PART I. PERSONS. her husband, and theretofore domiciled in England. Qu. how far the Court may exercise its jurisdiction, notwithstanding the want of an English domicil, if the respondent submit by CAP. IV. appearance, and taking practical steps in the cause, though a p 123. former submission in another cause is not sufficient. But residence not amounting to domicil, though insufficient to give jurisdiction for divorce, is sufficient to give jurisdiction for decrees for judicial separation, alimony, and (semble) restitution of conjugal rights. PART I. PERSONS. CHAPTER V. CAP. V. ARTIFICIAL AND CONVENTIONAL PERSONS, INCLUDING FOREIGN CORPORATIONS, STATES, SOVEREIGNS, AND AMBASSADORS. (i.) Foreign Corporations. Persons and THE principle that laws are commands addressed to persons, corporations. which has been referred to above,(a) renders it important to consider what entities come within that term. That corpora Artificial personality. tions created by statute or charter of the British Crown are It is plainly only by a legal fiction that a corporate body, being an abstract and intangible creation of the law, can be regarded as a person at all. This has given rise to doubts whether the personality so created can or ought to be recognised in the courts of any other Legislature than that which created it-whether, in fact, Great Britain or any other State has a right to create artificial persons which the Courts of other countries shall be bound to recognise. It is obviously only by a comity of nations, in the strictest sense of the word, that this recognition can be given. The courts of all countries are open prima facie to natural persons, and to no others; and PART I. PERSONS. CAP. V. Foreign an intangible body which claims to possess a certain unity and individuality of its own by the law of a foreign State, cannot claim, as of right, to be treated, beyond the jurisdiction of that State, on the footing of an ordinary rational human being. Such recognition, in fact, could only be accorded between Corporations. States whose systems of jurisprudence were characterised by the same general conceptions, and who had reached, approximately speaking, the same stage of civilisation. It would be impossible, unless these conditions were complied with, that the ordinary attributes of a person, such as domicil and capacity, could be consistently applied to these creations of a foreign law; and unless a foreign corporation which claimed our recognition was, by the law of the State which created it, substantially the same thing as a corporation created by statute or charter here, we should be unable to recognise it at all.(a) Inasmuch as no State can validly create a body corporate with authority to act or contract beyond its own territorial limits, there would at first sight appear to be some difficulty in admitting the right of a body corporate to sue in a foreign country on a contract there made, or for a tort there committed; and there appear to be some Canadian authorities against such a right being accorded.(b) The right, however, of a foreign Corporation to sue in this country is conferred by English law, and not by the law of the State which created it; and necessarily depends on the extent to which recognition is accorded to the law of such State. It is, however, noticeable, that this point has been assumed rather than decided in this country.(c) The principle that a foreign corporation may sue as plaintiff Right of a by its corporate name in an English court was decided as long corporation foreign (a) General Steam Navigation Co. v. Guillon, 11 M. & W. 877; Ingate v. Austrian Lloyd's, 4 C. B. N. S. 704; 27 L. J. C. P. 323. (b) Lindley on Companies, 6th ed. p. 1222; citing Canadian judgments in Bank of Montreal v. Bethune, 4 Upp. Can. Q.B. 341; Genesee Mutual Insurance Co. v. Westman, 8 Cpp. Can. Q. B. 487; Union Rubber Co. v. Hubbard, 6 Upp. Can. C. P. 77. The learned editor, however, points out that these are really decisions on questions of ultra rires. (c) See Saunders v. Sun Life Co. of Canada (1894), 1 Ch. 293; Newby v. Van Oppen, L. R. 7 Q.B. 293; and Lindley on Companies, 6th ed. 1222, cited above. Conventions have been entered into between Great Britain and several foreign States for the mutual recognition of companies and associations, commercial, industrial, or financial, constituted and authorised by the laws of either of the contracting States. The following conventions will be found in Hertslet's Commercial Treaties, at the references given below:-France (vol. xi. 218, xiv. 1036); Belgium (vol. xi. 74); Germany (vol. xiv. 374); Greece (vol. xii. 519); Italy (vol. xii. 1144); Spain (vol. xv. 1056); Tunis (vol. xiv. 547) ; and as to insurance companies (Austria) see vol. xv. 9. See Buckley on Companies, 5th ed., pp. 674-676. to sue. PART 1. PERSONS. CAP. V. Foreign ago as 1730 in The Dutch West India Co. v. Van Moses (a) and Henriques v. Dutch West India Co.,(b) the latter of which was an appeal against a judgment on a scire facias brought by the plaintiffs in the first action against the bail of the defendant in Corporations. that case. It was contended in argument for the appellants, that no recognisance in England could be given to this Generalis privilegiata societas Belgica ad Indos Occidentales negotians, inasmuch as the law of England did not take notice of any foreign corporation, nor could any foreign corporation in their corporate name and capacity maintain any action at common law in this kingdom. It was held, however, both by the King's Bench and the House of Lords, that the objection was untenable. In a note added by Lord Raymond to the report, it is said that the original action by the Dutch company, which was for money lent, &c., was tried at Nisi Prius before Lord King in 1734, when it appeared that the cause of action accrued in Holland. Lord Raymond proceeds: "Upon the trial, Lord Chancellor King told me he made the plaintiff 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 counsel, he directed the jury to find for the plaintiffs; who accordingly did, and gave them £13,720 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."(c) This decision has been recognised and adopted in subsequent cases,(d) and the principle that a foreign corporation may sue as plaintiffs cannot therefore now be questioned. It must, however, be taken subject to the qualification already referred to, that the foreign corporation, so called, must be something with the constitution and attributes of a body incorporated by English law. It was answered in argument to Lord Abinger, who said that the Court did not know what a corporation meant in France, that it was enough if the body referred to had in France the same incidents and immunities as a corporation in England.(e) So Byles, J., says: "I doubted, and I still doubt, whether s. 16 (of the Common Law Procedure Act, 1852) can apply to a foreign (a) 1 Str. 612. (c) 2 Ld. Raym. 1535. (b) 2 Ld. Raym. 1532. (d) South Carolina Bank v. Case, 8 B. & C. 427; National Bank of St. Charles v. De Bernales, Ry. & M. N. P. C. 190; Newby v. Colt's Patent Firearms Co., L. R. 7 Q. B. 293; Scott v. Royal Wax Candle Co., L. R. 1 Q. B. D. 404; Westman v. A. E. Snickarefabrik, L. R. 1 Ex. D. 237. (e) General Steam Navigation Co. v. Guillon, 11 M. & W. 877, 889. PART I. PERSONS. CAP. V. Foreign corporation trading abroad. We have no means of knowing the constitution and attributes of such a body. It may be altogether different from our incorporated companies."(a) In the case last cited, the statute referred to was held not to have been intended to apply to foreign corporations; but the decision Corporations. must be regarded as open to suspicion, having been questioned by Quain, J., in the later case of Scott v. Royal Wax Candle Co.(b) And it will be seen that in later cases the applicability to foreign corporations of Order IX. r. 8 (Judicature Acts), which is practically a re-enactment of the section above mentioned, has been fully recognised.(c) But the principle does not extend to foreign partnerships.(d) It has been recognised that a foreign corporation can apply under s. 103 of the Patents Act 1883 (46 & 47 Vict. c. 57).(e) The principle that foreign corporations might be recognised Liability of when suing as plaintiffs was not extended to their appearance corporation a foreign as defendants until a considerably later date. It was pointed to be sued. out by Williams, J., in Ingate v. Austrian Lloyds,(f) that there was then (1858) no precedent for admitting foreign corporations to defend an action at law in their corporate capacity; but they had certainly been treated as defendants in the Courts of Chancery, and in Carron Iron Co. v. Maclaren (g) an injunction was granted by the Master of the Rolls against a Scotch, i.e., a foreign, corporation. In the latter case, though objection was taken to the sufficiency of the service, and the presence of the company within the jurisdiction was denied, it was not contended that an English Court was incompetent to treat a foreign corporation as defendants, if proper service of the writ was effected upon them. It was not, however, directly held that it was competent to do so until Newby v. Van Oppen.(h) "It is true that we are not aware," said Blackburn, J., "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 (a) Ingate v. Austrian Lloyd's, 4 C. B. N. S. 704. Colquhoun v. Heddon, 24 Q. B. D. 491; 59 L. J. Q. B. 142. Cf. the judgments in (b) L. R. 1 Q. B. D. 404, at p. 409; and see per Bramwell, B., Westman v. A. E. Snickarefabrik, L. R. 1 Ex. D. 237, 240. (c) Scott v. Royal Wax Candle Co. (ante), and Mason v. Comptoir d'Escompte de Paris, infrà. (d) Russell v. Cambefort, 23 Q. B. D. 526. (e) Re Société du Temple, 13 Rep. Pat. Ca. 54; Re Carey, 6 Rep. Pat. Ca. 552. (f) 4 C. B. N. S. 704, 709. (g) 5 H. L. C. 416 (1855); so service ordered by Court of Chancery on an Irish corporation in Lewis v. Baldwin, 11 Beav. 153; see Maclaren v. Stainton, 16 Beav. 285. (h) L. R. 7 Q. B. 293. Recently the same principle has been recognised in Mason v. Comptoir d'Escompte de Paris and Haggin v. Same, W. N. 1889, p. 129. See infrà. |