[QUEEN'S BENCH DIVISION]

NEWBY v. VON OPPEN AND THE COLT'S PATENT FIREARMS MANUFACTURING COMPANY.

Foreign Corporation - Liability to be sued in England - Practice - Service of Writ.

A foreign corporation, carrying on business in England, although not incorporated according to English law, may be sued as defendants in an English court, in respect of a cause of action which arose within the jurisdiction.

So held, on motion to set aside service of writ.

Service of a writ of summons on the head officer of an English branch of a foreign corporation carrying on business in England is good service, and it is not necessary to serve the process on the officer at the head office abroad.

RULE to set aside an order of one of the Masters.

The rule, the facts of the case, arguments, and cases cited, appear in the judgment.

Jan. 18. Manisty, Q.C., and Philbrick, shewed cause.

Edward Clarke, in support of the rule.

Jan. 31. The judgment of the Court ( Cockburn, C.J., Blackburn, Mellor, and Quain, JJ. ), was delivered by

BLACKBURN, J. This was a rule obtained to shew cause why an order of Master Unthank, setting aside the writ and service so far as regarded The Colt's Patent Firearms Manufacturing Company, should not be rescinded.

Cause was shewn in this term, before the Lord Chief Justice, my Brothers Mellor, Quain, and myself, by Mr. Manisty and Mr. Philbrick; and Mr. Clarke was heard in support of the rule; and the Court took time to consider.

The facts do not appear to have been very distinctly brought before the master at chambers, but we take them to be as follows: The Colt's Patent Firearms Manufacturing Company is not an English corporation; it is an American company, incorporated by American law; but this foreign corporation has a place of business in England, and there de facto carries on business just as an English corporation might do, though their principal place of

business and head office is in America. The contract which the plaintiff alleges to have been broken was, as he alleges, made in England by the foreign corporation thus carrying on business here. The writ was served on the manager of their business in England, who appears to be the head officer, and indeed the only officer, of their English branch, but who certainly was not the head officer of the American corporation in the United States.

Two points were raised and argued before us. It was said that a foreign corporation cannot he sued as defendants in an English court at all. If so, there is no remedy at all in an English court to enforce a contract made with a foreign corporation, inasmuch as the individuals who constitute the foreign corporation cannot be made liable personally on its contracts or for its torts: see General Steam Navigation Co. v. Guillou. (1)

There can be no doubt, since the cases of Dutch West India Co. v. Van Moses (2) and Henriques v. Dutch West India Co. (3) - which was a proceeding against the bail of the defendant in the other case, and was affirmed in the House of Lords - that a foreign corporation can sue as plaintiffs. Lord Raymond, in a note, tells us that the original cause was tried at nisi prius, before Lord King, when Chief Justice of the Common Pleas, in 1734, when it appeared that the cause of action accrued in Holland; and adds: "And upon the trial Lord Chancellor King told me he made the plaintiffs give in evidence the proper instruments whereby by the law of Holland they were effectually created a corporation there. And after hearing the objections made by the counsel for Jacob Senior Henriques Van Moyses, he directed the jury to find for the plaintiffs, who accordingly did, and gave them 13,720l. damages; and afterwards a motion was made in the Common Pleas to set aside the verdict; but by the unanimous opinion of that Court the motion was denied." This points to a difficulty which arose both in General Steam Navigation Co. v. Guillou (1) and in Ingate v. Austrian Lloyd's Co. (4), for it must often be a nice and difficult question whether a continental company is really, by the law of its own country, a corporation or not; but no such difficulty arises where the company is one belonging to Scotland, or one of our

(1) 11 M. & W. 877.

(2) 1 Str. 612.

(3) 2 Ld. Raym. 1532.

(4) 4 C. B. (N.S.) 704; 27 L.J. (C.P.) 323.

own colonies, or to those parts of the United States where the common law prevails. In the Carron Iron Co. v. Maclaren (1) the Master of the Rolls had granted an injunction against the appellants, a Scotch, and therefore a foreign, corporation. The injunction was dissolved on the ground that the appellants were foreigners, and as such entitled to the advantage which the law of their own country gave them; but no objection was raised on the ground that the court of equity could not treat a foreign corporation as a defendant. It is true that we are not aware of any reported case in which a foreign corporation has been sued in a court of law, but it seems to follow, from their being permitted to sue as plaintiffs, that they must be suable as defendants. It is, however, enough to say that we will not, on this ground, prevent the plaintiff from proceeding. The corporation may, if so advised, raise the question after appearing on the record.

The other and more difficult question is, whether the corporation has been properly served, supposing them to be suable. It was argued that the American corporation was resident in America, and must be served, if at all, as a foreigner resident out of the jurisdiction, subject to the difficulties which are pointed out in Ingate v. Austrian Lloyd's Co. (2) This would be so, if the foreign company had merely employed an agent here, who made a contract for them; but we think it is different where the foreign corporation actually has a place of business and trades in this country. This is a point of very considerable practical importance. There are already several Scotch banking corporations that have established branches in London. We see, from this case, that there is at least one American corporation that has set up a branch business here, and there will probably soon be more. Such a corporation does, for many purposes, reside both in England and in its own country. In the case of Carron Iron Co. v. Maclaren (3) Lord St. Leonards, taking a different view of the facts from that taken by Lords Brougham and Cranworth, thought the Scotch corporation was resident in England. We think that there is great good sense in what Lord St. Leonards states to be the law on his view of the facts. He says: "If the service on the agent is

(1) 5 H. L. C. 416.

(2) 4 C. B. (N.S.) 704; 27 L.J. (C.P.) 323.

(3) 5 H. L. C. at p. 459.

right, it is because, in respect of their house of business in England, they have a domicile in England; and, in respect of their manufactory in Scotland, they have a domicile there. There may be two domiciles and two jurisdictions; and in this case there are, as I conceive, two domiciles and a double sort of jurisdiction, one in Scotland and one in England; and for the purpose of carrying on their business one is just as much the domicile of the corporation as the other." The majority of the Lords took a different view of the facts, and thought that, though the corporation possessed property in England, and had agents there, they did not carry on business there; but we do not find that they differed from Lord St. Leonards' view of the law if they had agreed as to his facts; and in the present case the fact is clear that the American company are carrying on trade themselves in London, and therefore, we think, must be treated as resident there.

One more point has to be noticed. At common law the service of a writ on a corporation aggregate, which from the nature of the body could not be personal, was by serving it on a proper officer, so as to secure that it came to the knowledge of the corporation, and then proceeding by distress: see 1 Tidd's Practice, p. 121, ed. of 1828. The 2 Wm. 4, c. 39, s. 13, and 15 & 16 Vict. c. 76, s. 16, in fact only re-enact the old law as to what should be service on a corporation. The clerk or officer must be in the nature of a head officer, whose knowledge would be that of the corporation. We think that, when once it is established that the corporation is to be treated as resident in England, the proper officer is the officer at the English branch, and that it is not necessary to serve the process on the officer at the head office abroad.

We have been furnished, by the courtesy of Mr. Horace Lloyd, as amicus curiæ, with the papers in a case of Roberts v. Grand Trunk Ry. of Canada. (1) It appears that the defendants, being a Canadian corporation, had a board of directors who acted for them in England. The writ was served on the secretary of that board, and on an affidavit of service judgment was signed. Crowder, J., at chambers stayed all proceedings on the judgment. on the terms that the defendants should bring money into court.

(1) Not reported.

The case was, therefore, in its circumstances very similar to the present. The present Chief Justice of the Common Pleas, on an affidavit of these facts, and an affidavit of merits, obtained in the Exchequer a rule nisi to set aside the judgment. The rule was made absolute: "The defendants to appear in ten days. The money to remain in court to abide the order of the Court or a judge. Costs of the application to be costs in the cause."

If we could be sure that this was the judgment of the Court pronounced in invitos, it would seem clear that the Court of Exchequer thought the judgment regular, and only to be set aside on terms, and it would therefore be an authority in favour of the view we take. But we rather think that the matter was settled by the agreement of counsel, without the Court being called on to pronounce any opinion on the subject; and therefore we do not rely on this as a decision.

The result is that the rule in the present case must be made absolute.

Attorney for plaintiff: G. E. Thomas.

Attorneys for defendants: Harper, Broad, & Battcock.