clearly not necessary that a company should carry on the whole of its business in this country. A substantial part of the defendants' business was the selling of their manufactures, and that was during the show carried on here. Customers had during that period an opportunity of inspecting the defendants' wares, and prices were quoted, and orders accepted for them by the defendants. Nothing more could have been done with regard to the sale of the defendants'

wares at their place of business abroad. For these reasons I think the appeal must be dismissed.

ROMER L.J. I agree. The result of the authorities appears to me to be that, if for a substantial period of time business is carried on by a foreign corporation at a fixed place of business in this country, through some person, who there carries on the corporation's business as their representative and not merely his own independent business, then for that period the company must be considered as resident within the jurisdiction for the purpose of service of a writ. The facts of the present case appear to me to bring the defendants within that proposition. On that short ground I am of opinion that the appeal fails. With regard to the subsidiary point, I am also of opinion that leave to amend ought not to be given.

MATHEW L.J. I agree. With regard to the technical point, that the service should have been on Struck and not MŸller, I see no ground for overruling the exercise by the learned judge of his discretion as to an amendment of the summons. As to the other point, is there any doubt that, if the defendants were an English company, they could properly be said to have carried on business during the show at the "stand" hired by them for their exclusive use for the purposes of their business? I think that, on the facts of this case, all the conditions were fulfilled by the defendants, which, according to the decisions, are necessary in order to constitute residence within the jurisdiction by a foreign corporation. A corporation can, of course, only be said to reside anywhere in a figurative sense, and it has been held for the present purpose to reside in a place where it carries on its business.

Solicitors for plaintiffs: J. B. & F. Purchase.

Solicitors for defendants: Cruesemann & Rouse.

E. L.